N.M. Stat. » N.M. Stat. / Chapter 31 / Article 20
New Mexico Statutes

N.M. Stat. § 31-20-13 (2026)

Conditional discharge order; exception.

✓ current as of May 2026
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A. When a person who has not been previously convicted of a felony offense is
found guilty of a crime for which a deferred or suspended sentence is authorized, the
court may, without entering an adjudication of guilt, enter a conditional discharge order
and place the person on probation on terms and conditions authorized by Sections 31-
20-5 and 31-20-6 NMSA 1978. A conditional discharge order may only be made
available once with respect to any person.

   B. If the person violates any of the conditions of probation, the court may enter an
adjudication of guilt and proceed as otherwise provided by law.

    C. The court shall not enter a conditional discharge order for a person found guilty
of driving a motor vehicle while under the influence of intoxicating liquor or drugs,
pursuant to the provisions of Section 66-8-102 NMSA 1978.

History: Laws 1993, ch. 283, § 2 enacted as 31-20-7 NMSA 1978 and recompiled as
31-20-13 NMSA 1978; 1994, ch. 15, § 1.
                                     ANNOTATIONS

The 1994 amendment, effective February 25, 1994, added "exception" at the end of
the section heading, added the second sentence in Subsection A and added Subsection
C.

Compiler's notes. — Laws 1993, ch. 283, § 2 enacted this section as a new 31-20-7
NMSA 1978. However, this section has been compiled as 31-20-13 NMSA 1978 in
order to avoid confusion with repealed section 31-20-7 NMSA 1978 which has been
construed or cited in a number of New Mexico decisions.

A conditional discharge is not a conviction. — Where the district court had entered a
conditional discharge order in a prior criminal proceeding against defendant; the order
was entered without an adjudication of guilt and with a sentencing term; defendant’s
probation was subsequently revoked and defendant was placed back on probation; a
year later, defendant’s probation was again revoked and the district court ordered that
defendant be incarcerated; and the district court did not revoke defendant’s conditional
discharge, the district court did not err by dismissing a later felon in possession charge
against defendant on the ground that defendant’s conditional discharge had not been
revoked and could not serve as the predicate felony for the felon in possession charge.
State v. Harris, 2013-NMCA-031, 297 P.3d 374.

A conditional discharge constitutes a “prior sentence” for federal sentencing
purposes. — Where defendant pled guilty to possession with intent to distribute
controlled substances in federal court, defendant’s conditional discharge in a prior state
criminal proceeding was considered a “prior sentence” rather than a prior conviction for
purposes of federal sentencing, because the New Mexico conditional discharge statute
requires a finding of guilt. United States v. Ornelas-Yanez, 77 F.Supp.3d 1083 (D.N.M.
2014)

An offender subject to a conditional discharge is still “under indictment” for
purposes of federal firearms statute. — An offender subject to a conditional
discharge in state court is still “under indictment” within the meaning of federal firearms
statute, 18 U.S.C. § 922(n), until the condition, the completion of the term of probation,
is met, because under a conditional discharge, the charges in the indictment are not
extinguished upon the guilty plea or verdict, but remain in suspension until the
defendant completes his term of probation. United States v. Saiz, 797 F.3d 853 (10th.
Cir. 2015)

Where defendant committed federal firearms offenses while still on probation in state
court pursuant to a conditional discharge where he pleaded guilty to burglary, larceny
and battery, and where the state district court judge placed defendant on probation
without an adjudication of guilt on the state crimes, the federal district court judge did
not err in adding two sentencing enhancements after finding that defendant was “under
indictment” for the state crimes as long as he was subject to the terms of conditional
discharge and, therefore, had been under indictment when he committed the federal
crimes. United States v. Saiz, 797 F.3d 853 (10th. Cir. 2015)

The conditional discharge statute does not grant the authority to expunge
criminal records. State v. C. L., 2010-NMCA-050, 148 N.M. 837, 242 P.3d 404.

Failure to show exceptional circumstances to expunge criminal records. — Where
defendant was charged as an accessory to negligent child abuse; defendant pleaded
guilty to child abuse resulting in great bodily harm; defendant was granted a conditional
discharge and was released early due to defendant's satisfactory compliance with the
terms of release; defendant was denied employment opportunities as a result of
defendant's criminal record; defendant had been industrious and continued defendant's
education; and defendant had no prior criminal record, assuming that the district court
has inherent authority to order the expungement of criminal records, defendant failed to
demonstrate the existence of exceptional circumstances necessary to exercise that
authority. State v. C. L., 2010-NMCA-050, 148 N.M. 837, 242 P.3d 404.

