1. A. Any person sentenced to pay a fine or to pay fees and costs in any criminal proceeding against the person, either in addition to or without a term of imprisonment, shall be allowed to pay such fine, fees or costs in installments of such amounts, at such times and upon such conditions as the court may fix.
2. B. The defendant may also be required to serve a period of time in labor to be known as "community service" in lieu of all or part of the fine, fees or costs. The labor shall be meaningful, shall not be suspended or deferred and shall be of a type that benefits the public at large or any public, charitable or educational entity or institution, including enrollment in job training or an academic or vocational program or participation in social service or rehabilitation programs, and is consistent with Article 9, Section 14 of the constitution of New Mexico. Any person performing community service pursuant to court order shall be immune from civil liability arising out of the community service other than for gross negligence, shall not be entitled to wages or considered an employee for any purpose and shall not be entitled to workers' compensation, unemployment or any other benefits otherwise provided by law. Instead, a person who performs community service shall receive credit toward the fine, fees or costs at twice the rate of the prevailing state hourly minimum wage. Unless otherwise provided, however, the total fine, fees and costs shall be payable forthwith.
3. C. The court may at any time revise, modify, reduce or enlarge the amount of the installment or the time and conditions fixed for payment of it.
4. D. When a defendant sentenced to pay a fine in installments or ordered to pay fees or costs defaults in payment, the court, upon motion of the prosecutor or upon its own motion, may require the defendant to show cause why the defendant's default should not be treated as contumacious and may issue a summons or a warrant of arrest for the defendant's appearance. It shall be a defense that the defendant did not willfully refuse to obey the order of the court or that the defendant made a good faith effort to obtain the funds required for the payment. If the defendant's default was contumacious, the court may order the defendant committed until the fine or a specified part of it or the fees or costs are paid. A defendant who is ordered to a period of confinement under this subsection shall receive credit toward the fine, fees or costs at twenty-four times the rate of the state minimum wage for each day or portion of a day of incarceration. A defendant shall receive credit at the same rate for all pre-sentence confinement served. The maximum term of imprisonment for such contumacious nonpayment shall be specified in the order of commitment.
5. E. If it appears that a defendant's default in the payment of a fine, fees or costs is not contumacious, the court may allow the defendant additional time for payment, reduce the amount of the fine or of each installment, revoke the fine or the unpaid portion in whole or in part or require the defendant to perform community service in lieu of the fine, fees or costs.

History: 1953 Comp., § 41-21-8, enacted by Laws 1971, ch. 236, § 1; 1991, ch. 54, § 1; 1993, ch. 155, § 1; 2023, ch. 184, § 1.

ANNOTATIONS

The 2023 amendment, effective June 16, 2023, provided that any person sentenced to pay a fine or to pay fees and costs in any criminal proceeding shall be allowed to pay such fine, fees or costs in installments, provided additional ways of fulfilling "community service" to pay fines, fees or costs; increased the amount of credit that community service counts toward fines, fees or costs, provided that any period of confinement for failure to pay fines, fees or costs shall be credited at a rate of twenty-four times the rate of the state minimum wage, and provided that a defendant shall receive credit at the same rate for all pre-sentence confinement served; in Subsection A, after "a term of imprisonment", deleted "may in the discretion of the court" and added "shall"; redesignated former Subsections B through D as Subsections C through E, respectively; in Subsection B, after "part of the fine", deleted "If unable to pay the fees or costs, he may be granted permission to perform community service in lieu of them as well" and added "fees or costs", after "entity or institution", added "including enrollment in job training or an academic or vocational program or participation in social service or rehabilitation programs", after "credit toward the fine, fees or costs at", added "twice", and after "prevailing", deleted "federal" and added "state"; and in Subsection D, added "A defendant who is ordered to a period of confinement under this subsection shall receive credit toward the fine, fees or costs at twenty-four times the rate of the state minimum wage for each day or portion of a day of incarceration. A defendant shall receive credit at the same rate for all pre-sentence confinement served.".

The 1993 amendment, effective July 1, 1993, substituted "shall be meaningful, shall not be suspended or deferred and shall" for "must" and changed the style of the constitutional reference in the fourth sentence of Subsection A.

The 1991 amendment, effective June 14, 1991, rewrote this section to the extent that a detailed comparison would be impracticable.

Substantive limits on revocation of probation when unable to pay fine. — This section must be read together with the ruling of the United States supreme court in Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), which recognized substantive limits on the automatic revocation of probation where an indigent defendant is unable to pay a fine or restitution. Those substantive limits require that: (1) There must be an inquiry into the reasons for the failure to pay; (2) if the reasons for defendant's failure to pay are either not willful or indicate an inability to pay, the court must consider alternatives to incarceration; and (3) only if alternative measures do not meet the state's interests, then the court may order confinement. State v. Parsons, 1986-NMCA-027, 104 N.M. 123, 717 P.2d 99.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 944 et seq.

Indigency of offender as affecting validity of imprisonment as alternative to payment of fine, 31 A.L.R.3d 926.

Recovery under state law of attorney's fees by law pro se litigant, 14 A.L.R.5th 947.

36A C.J.S. Fines § 6.