HOUSE BILL 657

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

William "Bill" R. Rehm

AN ACT

RELATING TO CRIMINAL FINES, FEES AND COSTS; REQUIRING COMMUNITY SERVICE IF A DEFENDANT IS UNABLE TO PAY PROBATION OR PAROLE COSTS OR OTHER FINES OR FEES.

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

     Section 1. Section 31-12-3 NMSA 1978 (being Laws 1971, Chapter 236, Section 1, as amended) is amended to read:

     "31-12-3. PAYING FINES, FEES OR COSTS IN INSTALLMENTS--

COMMUNITY SERVICE OPTION.--

          A. [Any] A person sentenced to pay a fine or to pay fees and costs in any criminal proceeding [against him], either in addition to or without a term of imprisonment, may in the discretion of the court be allowed to pay such fine, fees or costs in installments of such amounts, at such times and upon such conditions as the court may fix. The defendant may also be required to serve a period of time in labor to be known as "community service" in lieu of all or part of the fine. If unable to pay the fees or costs, [he may be granted permission] the defendant shall be required to perform community service [in lieu of them as well]. The labor shall be meaningful, shall not be suspended or deferred and shall be of a type that benefits the public at large or any public, charitable or educational entity or institution and is consistent with Article 9, Section 14 of the constitution of New Mexico. Any person performing community service pursuant to court order shall be immune from civil liability arising out of the community service other than for gross negligence, shall not be entitled to wages or considered an employee for any purpose and shall not be entitled to workers' compensation, unemployment or any other benefits otherwise provided by law. Instead, a person who performs community service shall receive credit toward the fine, fees or costs at the rate of the prevailing federal hourly minimum wage. Unless otherwise provided, however, the total fine, fees and costs shall be payable forthwith.

          B. The court may at any time revise, modify, reduce or enlarge the amount of the installment or the time and conditions fixed for payment of it.

          C. When a defendant sentenced to pay a fine in installments or ordered to pay fees or costs defaults in payment, the court, upon motion of the prosecutor or upon its own motion, may require the defendant to show cause why [his] the defendant's default should not be treated as contumacious and may issue a summons or a warrant of arrest for [his] the defendant's appearance. It shall be a defense that the defendant did not willfully refuse to obey the order of the court or that [he] the defendant made a good faith effort to obtain the funds required for the payment. If the defendant's default was contumacious, the court may order [him] the defendant committed until the fine or a specified part of it or the fees or costs are paid. The maximum term of imprisonment for such contumacious nonpayment shall be specified in the order of commitment.

          D. If it appears that a defendant's default in the payment of a fine, fees or costs is not contumacious, the court may allow the defendant additional time for payment [reduce the amount of the fine or of each installment, revoke the fine or the unpaid portion in whole or in part] or require the defendant to perform community service in lieu of the fine, fees or costs."

     Section 2. Section 31-20-6 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-18, as amended) is amended to read:

     "31-20-6. CONDITIONS OF ORDER DEFERRING OR SUSPENDING SENTENCE.--The magistrate, metropolitan or district court shall attach to its order deferring or suspending sentence reasonable conditions as it may deem necessary to ensure that the defendant will observe the laws of the United States and the various states and the ordinances of any municipality. The defendant upon conviction shall be required to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to [his] the defendant's arrest, prosecution or conviction, but in no event shall reimbursement to the crime stopper program preempt restitution to victims pursuant to the provisions of Section 31-17-1 NMSA l978. The defendant upon conviction shall be required to pay the actual costs of [his] the defendant's supervised probation service to the adult probation and parole division of the corrections department or appropriate responsible agency for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised probation costs shall not be waived unless the court holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the court [waives the defendant's payment of the supervised probation costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the court and the court shall hold an evidentiary hearing to determine whether the waiver should be rescinded] finds that the defendant is unable to pay the costs, the defendant shall be required to perform community service and shall receive credit toward the payment of probation costs at the rate of the prevailing federal hourly minimum wage. The labor shall be meaningful, shall not be suspended or deferred and shall be of a type that benefits the public at large or a public, charitable or educational entity or institution. A person performing community service pursuant to court order shall be immune from civil liability arising out of the community service other than for gross negligence, shall not be entitled to wages or considered an employee for any purpose and shall not be entitled to workers' compensation, unemployment or any other benefit. The court may also require the defendant to:

          A. provide for the support of persons for whose support [he] the defendant is legally responsible;

          B. undergo available medical or psychiatric treatment and enter and remain in a specified institution when required for that purpose;

          C. be placed on probation under the supervision, guidance or direction of the adult probation and parole division for a term not to exceed five years;

          D. serve a period of time in [volunteer labor to be known as] community service [The type of labor and period of service shall be at the sole discretion of the court; provided that a person receiving community service shall be immune from any civil liability other than gross negligence arising out of the community service, and a person who performs community service pursuant to court order or a criminal diversion program shall not be entitled to wages, shall not be considered an employee and shall not be entitled to workers' compensation, unemployment benefits or any other benefits otherwise provided by law. As used in this subsection, "community service" means labor that benefits the public at large or a public, charitable or educational entity or institution];

