Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

2.3-2 Sentencing

A. Pre-Sentencing Report
In the Metropolitan Court, the judge may order a pre-sentence report prior to imposing any sentence. Section 31-21-9. All pre-sentence reports in misdemeanor and petty misdemeanor cases are prepared by the Probation Division of the Metropolitan Court. There are no statutory limitations on the contents of the report. The report may contain detailed information concerning the defendant's life, characteristics, and patterns of conduct. Inclusion of accurate information regarding prior arrests that did not result in convictions does not violate the due process rights of the defendant. State v. Montoya, 91 N.M. 425, 575 P.2d 609 (Ct. App. 1978).

B. Sentencing Options

1. The determination of the sentence is at the discretion of the judge but must be within prescribed minimum and maximum sentences provided by law. State v. Pina, 90 N.M. 181 (Ct. App. 1977). The statutory limits for punishment are contained in:

   a. The statute designating the offense and the penalty. Or

   b. The general punishment provisions applicable to a specific class of misdemeanors, if no other penalty is specifically provided. Section 31-19-1; see also §2.2-1(A) of this Benchbook regarding general penalties for misdemeanors and petty misdemeanors.

2. In addition to exercising discretion in imposing sentences within statutory limits, the judge may impose a sentence, defer sentencing, suspend an imposed sentence, or commit the offender to the corrections department for diagnosis. Section 31-20-3.
3. In a suspended sentence:

   a. The sentence is imposed but the execution of the sentence is suspended in whole or part. Sections 31-19-1(C) and 31-20-3(B); see also §2.1-7 of this Benchbook regarding sentencing options.

   b. If the probationary period is satisfactorily completed, without revocation, the defendant is discharged from further obligations, but the conviction on the charge remains. Section 31-20-9.

   c. If after a hearing, the court finds that the probationer violated probation, the judge may continue the original probation, revoke the probation and either order a new probation (with any permissible conditions), require the probationer to serve the balance of the sentence imposed after being credited with time served on probation, or require the probationer to serve any lesser sentence. Section 31-21-15. The court does not need to give credit for time spent on probation from the date of the probation violation to the date of arrest if the court finds that a warrant to arrest the defendant for violating his probation could not be served. Section 31-21-15(C).

4. In a deferred sentence:

   a. There is no sentence, but the judge reserves the power to sentence at a later time. Section 31-20-3.

   b. If the defendant is placed on supervised or unsupervised probation for all or some portion of the deferral period and if the probationary period is satisfactorily completed, the charges are dismissed. Section 30-20-9; Criminal Form 9-603A (Final Order on Criminal Complaint (Deferred Sentence)).

   c. If the probationary period is not satisfactorily completed, the judge must sentence the defendant for the first time, with credit for time spent on probation. Section 31-21-15. (Note, however, that under the Motor Vehicle Code, even if the sentence is deferred and the defendant successfully completes probation he or she is still considered a subsequent offender. Section 66-1-4.16(Q).)

5. Summary of Differences between Suspended and Deferred Sentences. A suspended sentence involves a sentence that has been imposed, but the execution of which has been suspended. By contrast, when a judge defers a sentence, the judge does not impose a sentence, but reserves the right to do so if an offender violates a condition or conditions of the deferral. See State v. Kenneman, 98 N.M. 794 (Ct. App. 1982). The difference between a suspended and a deferred sentence is notable when the probationer violates the conditions of probation. When a probationer under a suspended sentence violates conditions, the judge, having already imposed a sentence, may not alter that sentence upward, but may enforce the existing sentence (by, for example, revoking probation). When a sentence is deferred and the probationer violates, the judge may impose any lawful sentence that could have been imposed at the time of conviction. State v. Kenneman, 98 N.M. 794 (Ct. App. 1982). Note, however, that in either case, the court must credit the offender with time already served on probation. Magis. Ct. R. 6-802(C); Metro. Ct. R. 7-802(C).
6. Suspending or deferring a sentence (and imposing probation) is an act of clemency, not a right of the defendant. State v. Baca, 90 N.M. 280 (Ct. App. 1977). Probation, generally, should relate to the education and rehabilitation of the defendant with regard to the best interests of both the public and the offender. State v. Baca, 90 N.M. 280 (Ct. App. 1977).
7. If the sentence is not deferred, the sentencing options available for each count charged are as follows:

   a. imposition of jail sentence;

   b. imposition of both jail sentence and fine;

   c. suspension of jail sentence and imposition of fine;

   d. imposition of jail sentence and suspension of fine;

   e. suspension of both jail sentence and fine. See Criminal Forms 9-601 (Judgment and Sentence (Commitment or Probation)) and 9-602 (Judgment and Sentence).

