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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1804
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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A friend of mine (he is in New Mexico) has been sentenced to

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A friend of mine (he is in New Mexico) has been sentenced to 2 yrs w/2 yrs probation to which he pled no contest to aggravated assault against a household member and false imprisonment. He is not sure if he receives the good behavior or one for one credit while in prison. He was told it could be mandatory for him to serve 85% of the sentence, is that true? The public defender said he could get out in a year or less. Can you please clarify this? He has not seen any paperwork from the courts. He was jailed for a total of 51 days before being sent to prison. Thank you.
HelloCustomerand welcome back to JustAnswer.

The New Mexico statute which addresses prison behavior credits is New Mexico Revised statutes section 33-2-34, which you can see in its entirety at:

To be certain of the credits for which he might be eligible, it would be necessary to know the exact code section of the commitment offense. Note section 33-2-34, subsections A(1) and A(2), which establish the basic behavior credit rules:

33-2-34. Eligibility for earned meritorious deductions.
A. To earn meritorious deductions, a prisoner confined in a correctional facility designated by the corrections department must be an active participant in programs recommended for the prisoner by the classification supervisor and approved by the warden or the warden's designee. Meritorious deductions shall not exceed the following amounts:
(1) for a prisoner confined for committing a serious violent offense, up to a maximum of four days per month of time served;
(2) for a prisoner confined for committing a nonviolent offense, up to a maximum of thirty days per month of time served ....

Thus, if his commitment offense is characterized as a "serious, violent offense", the possible credit is 4 days per month served (in other words, he would have to do roughly 85% of the sentence).

If his commitment defense is a "nonviolent offense", the possible credit is 30 days per month served (in other words, he would do roughly one-half of his sentence).

"Serious, violent offenses" are defined in section 33-2-34, subsection L(4). For example, if his commitment offense "aggravated assault against a household member" is actually a violation of New Mexico code section 30-3-16, aggravated battery against a household member, then his commitment offense is a "serious, violent offense" and he is eligible for only four days credit for every 30 days served. This would mean that he would get credit for 34 days for every 30 days actually served. To complete a two year sentence, then, he would have to do 21 and a half months actual time.

Of course, he will have to be an "active participant" in "approved programs" to be eligible for any behavior credits. Also, there other credits available, as outlined in the rest of section 33-2-34, which your friend may be able to earn.

He will, of course, be entitled to credit against his prison sentence for the time he spent in local jail custody before being convicted and sentenced to prison.

If you can tell me what the exact commitment offense code section was, I can verify which behavior credits apply.

Customer: replied 7 years ago.
<p>Sir,</p><p> </p><p>For the Aggravated Assault Deadly Weapon Household Member Firearm Enhancement (4th Degree Felony) it states the statute is: 30-3-13(A)(1) and for the False Imprisonment (4th Degree Felony) it is: 30-4-3.</p><p> </p><p>Also, he asked if he could qualify for Recommendation for Reconsideration. He doesn't think that the probation assessment was addressed at sentencing. Is this a possibility? He doesn't necessarily want the charges dropped but was hoping probation could be an option as his sentence. </p><p> </p><p>Thank you.</p>
Hello againCustomer

A determintion of whether or not a violation of section 30-3-13(A)(1) is considered a "serious felony" within the meaning of section 33-2-34 is discretionary with the trial court. Section 33-2-34, subsection L(4)(o) says:

(o) any of the following offenses, when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section: ...

4) fourth degree aggravated assault against a household member, as provided in Section 30-3-13 NMSA 1978


Therefore, if the court makes a finding that the circumstances of the offense are sufficiently serious, he can rule that your friend's violation is a serious felony, which would mean he would be eligible only for the lesser behavior credits and would have to do more time. If there was no assessment by the court at the time of his sentencing, he should be eligible for the 30 days per month credit because the court did not "judge the crime to be a serious violent offense". Therefore, unless and/or until the department of corrections has told him otherwise, it would not seem to be a good idea to ask the court to reconsider the issue


Good luck to you and your friend as he serves out his sentence.

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