N.M. R. Crim. P. Dist. Ct. 5-601
N.M. R. Crim. P. Dist. Ct. 5-601
Committee commentary. - See NMSA 1978, §§ 38-3-3 to 38-3-7 (1880, as amended through 2003), for the statutes pertaining to change of venue. The original venue for a criminal case is the county in which the crime was committed. NMSA 1978, § 30-1-14(1963).
Paragraphs C and D of this rule were derived from Rules 12(b)(1) and (2) and 12(f) of the Federal Rules of Criminal Procedure. See generally 48 F.R.D. 553, 579 (1970); 62 F.R.D. 571, 287-92 (1974). Unlike the federal rule, Paragraph D of this rule does not include motions to suppress evidence as a matter which must be raised prior to trial. If a motion to suppress is made prior to trial, it is governed by Rule 5-212. Subparagraph (2) of Paragraph D, and Paragraph H of this rule superseded decisions holding that motions to quash an indictment must be raised prior to the arraignment and plea. See NMSA 1978, § 31-6-3; State v. Elam, 1974-NMCA-075, 86 N.M. 595, 526 P.2d 189.
Paragraph I was added in 1999 to provide an affirmative duty of an attorney to give five days notice of withdrawal of a motion. Failure to provide adequate notice can result in unnecessary costs. See State v. Rivera, 1998-NMSC-024, 125 N.M. 532, 964 P.2d 93. A willful violation of this paragraph can result in contempt of court and the imposition of disciplinary action. See Rule 5-112 NMRA. Paragraph I is intended to preclude local rules which may result in imposition of costs incurred by the court because of an alleged negligent failure of the attorney to provide adequate notice of the withdrawal of a motion. The committee is of the opinion that such a rule would have a chilling effect upon the zealous representation of a defendant in a criminal case.
This rule was amended in 2019 to affirmatively provide for motions to reconsider, which have long been recognized in common law though not in our Rules of Criminal Procedure. See State v. Suskiewich, 2014-NMSC-040, ¶ 12, 339 P.3d 614 ("Although our procedural rules do not grant the State an express right to file a motion to reconsider a suppression order, the common law has long recognized the validity and utility of motions to reconsider in criminal cases."). Consistent with Rule 12-201 NMRA, a motion to reconsider filed within the permissible time period for initiating an appeal will toll the time to file an appeal until the motion has been expressly disposed of or withdrawn.
ANNOTATIONS The 1999 amendment, effective May 3, 1999, substituted "ninety (90) days" for "twenty (20) days" in Paragraph D, made a stylistic change and inserted "subject to discovery" in the second sentence of Paragraph E, deleted the second sentence of Paragraph F which provided that all motions not ruled upon within 30 days after filing shall be deemed denied, substituted "at arraignment" for "before entering a plea" in Paragraph G, and added Paragraph H. Court prohibited from evaluating sufficiency of evidence prior to trial. - Where defendants were indicted for intentional or negligent child abuse resulting in great bodily harm with alternative theories that either or both inflicted the abuse or knew, or should have known, that such abuse was being inflicted; defendants were the parents of children who were determined to have been physically abused; defendants and their children lived with one of the defendants' parents; defendants each filed pretrial motions to dismiss the indictment alleging that the facts of the case were undisputed and that as a purely legal issue there was a lack of substantial evidence that could prove the identity of the perpetrator who caused the injuries to the children; and the district court held a hearing on the motions and after reviewing transcripts of witness interviews, granted the motions to dismiss, the issue of who injured the children was a question of fact for the jury to determine and the district court erred in granting the motions. State v. LaPietra, 2010-NMCA-009, 147 N.M. 569, 226 P.3d 668. Corpus delicti of vehicular homicide may be proved by circumstantial evidence. - Where defendant was charged with vehicular homicide, and where the state sought to establish the corpus delicti of vehicular homicide purely from circumstantial evidence and without any expert testimony, and where the state presented circumstantial evidence that defendant was not in the lawful operation of the vehicle, based on his admission that he was in the vehicle, that blood found on the driver's side matched defendant's DNA, and that defendant had a blood alcohol content of .06 and had methamphetamine in his system, along with evidence that the decedent was alive in the vehicle prior to the accident and was found by officers after the accident with visible signs of trauma, the district court erred in dismissing the charges based on its finding that an expert was required as a matter of law to prove cause of death, because the circumstantial evidence to be presented by the state was