8. The judge can suspend all or a portion of a jail sentence or fine; for example, the defendant may be sentenced to 60 days in jail with all but ten days suspended.
9. When a sentence is deferred, the judge neither imposes a jail term nor a fine, but costs are adjudged against the defendant because they must be collected upon conviction. Sections 35-6-1 & -4(B). However, the docket fee shall not be charged against a defendant who pleads guilty to a penalty assessment misdemeanor. Section 35-6-4.
10. Upon conviction of one count, the court may impose a sentence of both a fine and jail. The court cannot, however, impose part of a sentence (e.g. the fine) and defer another part of the sentence (e.g. the jail term) for the same crime. State v. Aragon, 93 N.M. 132 (Ct. App. 1979). In other words, the court may:

    a. impose a jail sentence and impose a fine;

    b. impose a jail sentence and impose no fine;

    c. impose no jail sentence and impose a fine; or

    d. defer the sentence.

    If the defendant is convicted on more than one count, the court may impose a fine and/or a jail sentence on one count and defer sentencing on the other counts.

11. If the defendant is convicted of more than one count or offense and is sentenced to a jail term for each, the judge may specify that the terms run concurrently (at the same time) or consecutively (one term following the other). If the judge does not specify whether the sentences are to run consecutively or concurrently, the sentences are to be served concurrently. State v. Crespin, 90 N.M. 434 (Ct. App. 1977).
12. “Good Time.” With the approval of the committing judge or the presiding judge, the county sheriff or jail administrator may grant any person imprisoned in the county jail a deduction of time from the term of a sentence for good behavior and industry. Deductions cannot exceed one-half of the original term of the sentence. If the person is serving two or more cumulative sentences, the sentences are treated as one for the purpose of deducting time for good behavior. Section 33-3-9(A). The sheriff or jail administrator must establish rules and procedures for the accrual and forfeiture of "good time." Section 33-3-9(C). Note, however, that a prisoner may not accrue good time for the mandatory portion of a sentence for DWI or Driving While License Revoked or Suspended, whether prosecuted under a state or municipal code. Section 33-3-9(B).

C. Sentencing for Hate Crimes (Sections 31-18B-1 through -5)\

1. When a petty misdemeanor or misdemeanor is motivated by hate, the basic sentence of imprisonment prescribed in §31-19-1 may include an alternative sentence that requires community service, treatment, education or any combination of these. The court may suspend or defer the entire sentence or a portion thereof or grant a conditional discharge, except as provided by law. Section 31-18B-3(D).
2. “Motivated by hate” means the defendant intended to commit the crime because of the actual or perceived race, religion, color, national origin, ancestry, age, handicapped status, gender, sexual orientation or gender identity of the victim, regardless of whether the defendant’s belief or perception was correct. Section 31-18B-2.

D. Terms and Conditions of a Deferred or Suspended Sentence: Probation

1. By imposing terms and conditions on a deferred or suspended sentence, the judge places the defendant on probation. Sections 31-19-1(C) and 30-20-5; see also State v. Leslie, 2004-NMCA-106, ¶7, 136 N.M. 244 (explaining that §30-20-5 requires the court to place the defendant on probation). The court must attach to its order deferring or suspending a sentence those conditions necessary to ensure that the defendant will comply with the law during the period of suspension or deferral. Section 30-20-6; see also State v. Donaldson, 100 N.M. 111 (Ct. App. 1983) (explaining that a trial court has broad discretion in imposing probation upon a convicted defendant and that the terms of probation will not be set aside unless they: (a) have no reasonable relationship to the offense for which the defendant was convicted; (b) relate to activity that is not itself criminal in nature; and (c) require or forbid conduct that is not reasonably related to deterring future criminality).
2. The judge decides whether to place the defendant on probation for some or all of the period of deferment or suspension and whether the probation is to be supervised or unsupervised.
3. Additionally, the terms and conditions of probation are at the discretion of the judge as long as they are reasonably related to the rehabilitation of the defendant. However, there are two statutorily mandated requirements that must be imposed:

   a. If the judge requires that the defendant's probation be supervised, the defendant must pay for the actual costs of the supervision services up to $1800 annually.

   i. Payments must be made in monthly installments of not less than $25 and not more than $150.

   ii. If financial circumstances warrant, the payments may be modified with approval of the court and the appropriate district supervisor of the field services division or the local supervisor of the responsible agency. Section 31-20-6.

   b. To the extent that the defendant is reasonably able to make restitution, he or she must prepare a plan of restitution to the victim(s), if any, which is subject to approval by the court. Section 31-17-1; see also State v. Gross, 98 N.M. 309 (Ct. App. 1982) (explaining that §31-17-1(B) requires courts to impose restitution as a condition of probation when a sentence is deferred or suspended). But see State v. Madril, 105 N.M. 396 (Ct. App. 1987) (restitution improper where no relationship between victim’s damages and defendant’s criminal activities and where defendant was not convicted of the crime for which restitution was ordered).

4. The following conditions may be imposed on the defendant at the discretion of the judge as part of probation:

   a. to provide support for any persons whom the defendant is legally responsible;

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

   c. to be supervised by probationary authorities;

   d. to serve a period of time in volunteer labor (community service) that benefits any public, charitable or educational entity or institution; and

   e. to satisfy any other conditions reasonably related to the defendant's rehabilitation, such as prohibiting the offender from associating with the victim(s). Section 31-20-6.

