No person indicted or charged by information or complaint of any crime shall be sentenced therefor, unless he has been legally convicted of the crime in a court having competent jurisdiction of the cause and of the person. No person shall be convicted of a crime unless found guilty by the verdict of the jury, accepted and recorded by the court; or upon the defendant's confession of guilt or a plea of nolo contendere, accepted and recorded in open court; or after trial to the court without jury and the finding by the court that such defendant is guilty of the crime for which he is charged.

History: 1953 Comp., § 40A-1-11, enacted by Laws 1963, ch. 303, § 1-11.

Cross references. — For constitutional right to trial by jury, see N.M. Const., art. II, §§ 12 and 14.

For arraignment and plea procedure, see Rules 5-303 and 5-304 NMRA.

For right to jury trial, and waiver of same, see Rule 5-605 NMRA.

Conviction refers to finding of guilt and does not include imposition of sentence. State v. Garcia, 1983-NMCA-017, 99 N.M. 466, 659 P.2d 918.

To justify conviction evidence must establish every essential element of the offense charged, and whatever is essential must affirmatively appear from the record. State v. Losolla, 1972-NMCA-085, 84 N.M. 151, 500 P.2d 436.

Guilty pleas authorized. — The power of a court to accept a plea of guilty is traditional and fundamental and specifically authorized by this section. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.

Waiver of jury permissible. — Though charged with a felony, a defendant may waive a trial by jury. State v. Hernandez, 1942-NMSC-010, 46 N.M. 134, 123 P.2d 387.

Guilty plea as waiver of rights, defenses. — By pleading guilty the defendant admitted the acts well pleaded in the charge, waived all defenses other than that the indictment or information charges no offense, and waived the right to trial and the incidents thereof, and the constitutional guarantees with respect to the conduct of criminal prosecutions, including right to jury trial, right to counsel subsequent to guilty plea and right to remain silent. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.

Judgment and sentence entered pursuant to a plea agreement is void in the absence of an express guilty plea on the record. — Where defendant was charged with three counts of fraud, three counts of embezzlement and two counts of racketeering in three separate criminal complaints, and where defendant made a separate plea agreement in each case, and where at the plea hearing on all three complaints, the district court complied with the prerequisites set forth in Rules 5-303 and 5-304 NMRA, ensuring that the proposed guilty plea was voluntary and intelligent, but where the district court never specifically asked defendant to plead, and defendant never expressly admitted his guilt to anything in open court on the record in the hearing, the district court was without authority to sentence defendant, because in the absence of an express guilty plea on the record, a judgment and sentence that is entered pursuant to the plea agreement is void. State v. Yancey, 2017-NMCA-090, cert. granted.

Guilty plea as confession to charge. — Where appellant admittedly incriminated himself by his plea of guilty, he could not be heard to complain since by his plea he confessed the charge contained in the information. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.

Express adjudication of conviction or finding of guilt is not necessary if it is apparent from other matters in the record that the court made a judicial determination of conviction or guilt. State v. Gallegos, 1978-NMCA-114, 92 N.M. 370, 588 P.2d 1045, cert. denied, 92 N.M. 353, 588 P.2d 554.

Safeguards in admitting confession. — Before a confession may be admitted into evidence it should first be determined by the court, on an inquiry out of the presence of the jury, and as a preliminary matter, that the confession, prima facie at least, possesses all the earmarks of voluntariness. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

State must overcome evidence of excuse or justification in the form of tangible affirmative defensive or factual matter capable of specific disproof included in a confession or admission. State v. Casaus, 1963-NMSC-194, 73 N.M. 152, 386 P.2d 246.

Defendant to be heard on integrity of confession. — Any time a defendant makes it known that he has something to say touching the integrity of a confession claimed to have been made by him, however incredible it may appear to the trial court, the judge must hear him. In declining to do so, the court committed reversible error. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Plea of nolo contendere with deferred sentence. — Where defendant entered a plea of nolo contendere, which was accepted and defendant's counsel after conferring with defendant made an explanation to the court about defendant feeling sorry for what he had done, there can be no real doubt from what was said and recorded at the arraignment proceedings, from the entry of the "judgment and sentence," and from the entry of the "order of probation" that the court and defendant both understood that defendant's plea had been accepted, that defendant had been adjudged guilty of the charge on the basis of this plea, that his sentence for the offense was being deferred and that he was being placed on probation for two years upon certain expressly recited conditions. State v. Apodaca, 1969-NMCA-020, 80 N.M. 155, 452 P.2d 489.

Procedural irregularities not constitutionally significant. — Where defendant's attorney pleaded guilty for the defendant, who was present, after plea bargaining, the fact that the defendant himself did not enter the plea, that the court did not inquire whether the plea was made voluntarily and that the plea was not accepted and recorded in open court, as required by this section, did not deprive defendant of due process or raise any constitutional questions for federal habeas corpus review. Anaya v. Rodriguez, 372 F.2d 683 (10th Cir.), cert. denied, 389 U.S. 863, 88 S. Ct. 123, 19 L. Ed. 2d 133 (1967).

Misuse of word in verdict not jurisdictional. — Since the trial court unquestionably had jurisdiction over the person of defendant and over the subject matter of the offense charged, the inadvertent use of the word "information" in the jury's verdict did not raise a jurisdictional question. State v. Ortega, 1968-NMCA-097, 79 N.M. 744, 449 P.2d 346.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 525.

Propriety and effect of court's indication to jury that court would suspend sentence, 8 A.L.R.2d 1001.

Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540.

24 C.J.S. Criminal Law §§ 1458, 1480, 1481.