sufficient to establish the corpus delicti of vehicular homicide. State v. Platero, 2017-NMCA-083, cert. denied. As a general rule, a motion to suppress evidence is not required to be made before trial and may be made at trial. State v. Katrina G., 2008-NMCA-069, 144 N.M. 205, 185 P.3d 376. Failure to request an evidentiary hearing. - Where, two days before trial, the child filed a motion to suppress evidence obtained pursuant to a nighttime search of the child's home pursuant to a search warrant that did not contain a written authorization for a nighttime search, the court determined that testimony at an evidentiary hearing on the motion was required, there was no time or opportunity for an evidentiary hearing before and during trial because a Supreme Court order that extended the time for trial imposed a trial deadline, the child had delayed filing the motion, and the child did not request an evidentiary hearing or propose alternatives to an evidentiary hearing, the trial court did not deny the child her constitutional rights to a hearing by denying the motion to suppress. State v. Katrina G., 2008-NMCA-069, 144 N.M. 205, 185 P.3d 376. Entrapment. - Where a defendant's claim of entrapment is uncorroborated, the question of the defendant's credibility is best left to the jury to decide and although the district court may determine entrapment as a matter of law, it may decline to do so where facts or credibility are disputed. State v. Shirley, 2007-NMCA-137, 142 N.M. 765, 170 P.3d 1003, cert. denied, 2007-NMCERT-010. Pre-trial exclusion of expert testimony. - The trial court erred when it decided, pre-trial, that the testimony of the state's expert witness was insufficient to relate the defendant's blood alcohol test result back to the time the defendant was driving and that the testimony of the defendant's expert witness was more credible than that of the state's expert witness. State v. Hughey, 2007-NMSC-036, 142 N.M. 83, 163 P.3d 470. Denial of psychological evaluation of victim of sexual abuse. - Where defendant filed motion twelve days before his second trial to allow his expert to conduct forensic psychological evaluations of minor victims of sexual abuse, the motion was not timely and was properly denied and where defendant did not show how a present evaluation for post-traumatic stress disorder could be relevant in regard to whether the post-traumatic stress disorder suffered by the minor victims would be consistent with traumatic events other than or in addition to sexual abuse, there was no prejudice from denial of defendant's motion. State v. Paiz, 2006-NMCA-144, 140 N.M. 815, 149 P.3d 579, cert. denied, 2006-NMCERT-011. Rule does not apply to motions for new trial. State v. Shirley, 1985-NMCA-120, 103 N.M. 731, 713 P.2d 1. Rule does not require findings in connection with pretrial motion. State v. Blea, 1978-NMCA-105, 92 N.M. 269, 587 P.2d 47, cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978), 441 U.S. 908, 99 S. Ct. 1999, 60 L. Ed. 2d 377 (1979), overruled on other grounds by State v. Harrison, 1980-NMCA-186, 95 N.M. 383, 622 P.2d 288. Absent legal authorization, judge lacks authority to order production of handwriting exemplars on pain of contempt, prior to arrest or charge. Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170. When affidavit for disqualification of judge must be filed. - Denial of the request that the trial judge be disqualified was not error as the disqualification affidavit must be filed before the court has acted judicially on a material issue. State v. Clark, 1971-NMCA-176, 83 N.M. 484, 493 P.2d 969, cert. denied, 83 N.M. 473, 493 P.2d 958. Right to and purpose of change of venue. - All laws for removal of causes from one vicinage to another were passed for the purpose of promoting the ends of justice by getting rid of the influence of some local prejudice which might be supposed to operate detrimentally to the interests and rights of one or the other of the parties to the suit. This is a common-law right belonging to our courts, and as such can be exercised by them in all cases, when not modified or controlled by state constitutional or statutory enactments. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666. Right to trial in county of offense is conditional. - The right of a trial by jury as that right was known at the time of the adoption of the constitution did not include an absolute right to a trial by a jury of the county where the offense was committed, but that the right was conditioned upon the possibility of a fair and impartial trial being had in that county. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666. By the common law an accused had the right to be tried in the county in which the offense was alleged to have been committed, where the witnesses were supposed to have been accessible, and where he might have the benefit of his good character if he had established one there, but, if an impartial trial could not be had in such county, it was the practice to change the venue upon application of the people to some other county where such trial could be obtained. