A. Persons sentenced to imprisonment for a term of one year or more shall be imprisoned in a corrections facility designated by the corrections department, unless a new trial is granted or a portion of the sentence is suspended so as to provide for imprisonment for not more than eighteen months; then the imprisonment may be in such place of incarceration, other than a corrections facility under the jurisdiction of the corrections department, as the sentencing judge, in his discretion, may prescribe; provided that a sentence of imprisonment for one year or more but not more than eighteen months shall be subject to the provisions of Subsections D and E of this section and shall not be imposed unless the requirements set forth in Subsection D of this section are satisfied.

B. All commitments, judgments and orders of the courts of this state for the imprisonment or release of persons in the penitentiary shall run to the corrections department, but nothing contained in this section shall invalidate or impair the validity of any commitment, judgment or order of any court in this state directed to the secretary of corrections, the warden of the penitentiary of New Mexico or to the penitentiary of New Mexico, and all such commitments, judgments and orders shall be treated and construed as running to the corrections department.

C. There is created within the corrections department an "intake and classification center". The intake and classification center shall have the following duties:

(1) process all inmates sentenced or committed for purposes of diagnosis to the corrections department;

(2) classify inmates for housing assignments;

(3) develop an individualized plan for participation by each inmate in programs, work assignments and special needs;

(4) monitor each inmate's progress during incarceration and reclassify or modify classification assignments as may be necessary, taking into consideration the overall needs of the inmate population, institutional and facility requirements and the individual inmate's needs;

(5) with the approval of the secretary of corrections, may transfer inmates of the penitentiary to an institution under the control of another state if that state has entered into a corrections control agreement with New Mexico; and

(6) with the approval of the secretary of corrections, may transfer inmates to any facility, including the forensic hospital under the jurisdiction of the department of health.

D. A sentence of one year or more but not more than eighteen months and providing for imprisonment in a place of incarceration other than a corrections facility under the jurisdiction of the corrections department pursuant to Subsection A of this section, which shall be known as the local sentencing option, shall not be imposed unless:

(1) the place of incarceration is located within the county in which the crime was committed; and

(2) the governing authority in charge of the place of incarceration has entered into a joint powers agreement with the corrections department setting forth:

(a) the amount of money the corrections department shall pay for offenders sentenced to a term of one year or more but not more than eighteen months and the number of offenders which may be sentenced to such terms; and

(b) any other provisions deemed appropriate and agreed to by the local governing body and the corrections department.

E. If a judge imposes a sentence of one year or more but not more than eighteen months and provides for imprisonment in a place of incarceration other than a corrections facility under the jurisdiction of the corrections department:

(1) the local governing body or its agent shall have the ability to petition that judge when the capacity of the place of incarceration is filled or when any problem develops concerning that offender requesting the judge to issue an order committing the offender to the corrections department for completion of the remainder of his sentence. A hearing on a petition pursuant to this paragraph shall be held within three days of the filing of the petition. Notwithstanding any other provision of law, the judge shall retain jurisdiction over the offender for the purpose of implementing the local sentencing option; and

(2) the local governing body or its agent shall keep the district judges for the judicial district in which the place of incarceration is located informed as to the capacity for the sentencing of offenders in accordance with the local sentencing option. No judge shall sentence an offender in accordance with the local sentencing option if that sentence will result in exceeding the number of offenders set forth in the joint powers agreement.

F. The corrections department shall file an annual report with the legislature which shall contain the number of joint powers agreements in operation pursuant to this section, copies of those agreements, the number of offenders currently incarcerated pursuant to those agreements and any other relevant information relating to the implementation of this section.

G. The corrections department may enter into contracts with public or private detention facilities for the purpose of housing inmates lawfully committed to the corrections department. Any facility with which the department contracts shall meet or exceed corrections department standards prior to the housing of any inmates within the facility and shall meet certification requirements for prisons within eighteen months of entering into such contracts. The contractor shall adhere to all appropriate corrections department policies and procedures and shall agree to have staff trained at the corrections department training academy.

History: 1953 Comp., § 40A-29-13, enacted by Laws 1963, ch. 303, § 29-13; 1972, ch. 71, § 3; 1973, ch. 383, § 1; and recompiled as 1953 Comp., § 40A-29-37, by Laws 1977, ch. 216, § 16; 1978, ch. 106, § 1; 1981, ch. 9, § 1; 1987, ch. 51, § 1; 1993, ch. 81, § 1.

Cross references. — For Interstate Corrections Compact, see 31-5-17 and 31-5-18 NMSA 1978.

For contracts with the United States attorney general for the housing of convicted offenders, see 31-5-19 NMSA 1978.

For judgment of imprisonment for more than one year to be in corrections facility, see 33-2-19 NMSA 1978.

