State v. Ellis, A-1-CA-35943

Defendant was released on probation, failed to report, and absconded to Nevada for ~7 months before arrest on separate Nevada charges.
While incarcerated in Nevada on those charges, Defendant completed that sentence and was returned to New Mexico; the district court revoked his probation and denied credit for time served during the absconsion period.
The primary legal question concerns credit for time served on probation and whether Defendant was a "fugitive" during the seven-month absence.
The State introduced no evidence in the record that it attempted to serve a warrant, entered a warrant in NCIC, or that attempts to serve would have been futile during the seven months Defendant was at large.
The appellate court found no basis to award credit for the period Defendant was actually incarcerated in Nevada, but concluded the record was insufficient to determine fugitive status for the full seven-month period.
The court vacated the sentence and remanded so the State may prove fugitive status (e.g., warrant issuance/NCIC entry or futility/ reasonable efforts to serve) or else Defendant must receive credit for the probation period at issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Defendant is entitled to credit for time served on probation during the ~7 months he was absent in Nevada	State contends remand unnecessary and emphasizes Defendant admitted absconding; agrees no credit for time spent incarcerated in Nevada	State made no showing it attempted to serve a warrant or entered it in NCIC; thus Defendant entitled to credit unless shown to be a fugitive	Court vacated sentence and remanded: State must prove fugitive status (warrant/NCIC or futile/ reasonable efforts) or Defendant gets credit
Whether Defendant is entitled to credit for the period he was physically incarcerated in Nevada on separate charges	State agrees credit not owed for time incarcerated in Nevada	Defendant sought additional credit for that incarceration period	Court held no credit for periods when Defendant could not be taken into custody on the New Mexico warrant because he was held in another jurisdiction (per McDonald)

State v. Jimenez, 90 P.3d 461 (N.M. 2004) (all time on probation is credited unless defendant is a fugitive; state must show warrant/NCIC entry or futility)
State v. Neal, 167 P.3d 935 (N.M. Ct. App. 2007) (state ordinarily must show warrant issuance and NCIC entry to support fugitive finding)
State v. McDonald, 825 P.2d 238 (N.M. Ct. App. 1991) (no credit for periods when defendant was incarcerated in another jurisdiction and could not be taken into custody under the warrant)
State v. Hinojos, 327 P.3d 1120 (N.M. Ct. App. 2014) (contrasting situation where defendant was voluntarily surrendered and continuously in custody, not an absconder)