N.M. R. Crim. P. Dist. Ct. 5-703
N.M. R. Crim. P. Dist. Ct. 5-703
Committee commentary. - This rule is designed to regularize the sentencing process so that the basis of the judge's decision is made known and challenged at the time of sentencing if necessary. The principle expressed in this rule is consistent with the American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Part IV (Approved Draft 1968), the Model Sentencing Act, Article II (Nat. Council on Crime and Delinquency, 2d Ed. 1972) and Rule 32(c) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 271, 324-25 (1974).
This rule provides that counsel may advise the court of any plea negotiations and that the report may be requested at that time so as to be available for use during negotiations and at the plea hearing under Rule 5-303 NMRA.
ANNOTATIONS The 2006 amendment, effective March 31, 2006, amended Paragraph B to change the date for inspection of the predisposition order from two working days to 10 working days and to provide for agreement of the parties for shorter notice.
For computation of time, see Rule 5-104 NMRA. For statutory procedure probation revocations, see Section 31-21-15 NMSA 1978. Probation report not required. - Trial judge has authority to impose sentence immediately after trial, absent an abuse of discretion in so doing, since ordering a presentence report is not mandatory. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Record of arrests. - Defendant is not deprived of due process if sentencing judge considers accurate arrest information relevant to the question of punishment. State v. Montoya, 1978-NMCA-009, 91 N.M. 425, 575 P.2d 609, cert. denied, 91 N.M. 491, 576 P.2d 297. Defendant's due process rights not violated by having probation officer collect data and prepare presentence report. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22. Presentence report. - Trial court may withhold portions of probation department presentence report which contain its specific recommendations. State v. Haar, 1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350, cert. denied, 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606 (1980). Trial judge has authority to impose sentence immediately after trial, absent an abuse of discretion in so doing, since ordering a presentence report is not mandatory. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Defendant is not deprived of due process if sentencing judge considers accurate arrest information relevant to the question of punishment. State v. Montoya, 1978-NMCA-009, 91 N.M. 425, 575 P.2d 609, cert. denied, 91 N.M. 491, 576 P.2d 297. A defendant's record of arrests, without convictions, may be highly relevant in determining the type and extent of punishment. Defendant is given the opportunity to be heard on the accuracy of the arrest record. State v. Montoya, 1978-NMCA-009, 91 N.M. 425, 575 P.2d 609, cert. denied, 91 N.M. 491, 576 P.2d 297. Defendant's due process rights not violated by having probation officer collect data and prepare presentence report. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22. Trial court may withhold portions of probation department presentence report which contain its specific recommendations. State v. Haar, 1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350, cert. denied, 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606 (1980). Plan of restitution. - Where no plan of restitution was ever prepared by the defendant in cooperation with the probation or parole department as required by 31-17-1 NMSA 1978, the failure to comply with this requirement was not error where data was supplied by the defendant and supported the court's determination of the defendant's ability to pay restitution and where the presentence report gave the defendant prior notice concerning the amounts of restitution and he was accorded an opportunity to contest the amounts ordered by the court. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22. Law reviews. - For comment, "A Comment on State v. Montoya and the Use of Arrest Records in Sentencing," see 9 N.M.L. Rev. 443 (1979). For annual survey of New Mexico law relating to constitutional law, see 12 N.M.L. Rev. 191 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069. Right of convicted defendant or prosecution to receive updated presentence report at sentencing proceedings, 22 A.L.R.5th 660. Obtaining a presentence report is not a matter of right. State v. Vialpando, 93 N.M. 289, 599 P.2d 1086 (Ct. App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979).