 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 HAROLD L. MORRIS, Jr.,

 8          Defendant-Appellant,

 9 v.                                                                                   NO. 30,635

10 STATE OF NEW MEXICO,

11          Plaintiff-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge

14 The Appellate Law Office of Scott M. Davidson
15 Scott M. Davidson
16 Albuquerque, NM

17 for Appellant

18 Gary K. King, Attorney General
19 Santa Fe, NM

20 for Appellee

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Defendant appeals the revocation of his probation, arguing that the State failed

24 to meet its burden of proof regarding the violation of the condition that he does not
 1 violate any criminal statute. In our notice, we proposed to affirm the revocation.

 2 Defendant has timely responded to our proposal. We have considered his arguments

 3 and not being persuaded, we affirm.

 4        In our notice, we relied on Maes v. State, 84 N.M. 251, 252, 501 P.2d 695, 696

 5 (Ct. App. 1972), for the proposition that because conviction of a subsequent offense

 6 was not a prerequisite for revocation where the state pleads clear and convincing

 7 evidence that the defendant committed the offense, there was no support for

 8 Defendant’s argument that the State’s burden of proof of violation of probation based

 9 on violating a criminal statute was “beyond a reasonable doubt.” Defendant argues

10 that Maes is not persuasive in this case because there was no record in Maes that the

11 violation of the defendant’s probation was for a violation of law. While the

12 underlying facts in Maes are not clear, what is clear is that a conviction for a

13 subsequent offense is not necessary before a probation revocation can be based on that

14 offense.

15        Defendant continues to assert that when a probation violation is based on

16 violation of law, the violation must be proven beyond a reasonable doubt. We know

17 of no authority and Defendant has cited us none in support of this proposition.

18 Moreover, we have always held that revocation of probation is not a criminal

19 proceeding; thus, the State is required only “to establish that a violation occurred with


                                               2
 1 a reasonable certainty.” State v. Phillips, 2006-NMCA-001, ¶ 17, 138 N.M. 730, 126

 2 P.3d 546 (internal quotation marks and citation omitted). We are unconvinced that,

 3 where a probation violation is based on violation of state law, the state must prove the

 4 violation beyond a reasonable doubt. We see no reason to treat the violation of that

 5 condition any differently than any other condition of probation.

 6        Defendant argues that due process requires that the burden of proof for

 7 violation of this condition be proof beyond a reasonable doubt. We fail to see why

 8 that is the case. We agree that due process protections apply in probation revocation

 9 proceedings. See State v. Sanchez, 2001-NMCA-060, ¶ 13, 130 N.M. 602, 28 P.3d

10 1143. But, those protections are satisfied by the burden of proof that we have always

11 used for these proceedings. Defendant’s arguments conflate violation of probation

12 based on allegations that he has committed a subsequent crime with actual conviction

13 of that crime. These are two separate matters, two separate proceedings, and having

14 two different burdens of proof is completely consistent with notions of due process.

15 See State v. Sanchez, 94 N.M. 521, 523, 612 P.2d 1332, 1334 (Ct. App. 1980) (stating

16 that a hearing on probation revocation “is not a trial on a criminal charge,” but rather

17 a hearing determining whether the defendant has breached the probation order). We

18 conclude that there is no due process requirement for establishing violation of a

19 particular condition of probation beyond a reasonable doubt.


                                              3
1       For the reasons stated herein and in the notice of proposed disposition, we

2 affirm.




                                         4
1      IT IS SO ORDERED.



2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 ___________________________
6 JAMES J. WECHSLER, Judge



7 ___________________________
8 LINDA M. VANZI, Judge




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