Any prisoner whose limits of confinement have been extended, or who has been granted a visitation privilege under the inmate-release program, who willfully fails to return to the designated place of confinement within the time prescribed, with the intent not to return, is guilty of an escape.

Whoever is convicted of an escape under the provisions of this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

History: 1953 Comp., § 42-1-81, enacted by Laws 1969, ch. 166, § 4; 1975, ch. 210, § 1; 1980, ch. 22, § 1.

Willfulness. — Willfulness is an essential element of the crime of escape from the inmate-release program, and the term means a conscious, purposeful failure to return within the time fixed as distinguished from an involuntary failure to return. State v. Rosaire, 1996-NMCA-115, 123 N.M. 250, 939 P.2d 597, aff'd, 1997-NMSC-034, 123 N.M. 701, 945 P.2d 66.

Burden of proof. — A defendant may be guilty under this section if he or she intends not to return at the time fixed, but the state must prove beyond a reasonable doubt that the failure to return at the time fixed is not only purposeful but also without justification or excuse. State v. Rosaire, 1997-NMSC-034, 123 N.M. 701, 945 P.2d 66.

Crime of specific intent. — The crime described by this section, escape from an inmate-release program, is a specific intent crime. State v. Tarango, 1987-NMCA-027, 105 N.M. 592, 734 P.2d 1275, cert. denied 105 N.M. 521, 734 P.2d 761, overruled on other grounds by Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588.

Jury instructions. — Jury instruction based on UJI 14-2228 was defective because it did not contain the element of "willfulness" as required by this section. State v. Rosaire, 1997-NMSC-034, 123 N.M. 701, 945 P.2d 66 (decided under prior law).

Habitual offender enhancement of an escape conviction does not constitute double jeopardy. State v. Najar, 1994-NMCA-098, 118 N.M. 230, 880 P.2d 327, cert. denied, 118 N.M. 90, 879 P.2d 91.