Legislative intent. — The legislature's intent is that a defendant receive credit for time
served on supervised probation under the terms of a conditional discharge. State v.
Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.

This section provides an exception for certain first-time felons whose convictions
meet requirements in addition to the eligibility requirements for a deferred or suspended
sentence. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.

Subsection A of this section expressly incorporates probation statutes that apply
to a person serving a deferred sentence. State v. Leslie, 2004-NMCA-106, 136 N.M.
244, 96 P.3d 805.

Person who is eligible to receive conditional discharge is by definition one who is
entitled to a deferred sentence. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d
805.

Deferred sentence modified to conditional discharge. — Modification from a
deferred sentence to a conditional discharge was an authorized sentence reduction
under this section and Rule 5-801 NMRA. State v. Herbstman, 1999-NMCA-014, 126
N.M. 683, 974 P.2d 177.

Sex offender registration. — A person granted a conditional discharge under this
section is not required to register as a sex offender. State v. Herbstman, 1999-NMCA-
014, 126 N.M. 683, 974 P.2d 177.

Notice requiring defendant to register as a sex offender pursuant to 29-11A-7 NMSA
1978 did not need to be placed in a conditional discharge order. State v. Herbstman,
1999-NMCA-014, 126 N.M. 683, 974 P.2d 177.
Appealability of order. — A conditional discharge order in a felony prosecution is
sufficiently final to be appealable, but a similar order in a criminal contempt prosecution
is not, at least when the order does not require any action or behavior on the part of the
contemnor other than to obey the law in the future. State v. Durant, 2000-NMCA-066,
129 N.M. 345, 7 P.3d 495.