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666. Change of venue on court's own motion. - Under the facts of the incident out of which the charges against the defendant arose, with the attendant publicity and the fear, unrest and prejudice of the citizens of Rio Arriba and surrounding counties, the trial court's inherent power permitted it to order a change of venue on its own motion. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666. There is nothing in the constitution or statutes limiting the inherent power of the court to order a change of venue sua sponte when an impartial trial cannot be had in a particular district. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666. The process of determining whether or not the facts necessary for a change of venue exist is the same as that followed in determining any other fact in a case. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666. Denial of motion for change of venue found based on substantial evidence. - Where the trial court's ruling is supported by substantial evidence, the trial court did not abuse its discretion in not accepting as true the evidence introduced in support of a motion for change of venue, and the fact that newspaper articles were introduced in support of motion does not change the rule. Even with the newspaper articles in support of the motion, the trial court, on the evidence presented, could properly deny the motion. State v. Atwood, 1971-NMCA-171, 83 N.M. 416, 492 P.2d 1279, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972) (decided under former law). Specific findings must be requested. - Unless specific findings are requested in denial of motion for change of venue, the absence of findings is waived. State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471 (decided under former law). A defense is "capable of determination" under Subdivision (d) (see now Paragraph B) if a trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense. State v. Mares, 1979-NMCA-049, 92 N.M. 687, 594 P.2d 347, cert. denied, 92 N.M. 675, 593 P.2d 1078. Deciding lawfulness of peace officer/defendant's shooting of victim in advance of trial is a violation of Subdivision (d) (see now Paragraph B) because lawfulness is not capable of determination without a trial on the merits. State v. Mares, 1979-NMCA-049, 92 N.M. 687, 594 P.2d 347, cert. denied, 92 N.M. 675, 593 P.2d 1078. Court's authority to consider purely legal issue. - The district court had authority to consider, prior to trial, the purely legal issue of whether burglary charges could be predicated on unauthorized entry by climbing over a fence, and had authority to dismiss the charges. State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329. When a defendant raises constitutional free speech defense to charges under the Sexual Exploitation of Children Act, 30-6A-1 to -4 NMSA 1978, the district court may conduct a limited pretrial review of the materials upon which charges rest to determine whether the materials meet constitutional requirements; the district court should first review the material to ensure that it meets statutory guidelines, then review the material to ensure that constitutionally protected speech is not prosecuted. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 134 N.M. 744, 82 P.3d 554. On a pretrial motion to dismiss charges alleging violations of the Sexual Exploitation of Children Act, 30-6A-1 to -4 NMSA 1978, the district court may dismiss the charges where, on the undisputed face of the materials before the court, a jury could not find beyond a reasonable doubt that the material meets the elements of the offense as defined by the Act. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 134 N.M. 744, 82 P.3d 554. Motion based on grand jury notice held untimely. - Because defendant did not file his motion to dismiss for failure to provide target notice until eight months after his arraignment, and he did not show any cause below or on appeal for waiving the time limit, the trial court correctly found the motion to be untimely. State v. Vallejos, 1998-NMCA-151, 126 N.M. 161, 967 P.2d 836. Defect in notice of grand jury investigation must be raised before trial. - The issue of whether notice has been given to the target of a grand jury investigation as required by Section 31-6-11B NMSA 1978 is a claimed defect in the initiation of the prosecution; it must be raised prior to trial and, when raised, is to be decided by the trial court inasmuch as it does not involve a trial on the merits. