HOUSE BILL 783

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Brian K. Moore

AN ACT

RELATING TO CRIMINAL SENTENCING; REQUIRING PARTICIPATION IN A SEX OFFENDER TREATMENT PROGRAM AS A CONDITION OF PROBATION FOR SEX OFFENDERS; ELIMINATING LIMITATIONS ON USE OF PRIOR FELONY CONVICTIONS FOR HABITUAL SEX OFFENDERS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977, Chapter 216, Section 6, as amended) is amended to read:

     "31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC SENTENCE.--

          A. A person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred one prior felony conviction that was part of a separate transaction or occurrence or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by one year. The sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that the prior felony conviction and the instant felony conviction are both for nonviolent felony offenses and that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection.

          B. A person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by four years. The sentence imposed by this subsection shall not be suspended or deferred.

          C. A person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred three or more prior felony convictions that were parts of separate transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by eight years. The sentence imposed by this subsection shall not be suspended or deferred.

          D. As used in this section, "prior felony conviction" means: 

                (1) a conviction, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for a prior felony committed within New Mexico whether within the Criminal Code or not, but not including a conviction for [a felony pursuant to the provisions of]:

                     (a) driving under the influence of intoxicating liquor or drugs or aggravated driving under the influence of intoxicating liquor or drugs, as provided in Section 66-8-102 NMSA 1978; [or]

                     (b) criminal sexual penetration in the first, second, third or fourth degree, as provided in Section 30-9-11 NMSA 1978;

                     (c) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;

                     (d) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;

                     (e) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;

                     (f) kidnapping, as provided in Section 30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

                     (g) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

                     (h) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;

                     (i) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age; or

                     (j) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or

                (2) a prior felony, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for which the person was convicted other than an offense triable by court martial if:

                     (a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;

                     (b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or

                     (c) the offense would have been classified as a felony in this state at the time of conviction.

          E. As used in this section, "nonviolent felony offense" means application of force, threatened use of force or a deadly weapon was not used by the offender in the commission of the offense."

     Section 2. Section 31-20-5.2 NMSA 1978 (being Laws 2003 (1st S.S.), Chapter 1, Section 7) is amended to read:

     "31-20-5.2. SEX OFFENDERS--PERIOD OF PROBATION--TERMS AND CONDITIONS OF PROBATION.--

          A. When a district court defers imposition of a sentence for a sex offender, or suspends all or any portion of a sentence for a sex offender, the district court shall include a provision in the judgment and sentence that specifically requires the sex offender to serve an indeterminate period of supervised probation for a period of not less than five years and not in excess of twenty years. A sex offender's period of supervised probation may be for a period of less than twenty years if, at a review hearing provided for in Subsection B of this section, the state is unable to prove that the sex offender should remain on probation. Prior to placing a sex offender on probation, the district court shall conduct a hearing to determine the terms and conditions of supervised probation for the sex offender. The district court may consider any relevant factors, including:

                (1) the nature and circumstances of the offense for which the sex offender was convicted or adjudicated;

                (2) the nature and circumstances of a prior sex offense committed by the sex offender;

                (3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;

                (4) the danger to the community posed by the sex offender; and

                (5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate district court personnel.

          B. A district court shall review the terms and conditions of a sex offender's supervised probation at two and one-half year intervals. When a sex offender has served the initial five years of supervised probation, the district court shall also review the duration of the sex offender's supervised probation at two and one-half year intervals. When a sex offender has served the initial five years of supervised probation, at each review hearing the state shall bear the burden of proving to a reasonable certainty that the sex offender should remain on probation.

          C. The district court may order a sex offender placed on probation to abide by reasonable terms and conditions of probation, including:

                (1) being subject to intensive supervision by a probation officer of the corrections department;

                [(2) participating in an outpatient or inpatient sex offender treatment program;

                (3)] (2) a probationary agreement by the sex offender not to use alcohol or drugs;

                [(4)] (3) a probationary agreement by the sex offender not to have contact with certain persons or classes of persons; and

                [(5)] (4) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of his probation.

          D. The district court shall order a sex offender placed on probation to participate in an outpatient or inpatient sex offender treatment program as a term and condition of probation.

          [D.] E. The district court shall notify the sex offender's counsel of record of an upcoming probation hearing for a sex offender, and the sex offender's counsel of record shall represent the sex offender at the probation hearing. When a sex offender's counsel of record provides the court with good cause that the counsel of record should not represent the sex offender at the probation hearing and the sex offender is subsequently unable to obtain counsel, the district court shall notify the chief public defender of the upcoming probation hearing and the chief public defender shall make representation available to the sex offender at that hearing.

          [E.] F. If the district court finds that a sex offender has violated the terms and conditions of his probation, the district court may revoke his probation or may order additional terms and conditions of probation.

          [F.] G. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:

                (1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;

                (2) criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;

                (3) criminal sexual contact of a minor in the second or third degree, as provided in Section 30-9-13 NMSA 1978;

                (4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978; or

                (5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978."

     Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.

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