A.Probation. The court shall have the power to suspend or defer a sentence and impose conditions of probation during the period of suspension or deferral.B.Violation of probation. At any time during probation if it appears that the probationer may have violated the conditions of probation (1) the court may issue a warrant or bench warrant for the arrest of a probationer for violation of any of the conditions of probation. The warrant shall order the probationer to the custody of the court or to any suitable detention facility;(2) the court may issue a notice to appear to answer a charge of violation.C.Initial hearing. (1)Probationer not in custody. A probationer who is not in custody shall be noticed to appear not more than fifteen (15) days after the filing of a probation violation or, if no violation is filed, not more than fifteen (15) days after the court has reason to believe that the probationer may have violated the conditions of probation.(2)Probationer in custody. A probationer who is in custody within this state shall be arraigned on the probation violation as soon as practicable, but in any event no later than three (3) days after the probationer is detained if the probationer is being held in the local detention center, or no later than five (5) days after the probationer is detained if the probationer is not being held in the local detention center.D.Adjudicatory hearing. On notice to the probationer, the court shall hold a hearing on the violation charged. If the probationer is in custody the hearing shall be held as soon as practicable, but in any event no later than ten (10) days after the initial hearing. If the probationer is not in custody the hearing shall be held no later than thirty (30) days after the initial hearing. If the violation is established, the court may continue the original probation, revoke the probation and either order a new probation or require the probationer to serve the balance of the sentence imposed or any lesser sentence. If imposition of sentence was deferred, the court may impose any sentence which might originally have been imposed, but credit shall be given for time served on probation, unless that credit is specifically prohibited by statute or ordinance.E.Appeals. The decision of the court to revoke probation may be appealed to the district court as otherwise provided in these rules. The only issue the district court will address on appeal will be the propriety of the revocation of probation. The district court shall not modify the sentence of the municipal court.N.M. R. Mun. Ct. P. 8-802
As amended, effective 9/1/1989;5/1/2002; as amended by Supreme Court Order No. 13-8300-007, effective for all cases pending or filed on or after5/5/2013; as amended by Supreme Court Order No. 21-8300-027, effective for all cases pending or filed on or after 12/31/2021; as amended by Supreme Court Order No. S-1-RCR-2023-00021, effective for all cases pending or filed on or after 12/31/2023.Committee commentary. - "Local detention center" is defined as "one that is commonly used by the municipal court in the normal course of business and not necessarily within the territorial jurisdiction of the court." Rule 8-401(A)(3) NMRA.
[Adopted by Supreme Court Order No. S-1-RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023.]
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-007, effective May 5, 2013, required the court to give credit for time served on probation if the court imposes a new sentence unless the credit is specifically prohibited by statute or ordinance; and in Paragraph C, in the third sentence, after "time served on probation", added "unless such credit is specifically prohibited by statute or ordinance". The 2002 amendment, effective May 1, 2002, in Paragraph A, deleted "violation of probation" in the bold heading and deleted the second sentence relating to the violation of probation; and rewrote Pargraphs B and C relating to issuance of warrants and imposition of sentence, respectively. The 1989 amendment, effective for cases filed in the municipal courts on or after September 1, 1989, substituted the present second sentence of Paragraph C for the former second sentence, which read "Credit must be given for the time served on probation". Crediting of time served on probation. - A reading of Subsections B and C of 31-21-15 NMSA 1978, together, indicates that all time served on probation shall be credited unless the defendant is a fugitive. State v. Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170.