2021 New Mexico Statutes
Article 20 - Sentencing
Section 31-20-13 - Conditional discharge order; exception.

A. When a person who has not been previously convicted of a felony offense is found guilty of a crime for which a deferred or suspended sentence is authorized, the court may, without entering an adjudication of guilt, enter a conditional discharge order and place the person on probation on terms and conditions authorized by Sections 31-20-5 and 31-20-6 NMSA 1978. A conditional discharge order may only be made available once with respect to any person.
B. If the person violates any of the conditions of probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law.
C. The court shall not enter a conditional discharge order for a person found guilty of driving a motor vehicle while under the influence of intoxicating liquor or drugs, pursuant to the provisions of Section 66-8-102 NMSA 1978.
History: Laws 1993, ch. 283, § 2 enacted as 31-20-7 NMSA 1978 and recompiled as 31-20-13 NMSA 1978; 1994, ch. 15, § 1.
The 1994 amendment, effective February 25, 1994, added "exception" at the end of the section heading, added the second sentence in Subsection A and added Subsection C.
Compiler's notes. — Laws 1993, ch. 283, § 2 enacted this section as a new 31-20-7 NMSA 1978. However, this section has been compiled as 31-20-13 NMSA 1978 in order to avoid confusion with repealed section 31-20-7 NMSA 1978 which has been construed or cited in a number of New Mexico decisions.
A conditional discharge is not a conviction. — Where the district court had entered a conditional discharge order in a prior criminal proceeding against defendant; the order was entered without an adjudication of guilt and with a sentencing term; defendant's probation was subsequently revoked and defendant was placed back on probation; a year later, defendant's probation was again revoked and the district court ordered that defendant be incarcerated; and the district court did not revoke defendant's conditional discharge, the district court did not err by dismissing a later felon in possession charge against defendant on the ground that defendant's conditional discharge had not been revoked and could not serve as the predicate felony for the felon in possession charge. State v. Harris, 2013-NMCA-031, 297 P.3d 374.
A conditional discharge constitutes a "prior sentence" for federal sentencing purposes. — Where defendant pled guilty to possession with intent to distribute controlled substances in federal court, defendant's conditional discharge in a prior state criminal proceeding was considered a "prior sentence" rather than a prior conviction for purposes of federal sentencing, because the New Mexico conditional discharge statute requires a finding of guilt. United States v. Ornelas-Yanez, 77 F.Supp.3d 1083 (D.N.M. 2014)
An offender subject to a conditional discharge is still "under indictment" for purposes of federal firearms statute. — An offender subject to a conditional discharge in state court is still "under indictment" within the meaning of federal firearms statute, 18 U.S.C. § 922(n), until the condition, the completion of the term of probation, is met, because under a conditional discharge, the charges in the indictment are not extinguished upon the guilty plea or verdict, but remain in suspension until the defendant completes his term of probation. United States v. Saiz, 797 F.3d 853 (10th. Cir. 2015)
Where defendant committed federal firearms offenses while still on probation in state court pursuant to a conditional discharge where he pleaded guilty to burglary, larceny and battery, and where the state district court judge placed defendant on probation without an adjudication of guilt on the state crimes, the federal district court judge did not err in adding two sentencing enhancements after finding that defendant was "under indictment" for the state crimes as long as he was subject to the terms of conditional discharge and, therefore, had been under indictment when he committed the federal crimes. United States v. Saiz, 797 F.3d 853 (10th. Cir. 2015)
The conditional discharge statute does not grant the authority to expunge criminal records. State v. C. L., 2010-NMCA-050, 148 N.M. 837, 242 P.3d 404.
Failure to show exceptional circumstances to expunge criminal records. — Where defendant was charged as an accessory to negligent child abuse; defendant pleaded guilty to child abuse resulting in great bodily harm; defendant was granted a conditional discharge and was released early due to defendant's satisfactory compliance with the terms of release; defendant was denied employment opportunities as a result of defendant's criminal record; defendant had been industrious and continued defendant's education; and defendant had no prior criminal record, assuming that the district court has inherent authority to order the expungement of criminal records, defendant failed to demonstrate the existence of exceptional circumstances necessary to exercise that authority. State v. C. L., 2010-NMCA-050, 148 N.M. 837, 242 P.3d 404.
Legislative intent. — The legislature's intent is that a defendant receive credit for time served on supervised probation under the terms of a conditional discharge. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
This section provides an exception for certain first-time felons whose convictions meet requirements in addition to the eligibility requirements for a deferred or suspended sentence. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Subsection A of this section expressly incorporates probation statutes that apply to a person serving a deferred sentence. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Person who is eligible to receive conditional discharge is by definition one who is entitled to a deferred sentence. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Deferred sentence modified to conditional discharge. — Modification from a deferred sentence to a conditional discharge was an authorized sentence reduction under this section and Rule 5-801 NMRA. State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177.
Sex offender registration. — A person granted a conditional discharge under this section is not required to register as a sex offender. State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177.
Notice requiring defendant to register as a sex offender pursuant to 29-11A-7 NMSA 1978 did not need to be placed in a conditional discharge order. State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177.
Appealability of order. — A conditional discharge order in a felony prosecution is sufficiently final to be appealable, but a similar order in a criminal contempt prosecution is not, at least when the order does not require any action or behavior on the part of the contemnor other than to obey the law in the future. State v. Durant, 2000-NMCA-066, 129 N.M. 345, 7 P.3d 495.
Conditional discharge order final for purposes of appeal. — Where defendant appealed from an order of conditional discharge following his trial for criminal trespass, the district court's order was final for purposes of appeal because defendant was subject to significant collateral consequences as a result of his conditional discharge, including claims that he would be required to disclose the fact of his conviction on applications for employment, college, and other future pursuits. State v. Merhege, 2016-NMCA-059, rev'd on other grounds, 2017-NMSC-016.