SENATE BILL 367
50th legislature - STATE OF NEW MEXICO - second session, 2012
INTRODUCED BY
Sander Rue
AN ACT
RELATING TO RESTITUTION; PROVIDING THAT A CRIMINAL DEFENDANT'S OBLIGATION TO PAY RESTITUTION CONTINUES AFTER COMPLETION OF ANY PROBATION OR PAROLE PERIODS; PROVIDING THAT A COURT SHALL AWARD FULL RESTITUTION IN MOST CASES; REQUIRING A DEFENDANT TO PREPARE FINANCIAL DISCLOSURE STATEMENTS; PROVIDING THAT AN ORDER OF RESTITUTION SATISFIES THE APPLICATION REQUIREMENTS FOR WRITS OF GARNISHMENT AND ATTACHMENT OF DEFENDANT'S PROPERTY; ALLOWING DISTRICT ATTORNEYS TO ENFORCE ORDERS OF RESTITUTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-17-1 NMSA 1978 (being Laws 1977, Chapter 217, Section 2, as amended) is amended to read:
"31-17-1. VICTIM RESTITUTION--STOLEN PROPERTY.--
A. It is the policy of this state that full restitution be made by each [violator of] person who commits a crime, whether in the Criminal Code or not, to the victims of [his] the defendant's criminal activities to the extent that the defendant is reasonably able to do so. This section shall be interpreted and administered to effectuate this policy. As used in this section, unless the context otherwise requires:
(1) "victim" means any person who has suffered actual damages as a result of the defendant's criminal activities;
(2) "actual damages" means all damages [which] that a victim could recover against the defendant in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish and loss of consortium. Without limitation, "actual damages" includes damages for wrongful death;
(3) "criminal activities" includes any crime for which there is a plea of guilty or verdict of guilty, upon which a judgment may be rendered and any other crime committed after July 1, 1977 [which] that is admitted or not contested by the defendant; and
(4) "restitution" means [full or partial] payment of actual damages to a victim.
[B. If the trial court exercises either of the sentencing options under Section 31-20-6 NMSA 1978, the court shall require as a condition of probation or parole that the]
B. In every case in which a victim has suffered injury, death or economic loss as a result of a defendant's criminal activities, the court shall require the defendant to make full restitution of actual damages to the victim or victims in an amount established by court order. The order of restitution shall identify each victim and the loss to each victim and shall be of an amount that is sufficient to fully reimburse each victim for actual damages incurred as the result of a defendant's criminal conduct. Full restitution shall be ordered unless the court finds compelling or extraordinary reasons for not doing so and states its reasons on the record. A defendant's mere inability to pay shall not be a compelling or extraordinary reason not to order full restitution.
C. A sentencing court shall require a defendant, in cooperation with the probation or parole officer assigned to the defendant, to promptly prepare a plan of restitution, including a specific amount of restitution to each victim and a schedule of restitution payments, [If the defendant is currently unable to make any restitution but there is a reasonable possibility that the defendant may be able to do so at some time during his probation or parole period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that he will not be able to make any restitution, he shall so state and shall specify the reasons. If the defendant believes that no person suffered actual damages as a result of the defendant's criminal activities, he shall so state] if applicable. The defendant shall prepare and sign, under oath, a financial disclosure statement on a form approved by the supreme court. The financial disclosure statement shall identify all income, liabilities and assets in which the defendant holds or controls a present or future interest as of the date of the defendant's arrest, or if the defendant was not arrested, then as of the date of the offense. A prepared and signed financial disclosure statement shall be provided to the defendant's probation and parole officer and the district attorney's office five days before the defendant's sentencing hearing and may be used in determining an appropriate restitution plan.
[C.] D. The defendant's plan of restitution and the recommendations of [his] the defendant's probation or parole officer shall be submitted promptly to the court. The defendant shall be afforded a hearing on the amount and plan of restitution. The court shall [promptly] enter an order approving, disapproving or modifying the plan, taking into account the factors enumerated in Subsection [D] F of this section. Compliance with the [plan] order of restitution [as approved or modified by the court] shall be a condition of [the defendant's] any probation or parole periods the defendant is required to serve. Restitution payments shall be made to the clerk of the court during any period of probation or parole, unless otherwise directed by the court. Before the end of all applicable probation or parole periods for the crime, the court [thereafter] may modify the plan at any time upon the defendant's request, the request of the district attorney's office or upon the court's own motion. If the [plan as approved or modified] order of restitution does not require full payment of actual damages to all victims or if the court determines [that the defendant is not able and will not be able to make any restitution at any time during his probation or parole period or] that no person suffered actual damages as a result of the defendant's criminal activities, the court shall file a specific written statement of its reasons for and the facts supporting its action or determination, including any compelling or extraordinary reasons for not awarding full restitution. After the defendant has completed all probation and parole periods applicable to the crime, the order of restitution shall no longer be subject to modification and any remaining balance due to the victim or victims may be enforced in the same manner as a civil judgment as provided in Subsection E of this section.