Conditional discharge order final for purposes of appeal. — Where defendant
appealed from an order of conditional discharge following his trial for criminal trespass,
the district court’s order was final for purposes of appeal because defendant was
subject to significant collateral consequences as a result of his conditional discharge,
including claims that he would be required to disclose the fact of his conviction on
applications for employment, college, and other future pursuits. State v. Merhege, 2016-
NMCA-059, rev’d on other grounds, 2017-NMSC-016.
Notes of Decisions
Cited in 47 cases (9 in the last 5 years), 1998–2026 · leading case: State v. Harris, 2013 NMCA 31 (N.M. Ct. App. 2013).
Sort: Relevance Newest Treatment
State v. Harris, 2013 NMCA 31 (N.M. Ct. App. 2013). · cites it 12× “In June 2007, Defendant’s probation was revoked, and he was placed back on probation. In February 2008, Defendant’s probation was revoked again, but this time the district court ordered that Defendant be incarcerated for 182 days.”
State v. Herbstman, 974 P.2d 177 (N.M. Ct. App. 1998). · cites it 10× “{1} The State appeals from the trial court’s amended order of conditional discharge accepting Defendant’s guilty ple'a and placing him on probation without entering an adjudication of guilt pursuant to NMSA 1978, § 31-20-13 (1994) (conditional discharge statute).”
State v. Druktenis, 86 P.3d 1050 (N.M. Ct. App. 2004). · cites it 4× “The defendant was placed on probation following a guilty plea but without an adjudication of guilt pursuant to our conditional discharge statute, NMSA 1978, § 31-20-13 (1994). Herbstman, 1999-NMCA-014 , ¶¶ 1, 11, 126 N.”
State v. Fairbanks, 82 P.3d 954 (N.M. Ct. App. 2003). · cites it 4× “See § 30-31-28 and NMSA 1978, § 31-20-13 (1994); compare NMSA 1978, § 31-18-17(B) (2003) (amending habitual offender statute to permit use of conditional discharge taken pursuant to Section 31-20-13 as a prior conviction).”
State v. Lassiter, 2016 NMCA 078 (N.M. Ct. App. 2016). · cites it 25× “Defendant’s Conditional Discharge {5} In 2009 Defendant entered a guilty plea to a drug trafficking charge and received a conditional discharge pursuant to Section 31-20-13. Section 31-20-13(A) provides that: When a person who has not been previously convicted of a felony…”
In Re Treinen, 131 P.3d 1282 (N.M. 2006). · cites it 6× “However, the lower court reconsidered its previous sentence and instead placed Respondent on supervised probation under a conditional discharge pursuant to Section 31-20-13(A). The amended order of conditional discharge included the following recommendation by the district court…”
State v. C.L., 2010 NMCA 050 (N.M. Ct. App. 2010). · cites it 10× “Pursuant to the conditional discharge statute, NMSA 1978, Section 31-20-13 (1994), the court ordered that “upon expiration of the probationary period, the [cjourt shall discharge .”
Vives v. Verzino, 213 P.3d 823 (N.M. Ct. App. 2009). · cites it 5× “041(2)(b), resulted in adjudication being withheld, which is a similar outcome to New Mexico’s conditional discharge pursuant to NMSA 1978, Section 31-20-13 (1994) and should be treated as such.”
State v. Durant, 7 P.3d 495 (N.M. Ct. App. 2000). · cites it 4× “The district court entered a conditional discharge order pursuant to NMSA 1978, § 31-20-13 (1994). The order referred to the findings of the jury and ordered that, “without adjudication of guilt, further proceedings be deferred” and Durant be placed on probation for 18 months,…”
State v. CL, 242 P.3d 404 (N.M. Ct. App. 2010). · cites it 10× “Pursuant to the conditional discharge statute, NMSA 1978, Section 31-20-13 (1994), the court ordered that "upon expiration of the probationary period, the [c]ourt shall discharge .”
State v. Torres, 141 P.3d 1284 (N.M. Ct. App. 2006). · cites it 2× “A person convicted of a noncapital felony in this state whether within the Criminal Code [NMSA 1978, § 30-1-1] or the Controlled Substances Act [NMSA 1978, § 30-31-1] or not who has incurred one prior felony conviction that was part of a separate transaction or occurrence or…”
State v. Leslie, 2004 NMCA 106 (N.M. Ct. App. 2004). · cites it 6× “{7} As directed by Section 31-20-13, we next turn to NMSA 1978, §§ 31-20-5 (2003) and 31-20-6 (1997).”
Show all 47 citing cases →
N.M. Stat. § 31-20-13(A): 24 cases
State v. Harris, 2013 NMCA 31 (N.M. Ct. App. 2013). “In June 2007, Defendant’s probation was revoked, and he was placed back on probation. In February 2008, Defendant’s probation was revoked again, but this time the district court ordered that Defendant be incarcerated for 182 days.”
In Re Treinen, 131 P.3d 1282 (N.M. 2006). “However, the lower court reconsidered its previous sentence and instead placed Respondent on supervised probation under a conditional discharge pursuant to Section 31-20-13(A). The amended order of conditional discharge included the following recommendation by the district court…”
Vives v. Verzino, 213 P.3d 823 (N.M. Ct. App. 2009). “041(2)(b), resulted in adjudication being withheld, which is a similar outcome to New Mexico’s conditional discharge pursuant to NMSA 1978, Section 31-20-13 (1994) and should be treated as such.”
Kipnis v. Jusbasche, 2017 NMSC 6 (N.M. 2016).
State v. Johnson, 541 P.3d 141 (N.M. Ct. App. 2023).
N.M. Stat. § 31-20-13(B): 3 cases
State v. Harris, 2013 NMCA 31 (N.M. Ct. App. 2013). “In June 2007, Defendant’s probation was revoked, and he was placed back on probation. In February 2008, Defendant’s probation was revoked again, but this time the district court ordered that Defendant be incarcerated for 182 days.”
State v. Harris (N.M. Ct. App. 2012).
State v. Torres (N.M. Ct. App. 2010).
N.M. Stat. § 31-20-13(C): 2 cases
State v. Frost, 60 P.3d 492 (N.M. Ct. App. 2002).
State v. Stoesser (N.M. Ct. App. 2019).
N.M. Stat. § 31-20-13(D): 2 cases
State v. C.L., 2010 NMCA 050 (N.M. Ct. App. 2010). “Pursuant to the conditional discharge statute, NMSA 1978, Section 31-20-13 (1994), the court ordered that “upon expiration of the probationary period, the [cjourt shall discharge .”
State v. CL, 242 P.3d 404 (N.M. Ct. App. 2010). “Pursuant to the conditional discharge statute, NMSA 1978, Section 31-20-13 (1994), the court ordered that "upon expiration of the probationary period, the [c]ourt shall discharge .”
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