N.M. Stat. » Chapter 31 — Criminal Procedure
New Mexico Statutes

N.M. Stat. § 31-21-9 (2026)

Presentence and prerelease investigations

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A. Upon the order of any district or magistrate court, the director shall prepare a presentence report which shall include such information as the court may request.

B. Upon the order of any district court the director shall prepare a prerelease report which the court shall use to determine the accused's qualifications for bail. The report shall include available information about the accused's family ties, employment, financial resources, character, physical and mental condition, the length of his residence in the community, his record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings and any history of drug or alcohol abuse.

C. All local and state law enforcement agencies shall furnish to the director any requested criminal records.

History: 1953 Comp., § 41-17-23, enacted by Laws 1972, ch. 71, § 17.

ANNOTATIONS

Repeals and reenactments. — Laws 1972, ch. 71, § 17, repealed 41-17-23, 1953 Comp., relating to presentence investigation, and enacted the above section.

Compiler's notes. — Laws 1972, ch. 71, § 19, provided that this act shall not be construed to repeal the provisions of 66-8-131 to 66-8-133 NMSA 1978, relating to the issuance of uniform traffic citations.

Obtaining of presentence report is not matter of right; the report is discretionary with the court. State v. Follis, 1970-NMCA-083, 81 N.M. 690, 472 P.2d 655.

Judge's request for presentence report discretionary. — The trial judge has discretion to impose sentence immediately after conviction or request a presentence report, and where the jury had returned its verdict, it could not be said that immediate sentencing deprived defendant of a fair trial. State v. Mireles, 1972-NMCA-105, 84 N.M. 146, 500 P.2d 431.

Absence of presentence report provides no basis for relief. State v. Follis, 1970- NMCA-083, 81 N.M. 690, 472 P.2d 655. "Statement" before court for purpose of altering sentence under Section 31-18- 15.1 NMSA 1978 is presentence report. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

No statutory limitations upon contents. — There are no statutory limitations upon the contents of the presentence report. State v. Montoya, 1978-NMCA-009, 91 N.M. 425, 575 P.2d 609, cert. denied, 91 N.M. 491, 576 P.2d 297.

Inclusion of arrest record in presentence report does not violate due process. State v. Montoya, 1978-NMCA-009, 91 N.M. 425, 575 P.2d 609, cert. denied, 91 N.M. 491, 576 P.2d 297.

Time spent in boys' school may also be considered. — The parole board entirely within its own discretion may consider the time spent at the New Mexico boys' school towards eligibility for consideration for parole. 1958 Op. Att'y Gen. No. 58-109.

Law reviews. — For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).

For comment, "A Comment on State v. Montoya and the use of Arrest Records in Sentencing," see 9 N.M.L. Rev. 443 (1979).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 807.

Right of defendant to inspect report of presentence investigation of witness previously convicted of crime, under Rule 32(c) of Federal Rules of Criminal Procedure, 38 A.L.R. Fed. 786.

24 C.J.S. Criminal Law §§ 1480, 1492, 1493, 1496.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1982–2023 · leading case: Ira v. Janecka, 419 P.3d 161 (N.M. 2018).
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Ira v. Janecka, 419 P.3d 161 (N.M. 2018). · cites it 2× “(2)(2009) requires the parole board to consider all pertinent information concerning the inmate, including: (a) the circumstances of the offense; (b) mitigating and aggravating circumstances; (c) whether a deadly weapon was used in the commission of the offense; (d) whether the…”
State v. Begay, 2016-NMCA-039, 9 N.M. 611. · cites it 2× “We are not convinced that this 1972 amendment shows that the Legislature also meant to allow the tolling provision to apply to magistrate court convictions, because the Legislature did not require the magistrate court to order probation until 1984.”
State v. Wilson, 641 P.2d 1081 (N.M. Ct. App. 1982). “See § 31-21-9, N.M.S.A. 1978 (1981 Repl.); R.”
State v. Hyatt (N.M. Ct. App. 2020). · cites it 2× “See NMSA 1978, § 31-21-9 (1972); see also State v.”
State v. Maldonado, No. A-1-CA-39810 (N.M. Ct. App. Mar. 27, 2023). · cites it 2× “” NMSA 1978, § 31-21-9(A) (1972). In general, a defendant does not have a right to a presentence report and the absence of such a report provides “no basis for relief.”
Mitchell v. Cnty. of Los Alamos, 813 P.2d 1013 (N.M. 1991). · cites it 4× “NMSA 1990, § 31-21-9. However, an indigent defendant’s right to appeal cannot be conditioned on obtaining such an evaluation.”
N.M. Stat. § 31-21-9(A): 3 cases
State v. Begay, 2016-NMCA-039, 9 N.M. 611. “We are not convinced that this 1972 amendment shows that the Legislature also meant to allow the tolling provision to apply to magistrate court convictions, because the Legislature did not require the magistrate court to order probation until 1984.”
State v. Maldonado, No. A-1-CA-39810 (N.M. Ct. App. Mar. 27, 2023). “” NMSA 1978, § 31-21-9(A) (1972). In general, a defendant does not have a right to a presentence report and the absence of such a report provides “no basis for relief.”
Mitchell v. Cnty. of Los Alamos, 813 P.2d 1013 (N.M. 1991). “NMSA 1990, § 31-21-9. However, an indigent defendant’s right to appeal cannot be conditioned on obtaining such an evaluation.”
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