5. As a condition of probation, a judge may require that a defendant attend and complete an educational program available to first offenders or persons in need of remedial driving education, such as DWI school or Driver Improvement School. Section 66-8-102(E).
6. The judge should make certain that the terms and conditions of probation are made clear in the judgment and sentence form. If there are no terms and conditions of probation specified, the defendant cannot violate the conditions. State v. Martinez, 84 N.M. 295 (Ct. App. 1972).
7. A fine and a jail term are penalties authorized by law and may not be imposed as a condition of probation unless the statute under which the defendant was charged and sentenced grants authority to the court to impose a fine or jail term as a condition of probation. State v. Holland, 91 N.M. 386 (Ct. App. 1978); see also Criminal Form 9-605 (Agreement to Pay the Fine and Court Costs).
8. When the court has deferred or suspended the sentence, the order may be limited to one or more counts or indictments, but in the absence of express limitation the order extends to the entire judgment. Section 31-20-4.
9. The length of the probation period should be specifically entered on the judgment and sentence form. If a fixed probation period is not specified, however, the probation period is assumed to be the same as the maximum allowable sentence. Section 31-20-5(A); State v. Baca, 90 N.M. 280 (Ct. App. 1977).
10. If multiple suspended or deferred sentences are imposed consecutively, the individual probation periods for each sentence are likewise "stacked," that is, imposed one after the other for a combined total period longer than the maximum sentence for one offense. Compare State v. Crespin, 90 N.M. 434 (Ct. App. 1977). If multiple suspended or deferred sentences are to be imposed concurrently, the probation period is effective only for the duration of the longest of the probation periods imposed. If the judge does not specify in the sentence or terms of probation that the terms for each count are to run consecutively, the sentences or parallel probation periods will run concurrently. State v. Crespin, 90 N.M. 434 (Ct. App. 1977).

E. Successful Completion of or Violation and Revocation of Probation

1. If the defendant successfully completes the period of a deferred sentence without revocation, that is, he or she does not violate any terms or conditions of probation during the entire period, the judge enters an order dismissing the charges. Section 30-20-9; Criminal Form 9-603A (Final Order on Criminal Complaint (Deferred Sentence)).
2. If it is alleged that the defendant has violated the conditions of probation under a suspended or deferred sentence, the following judicial steps may be taken:

   a. The prosecution may file a motion with the judge for revocation of the suspended sentence, or the court may make its own motion.

   b. The Court may issue a summons, warrant, or bench warrant for the defendant’s arrest. Section 31-21-15(A); Magis. Ct. R. 6-802(B); Metro. Ct. R. 7-802(B); Criminal Forms 9-211 (Affidavit for Bench Warrant) and 9-212A (Bench Warrant).

   c. If a warrant for the return of an alleged probation violator cannot be served, the violator is considered a fugitive from justice. Upon arrest and subsequent hearing, the court shall determine whether to credit defendant with the time from the violation to the date of arrest as time spent on probation. Section 31-21-15(C).

   d. The court must provide the defendant notice of the conditions alleged to have been violated, notice of the alleged manner of violation, as well as an opportunity to be heard at a probation revocation hearing. State v. Montoya, 93 N.M. 84 (Ct. App. 1979).

   e. A violation of probation must be established with such reasonable certainty as to satisfy the conscience of the court. State v. Brusenhan, 78 N.M. 764 (Ct. App. 1968).

   f. If a probation violation is established in a case with a suspended sentence, the court may continue the original probation or revoke the probation and either order a new probation with any lawful condition or require the probationer to serve the balance of the sentence imposed or any lesser sentence. Section 31-21-15(B).

   g. If the judge revokes the suspended sentence, a new judgment and sentence form is prepared, with a notation that the suspended sentence on the original judgment and sentence form is revoked. Magis. Ct. R. 6-802(C); Metro. Ct. R. 7-802(C).

   h. In probation violation cases where the sentence was originally deferred, the court may impose any sentence that might originally have been imposed, but credit shall be given for time served on probation. Section 31-21-15(B); Magis. Ct. R. 6-802(C); Metro. Ct. R. 7-802(C).

   i. If the judge revokes the deferred sentence, a new judgment and sentence form is prepared, with a notation that the sentence is being imposed as a result of a violation of the conditions of probation under a deferred sentence or with new conditions of probation imposed. Magis. Ct. R. 6-802(C); Metro. Ct. R. 7-802(C). The judge, however, cannot revoke probation and impose a sentence or enter a new judgment after the period of the deferred sentence has expired. Section 30-20-9.

3. The judge may modify but not increase a sentence or fine at any time during the maximum period for which incarceration could have been imposed, unless an appeal is pending. Magis. Ct. R. 6-801; Metro. Ct. R. 7-801.
4. No sentence can be modified without prior notification to all parties and a hearing on the matter. Magis. Ct. R. 6-801; Metro. Ct. R. 7-801.