          E. make a contribution of not less than ten dollars ($10.00) and not more than one hundred dollars ($100), to be paid in monthly installments of not less than five dollars ($5.00), to a local crime stopper program or a local drug abuse resistance education program that operates in the territorial jurisdiction of the court; and

          F. satisfy any other conditions reasonably related to [his] the defendant's rehabilitation."

     Section 3. Section 31-21-10 NMSA 1978 (being Laws 1980, Chapter 28, Section 1, as amended) is amended to read:

     "31-21-10. PAROLE AUTHORITY AND PROCEDURE.--

          A. An inmate of an institution who was sentenced to life imprisonment as the result of the commission of a capital felony, who was sentenced to life imprisonment as the result of a conviction for a first degree felony resulting in the death of a child, who was convicted of three violent felonies and sentenced pursuant to Sections 31-18-23 and 31-18-24 NMSA 1978 or who was convicted of two violent sexual offenses and sentenced pursuant to Subsection A of Section 31-18-25 NMSA 1978 and Section 31-18-26 NMSA 1978 becomes eligible for a parole hearing after [he] the inmate has served thirty years of [his] the inmate's sentence. Before ordering the parole of an inmate sentenced to life imprisonment, the board shall:

                (1) interview the inmate at the institution where [he] the inmate is committed;

                (2) consider all pertinent information concerning the inmate, including:

                     (a) the circumstances of the offense;

                     (b) mitigating and aggravating circumstances;

                     (c) whether a deadly weapon was used in the commission of the offense;

                     (d) whether the inmate is a habitual offender;

                     (e) the reports filed under Section

31-21-9 NMSA 1978; and

                     (f) the reports of such physical and mental examinations as have been made while in an institution;

                (3) make a finding that a parole is in the best interest of society and the inmate; and

                (4) make a finding that the inmate is able and willing to fulfill the obligations of a law-abiding citizen.

     If parole is denied, the inmate sentenced to life imprisonment shall again become entitled to a parole hearing at two-year intervals. The board may, on its own motion, reopen any case in which a hearing has already been granted and parole denied.

          B. Unless the board finds that it is in the best interest of society and the parolee to reduce the period of parole, a person who was convicted of a capital felony shall be required to undergo a minimum period of parole of five years. During the period of parole, the person shall be under the guidance and supervision of the board.

          C. Except for sex offenders as provided in Section 31-21-10.1 NMSA 1978, an inmate who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a two-year period of parole. An inmate who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the board.

          D. Every person while on parole shall remain in the legal custody of the institution from which [he] the person was released, but shall be subject to the orders of the board. The board shall furnish to each inmate as a prerequisite to [his] the inmate's release under its supervision a written statement of the conditions of parole that shall be accepted and agreed to by the inmate as evidenced by [his] the inmate's signature affixed to a duplicate copy to be retained in the files of the board. The board shall also require as a prerequisite to release the submission and approval of a parole plan. If an inmate refuses to affix [his] the inmate's signature to the written statement of the conditions of [his] the inmate's parole or does not have an approved parole plan, [he] the inmate shall not be released and shall remain in the custody of the institution in which [he] the inmate has served [his] the inmate's sentence, excepting parole, until such time as the period of parole [he] the inmate was required to serve, less meritorious deductions, if any, expires, at which time [he] the inmate shall be released from that institution without parole, or until such time that [he] the inmate evidences [his] acceptance and agreement to the conditions of parole as required or receives approval for [his] the inmate's parole plan or both. Time served from the date that an inmate refuses to accept and agree to the conditions of parole or fails to receive approval for [his] the inmate's parole plan shall reduce the period, if any, to be served under parole at a later date. If the district court has ordered that the inmate make restitution to a victim as provided in Section 31-17-1 NMSA 1978, the board shall include restitution as a condition of parole. The board shall also personally apprise the inmate of the conditions of parole and [his] the inmate's duties relating thereto.

          E. When a person on parole has performed the obligations of [his] the person's release for the period of parole provided in this section, the board shall make a final order of discharge and issue [him] the person a certificate of discharge.

          F. Pursuant to the provisions of Section 31-18-15 NMSA 1978, the board shall require the inmate as a condition of parole:

                (1) to pay the actual costs of [his] parole services to the adult probation and parole division of the corrections department for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised parole costs shall not be waived unless the board holds an evidentiary hearing and finds that the defendant is unable to pay the costs. [If the board waives the defendant's payment of the supervised parole costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the board and the board shall hold an evidentiary hearing to determine whether the waiver should be rescinded]. If the board finds that the defendant is unable to pay the costs, the defendant shall be required to perform community service and shall receive credit toward the payment of parole services at the rate of the prevailing federal hourly minimum wage. The labor shall be meaningful, shall not be suspended or deferred and shall be of a type that benefits the public at large or a public, charitable or educational entity or institution. A person performing community service pursuant to this paragraph shall be immune from civil liability arising out of the community service other than for gross negligence, shall not be entitled to wages or considered an employee for any purpose and shall not be entitled to workers' compensation, unemployment or any other benefit; and

                (2) to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to [his] the inmate's arrest, prosecution or conviction.

          G. The provisions of this section shall apply to all inmates except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act."

     Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.

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