[D.] E. An order requiring an offender to pay restitution, validly entered pursuant to this section, constitutes a judgment and lien against all property of a defendant for the amount the defendant is obligated to pay under the order and may be recorded in any office for the filing of liens against real or personal property, or for garnishment. [A judgment] An order of restitution may be enforced by the state, a victim entitled under the order to receive restitution, a deceased victim's estate or any other beneficiary of the [judgment] order in the same manner as a civil judgment. [An order of restitution is enforceable, if valid, pursuant to this section, the Victims of Crime Act or Article 2, Section 24 of the constitution of New Mexico. Nothing in this section shall be construed to limit the ability of a victim to pursue full civil legal remedies.] An order of restitution shall be in a form approved by the supreme court and shall satisfy the application requirements for a writ of garnishment and a writ of attachment of a defendant's property pursuant to the Rules of Civil Procedure.
[E.] F. The probation or parole officer, when assisting the defendant in preparing the plan of restitution, and the court, before [approving, disapproving or modifying the plan] entering an order of restitution, shall consider the physical and mental health and condition of the defendant; the defendant's age, education, employment circumstances, potential for employment and vocational training, family circumstances and financial condition; the number of victims; the actual damages of each victim; what plan of restitution will most effectively aid the rehabilitation of the defendant; and such other factors as shall be appropriate. The probation or parole officer shall attempt to determine the name and address of each victim and the amount of pecuniary damages of each victim.
[F.] G. The clerk of the court shall mail to each known victim a copy of the court's order [approving or modifying the plan] of restitution, including the court's statement, if any, pursuant to the provisions of Subsection [C] D of this section.
[G.] H. At any time during the probation or parole period, the defendant or the victim may request and the court shall grant a hearing on any matter related to the [plan] order of restitution.
[H.] I. If it appears that the restitution ordered by the court will not be paid in full prior to the defendant's scheduled release from probation or parole, the defendant shall prepare and sign, under oath, an updated financial disclosure statement sixty days prior to release from probation or parole and provide it to the defendant's probation and parole officer and the district attorney's office. The updated statement shall identify all income, liabilities and assets in which the defendant holds or controls or has held or controlled a present or future interest during the defendant's period of probation or parole. Failure of the defendant to comply with this subsection or Subsection [B] C of this section or to comply with the [plan] order of restitution [as approved or modified by the court] may constitute a violation of the conditions of probation or parole. [Without limitation, the court may modify the plan of restitution or extend the period of time for restitution, but not beyond the maximum probation or parole period specified in Section 31-21-10 NMSA 1978.]
J. If the restitution ordered by the court has not been paid in full after completion of all applicable probation or parole periods for the crime, the district attorney's office may enforce the order of restitution and recover any remaining amounts due to the victim or victims under the order by filing liens against the defendant's property, garnishment of wages or other remedies available at law or equity.
[I.] K. This section and proceedings pursuant to this section shall not limit or impair the rights of victims to recover damages from the defendant in a civil action or otherwise pursue full civil legal remedies.
[J.] L. The rightful owner of any stolen property is the individual from whom the property was stolen. When recovering [his] the rightful owner's property, the rightful owner of the stolen property shall not be civilly liable to any subsequent holder, possessor or retainer of the property for the purchase or sale price of the property or for any other costs or expenses associated with the property. Any subsequent holder, possessor or retainer of returned stolen property shall return the property to the rightful owner. The subsequent holder, possessor or retainer shall have a cause of action against the person from whom [he] the subsequent holder, possessor or retainer obtained the property for actual damages."
SECTION 2. Section 36-1-18 NMSA 1978 (being Laws 1909, Chapter 22, Section 2, as amended) is amended to read:
"36-1-18. DUTIES OF DISTRICT ATTORNEY.--
A. Each district attorney shall:
(1) prosecute and defend for the state in all courts of record of the counties of [his] the district attorney's district all cases, criminal and civil, in which the state or any county in [his] the district may be a party or may be interested;
(2) represent the county before the board of county commissioners of any county in [his] the district attorney's district in all matters before the board whenever requested to do so by the board, and [he] the district attorney may appear before the board when sitting as a board of equalization without request;
(3) advise all county and state officers whenever requested; and
(4) represent any county in [his] the district attorney's district in all civil cases in which the county may be concerned in the supreme court or court of appeals, but not in suits brought in the name of the state.
B. A district attorney may enforce orders of restitution and recover any amounts due to the victim or victims pursuant to those orders by filing liens against the defendant's property, garnishment of wages or other remedies available at law or equity.
[B.] C. A district attorney may contract with an Indian nation, tribe or pueblo within the boundaries of the district attorney's judicial district for the purpose of authorizing the district attorney or [his] the district attorney's staff to:
(1) serve as a tribal prosecutor; or
(2) prosecute alleged violations of tribal codes by tribal members in tribal courts."
SECTION 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2012.
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