For determination of sentence upon several commitments, see 33-2-39 NMSA 1978.

The 1993 amendment, effective July 1, 1993, substituted "contained in this section" for "herein contained" and "secretary of corrections" for "superintendent" in Subsection B; substituted "department of health" for "health and environment department" in Subsection C(6); substituted "this section" for "this act" in two places in Subsection F; and added Subsection G.

Liability for cost of incarceration in county jail. — The department of corrections is responsible for the costs of housing parole violators who are incarcerated in a county jail at the request of the department of corrections. State ex rel., San Miguel Bd of Cnty. Comm'rs v. Williams, 2007-NMCA-036, 141 N. M. 356, 155 P.3d 761, cert. denied, 2007-NMCERT-003, 141 N.M. 401, 156 P.3d 39.

The provisions of Subsection D are mandatory, not discretionary. State v. Ruiz, 1989-NMCA-109, 109 N.M. 437, 786 P.2d 51, cert. denied, 109 N.M. 419, 785 P.2d 1038 (1990).

Once the defendant's plea is accepted and judgment entered, court has four options: (1) it can sentence the defendant and execute the sentence, committing him to prison; (2) it can commit the defendant for a 60-day diagnostic term; (3) it can sentence the defendant and suspend the execution of the sentence; or (4) it can enter an order deferring the imposition of the sentence. State v. Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878.

Rights not created. — Provisions relating to mechanisms by which corrections officials can arrange to transfer inmates needing psychiatric care to an appropriate facility were not meant to create rights enforceable by inmates against state officials; thus, this section did not create a liberty interest subject to due process protections. Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996).

Order committing defendant to state hospital for indeterminate period not valid sentence. — An order directing that the defendant be transported to the state hospital for an indeterminate period and then be returned to the district court for sentencing is not a valid sentence permitted by law, nor does it constitute a final judgment and sentence for purposes of an appeal. State v. Garcia, 1983-NMCA-017, 99 N.M. 466, 659 P.2d 918.

Effect of commitment flaws on judgment. — Valid judgment is not to be nullified by the flaws in the commitment. Shankle v. Woodruff, 1958-NMSC-054, 64 N.M. 88, 324 P.2d 1017.

Effect of misnomer. — Prisoners were not denied habeas corpus where they were sentenced to the "New Mexico penitentiary" instead of "to the penitentiary of New Mexico" because the misnomer, if one existed, was a clerical error which did not affect any substantial right of the appellants. Carter v. New Mexico, 358 F.2d 710 (10th Cir.), cert. denied, 385 U.S. 873, 87 S. Ct. 146, 17 L. Ed. 2d 100 (1966).

Effect of section where one-year maximum sentence. — Where defendant has a valid maximum sentence of not more than one year, under Section 33-2-19 NMSA 1978 or this section, the proper place of his confinement is the state penitentiary. State v. Sawyers, 1968-NMCA-051, 79 N.M. 557, 445 P.2d 978.

Calculation of sentence. — Under Section 33-2-19 NMSA 1978, defendant's sentence to one year would be calculated as a sentence of less than one year after crediting his pre-sentence time served; thus, the law did not require the court to sentence him to prison, and his sentence to jail was legal. State v. Brown, 1999-NMSC-004, 126 N.M. 642, 974 P.2d 136.

Transfer from New Mexico to Texas. — Because a transfer of prisoners from New Mexico to Texas does not affect the duration of a sentence, a transfer must impose an atypical or a significant hardship before it can be held to create a liberty interest under state law. Jordan v. Bowles, No. 96-2169, 124 F.3d 217 (Table) (unpublished) (10th Cir. 1997).

Confinement in county jail held improper. — District court lacked authority to order defendant confined in the county jail, where defendant's "sentence" was the one-year term imposed by the judgment of the district court, not the 363 days remaining to be served on that sentence after imposition of the sentence. State v. Ruiz, 1989-NMCA-109, 109 N.M. 437, 786 P.2d 51, cert. denied, 109 N.M. 419, 785 P.2d 1038 (1990).

Contracting with counties for housing of inmates. — Corrections department cannot contract with counties for the housing of inmates committed to the department. 1987 Op. Att'y Gen. No. 87-53.

Law reviews. — For annual survey of New Mexico criminal procedure, see 16 N.M.L. Rev. 25 (1986).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 24 et seq., 825; 32 Am. Jur. 2d False Imprisonment § 16; 60 Am. Jur. 2d Penal and Correctional Institutions, § 13; 75B Am. Jur. 2d Trial § 1828.

When, under terms of Federal Youth Corrections Act (18 USCS §§ 5005 et seq.), must prisoner serving youth corrections sentence be segregated from adult prison population, 59 A.L.R. Fed. 746.

24 C.J.S. Criminal Law §§ 1589, 1590.