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530. Motion to quash an indictment must be made before arraignment and plea. State v. Paul, 1971-NMCA-040, 82 N.M. 619, 485 P.2d 375, cert. denied, 82 N.M. 601, 485 P.2d 357 (decided under former law). When variance between charge and proof must be raised. - A question of variance between charge and proof cannot be raised for the first time by motion in arrest of judgment. State v. Mares, 1956-NMSC-031, 61 N.M. 46, 294 P.2d 284 (decided under former law). A variance between charge and proof cannot be raised for the first time after verdict by a motion for new trial. State v. Mares, 1956-NMSC-031, 61 N.M. 46, 294 P.2d 284 (decided under former law). Motion to strike jury panel after seeing defendant in handcuffs. - Where defendant moved to strike the entire jury panel because some of them had observed the defendant in handcuffs in the custody of a deputy sheriff in the corridor prior to the commencement of the trial, and where defendant later made a new motion for a mistrial because a number of the jurors observed defendant in handcuffs in the custody of a deputy sheriff returning to the trial, but where it was not contended that defendant was in handcuffs in the courtroom at any time during jury selection or trial, there was no abuse of discretion on the part of the trial judge in denying either or both of defendant's motions. State v. Gomez, 1971-NMCA-009, 82 N.M. 333, 481 P.2d 412 (decided under former law). No prejudice shown when named witness did not testify. - That one of the four persons named was not called to testify where there was nothing to indicate defendant was in any way prejudiced by the failure of the trial court to grant a continuance because this person had been named, but not called, as a witness was not error. State v. Mora, 1970-NMCA-072, 81 N.M. 631, 471 P.2d 201, cert. denied, 81 N.M. 668, 472 P.2d 382 (decided under former law). Burden was upon defendant to demonstrate a lack of jurisdiction in the district court. Having presented no evidence as to lack of jurisdiction, defendant did not meet his burden in connection with the pretrial motion for dismissal on jurisdictional grounds. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888. Unconstitutional statute does not "charge an offense". - Defendant's motion to quash the indictment for failure to charge an offense on grounds of the unconstitutionality of the statute in question fell within this rule's exception "to charge an offense" and thus it was not filed late though filed after arraignment and plea. State v. Elam, 1974-NMCA-075, 86 N.M. 595, 526 P.2d 189, cert. denied, 86 N.M. 593, 526 P.2d 187. Factors to consider when ruling on a motion for continuance. - When reviewing the denial of a motion for continuance, courts shall consider the length of the requested delay, the likelihood that a delay would accomplish the movant's objectives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legitimacy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion. State v. Gonzales, 2017-NMCA-080, cert. denied. Denial of continuance not an abuse of discretion. - Where defendant's counsel, on the day of defendant's trial for criminal sexual contact, requested a two-week continuance, the trial judge did not abuse its discretion in denying the continuance, because the trial had already been continued two times and by the date of the requested continuance, defense counsel had received an additional three months to prepare for trial, defense counsel's stated concerns regarding evidence were accounted for either months before trial or before the trial judge ruled on the motion, resetting the trial date on the day trial was supposed to begin was inconvenient for the parties and the court, and defense counsel failed to show that a denial of the continuance would prejudice defendant. State v. Gonzales, 2017-NMCA-080, cert. denied. Continuance in order to obtain certain witnesses properly denied. - Where defendant never indicated what particular facts certain requested witnesses would prove, or that he knew of no other witnesses by which such facts could be proved, defendant simply did not present a basis for a continuance, either on the question of a "sanity hearing" or on the merits of the cause. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238 (decided under former law). Continuance in order to retain counsel properly denied. - Defendant's request for time to attempt to retain his own counsel in place of court-appointed counsel was denied as it presented no independent basis for a continuance. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238 (decided under former law). That names of witnesses were not endorsed on information and defendant's alleged surprise at their being called as witnesses are insufficient as a basis for continuance. State v. Mora, 1970-NMCA-072, 81 N.M. 631, 471 P.2d 201, cert. denied, 81 N.M. 668, 472 P.2d 382 (decided under former law). Continuance for polygraph test properly denied. - The trial court's denial of defendant's oral motion, made immediately before the trial began, that the trial setting be vacated so as to enable defendant to have a polygraph examination, where no evidence was offered in support of the motion and the hearing thereon consisted entirely of representations of counsel, on grounds that the examiner chosen by defendant had stated that any examination results would not be meaningful because of pain suffered by defendant as a result of alleged injuries suffered in an automobile accident, and that defendant had had prior opportunities to obtain the examination, was not an abuse of discretion. State v. Robertson, 1977-NMCA-044, 90 N.M. 382, 563 P.2d 1175, cert. denied, 90 N.M. 637, 567 P.2d 486. Denial of motion for continuance where testimony of missing witness is not supportive. - Trial court did not abuse its discretion in denying defendant's motion for continuance sought upon the ground that defendant was unable to secure the presence of a particular witness, where the record disclosed that the testimony expected from the absent witness would not support or aid defendant in his defense. State v. Sluder, 1971-NMCA-095, 82 N.M. 755, 487 P.2d 183 (decided under former law). Matter of continuance of cause rests within sole discretion of trial court and its action will not be questioned unless it appears that there has been an abuse of discretion. State v. Baca, 1973-NMCA-054, 85 N.M. 55, 508 P.2d 1352. A motion for continuance is directed to the discretion of the court and the denial of the motion is not error unless there is a clear abuse of discretion. State v. Martinez, 1971-NMCA-115, 83 N.M. 9, 487 P.2d 919 (decided under former law). The granting or denying of a motion for continuance rests in the sound discretion of the court and unless such discretion is abused will not be reversed. State v. Paul, 1971-NMCA-107, 82 N.M. 791, 487 P.2d 493 (decided under former law). The granting of a motion for continuance lies in the sound discretion of the trial court and the denial of such a motion will not be deemed error unless there is a clear abuse of discretion. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139 (decided under former law). The granting or denying of a motion for continuance rests in the sound discretion of the trial court and will not be interfered with except for abuse. State v. Tapia, 1970-NMCA-037, 81 N.M. 365, 467 P.2d 31 (decided under former law). Where motion for continuance is sufficient there is no room for discretion. - Where there was no objection to the sufficiency of the motion for continuance or its supporting affidavit and the state did not seek to prevent a continuance by an admission that the witness, if present, would testify to the facts stated in the application for continuance, then under these circumstances the defendant was entitled to a continuance as a matter of right and there was no room for the court to exercise any discretion; therefore, the court's failure to grant a continuance was error. State v. Sibold, 1972-NMCA-056, 83 N.M. 678, 496 P.2d 738. The granting or denial of a motion for continuance is within the discretion of the trial court and where no reasons were given showing that the denial of the postponement was prejudicial, or that substantial justice could be more clearly obtained, there was no abuse of discretion. State v. Garcia, 1971-NMCA-037, 82 N.M. 482, 483 P.2d 1322. Continuance denied on grounds that court had a no continuances policy and wanted to maintain its docket was abuse of discretion where defense counsel was unprepared to go to trial; case was new to defense counsel and complex; co-defendant entered a plea agreement with state and agreed to testify for the state on the morning of the trial; state did not oppose the continuance; there was no evidence that the delay would cause any inconvenience to the parties or the court; defendant's motion was the first continuance requested and only three months had elapsed from time of arraignment to the date of trial. State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659, cert. denied, 2006-NMCERT-006. Hearing required for issue as to "illegal taint". - Where there is an issue as to an "illegal taint", the issue is to be resolved by a consideration of the totality of the circumstances surrounding the out-of-court identification. This requires an evidentiary hearing. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720 (decided under former law). Failure to name specific subsection of statute not claimed in trial court. - Where defendant claims that the charge against him for being an habitual offender was "defective" for failure to name a specific subsection of the statute, but no such claim was made in the trial court, then it will not be considered on appeal. State v. Jordan, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620. Failure to request statement of facts pursuant to Rule 5-205 NMRA. - Where on the morning of trial defendant moved to quash the indictment on the grounds that he had just learned certain facts from the prosecutor, but defendant had never requested a statement of facts pursuant to Rule 9 (see now Rule 5-205 NMRA), the trial court properly ruled that the motion was not timely filed. State v. Palmer, 1976-NMCA-060, 89 N.M. 329, 552 P.2d 231. Failure to bring motion to suppress to court's attention. - The trial court did not err in failing to conduct a hearing on a pretrial motion to suppress statements made by defendants when the motion was never brought to its attention. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084. Defendant failed to establish prejudice from untimely motion. - Where habitual offender asserted the trial court erred in granting the prosecutor's motions to fingerprint him on the morning of trial because the motion was untimely, but his claim of prejudice was not supported in the record, the trial court did not abuse its discretion in granting the motion. State v. Wildenstein, 1978-NMCA-027, 91 N.M. 550, 577 P.2d 448. Wrongful termination of diversion agreement is defense which must be raised. - A claim that a prosecutor has wrongly terminated a diversion agreement is a defense to the initiation of a criminal prosecution and must be raised prior to trial. State v. Trammel, 1983-NMCA-139, 100 N.M. 543, 673 P.2d 827. "Reasonable time" rule applies to motion for extending the time for commencement of trial under Rule 5-604 NMRA. - Because Rule 5-604 NMRA does not provide a time within which the applicable court must rule on a timely-filed motion for extending the time for commencement of trial, it must be construed according to other rules of criminal procedure. Specifically, Paragraph F of this rule establishes a general rule that all motions shall be disposed of within a reasonable time after filing and Rule 5-104(B)(1) NMRA recognizes the discretion of the district court to enlarge a time limitation contained in the Rules of Criminal Procedure if requested before the applicable time limitation expires. Under those rules, the district court has reasonable time after filing to rule on a timely-filed petition under Rule 5-604(E) NMRA, regardless of the expiration of the six-month period of Rule 5-604(B) NMRA. State v. Sandoval, 2003-NMSC-027, 133 N.M. 399, 62 P.3d 1281. Motion to dismiss involving factual matters. - Where a defendant's motion to dismiss involves factual matters that are not capable of resolution without a trial on the merits, the district court lacks authority to grant the motion pretrial. State v. Gomez, 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753. Claim not capable of determination without a trial on the merits. - Where defendant was charged with fraud, and where, prior to the presentation of evidence, defendant moved to dismiss, arguing that the victim had asserted in civil judicial pleadings that he had not relinquished all right, title, and interest in the property allegedly obtained by fraud, the district court erred in granting the motion to dismiss on the ground that the state could not prove that the victim had relied on defendant's misrepresentations in releasing him from the original purchase agreement, because the fact that the victim continued to maintain his right to payments under the original purchase agreement in a related civil proceeding is irrelevant to the question of whether defendant obtained the release itself through his alleged misrepresentation. Defendant's motion to dismiss could not be decided without a trial on the merits, and the district court's contrary conclusion was in error. State v. Pacheco, 2017-NMCA-014. Motion to dismiss timely made at trial. - A motion to dismiss on the ground that the information failed to charge an offense is timely made at trial. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545. Timing of motion to dismiss involving fundamental right. - Defendant's failure to comply with the time limitation of Subdivision (d) (see now Paragraph D) did not waive his right to seek dismissal of an indictment on the ground of prosecutorial vindictiveness, which issue involved his fundamental right to due process of law. State v. Lujan, 1985-NMCA-111, 103 N.M. 667, 712 P.2d 13. Failure to request statement of facts deemed waiver. - Where an information charged conspiracy to commit a felony as well as three other separate felonies, it provided sufficient notice of the underlying felony or felonies; and when the defendant did not request a statement of facts, he waived any claim that he did not know which of the three felonies, or whether all of them, constituted the felony he was charged with conspiring to commit. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545. Any relief available for a Rule 5-201C violation is waived where this violation is raised for the first time on appeal. State v. Keener, 1981-NMCA-139, 97 N.M. 295, 639 P.2d 582. Motion for dismissal under Rule 5-604 NMRA. - A motion seeking a dismissal under Rule 37 (see now Rule 5-604 NMRA) for a violation of the right to a speedy trial is not governed by the requirements of Subdivision (e) (see now Paragraph D) of this rule. State v. Aragon, 1982-NMCA-173, 99 N.M. 190, 656 P.2d 240. Paragraph D does not modify Paragraph C. State v. Urban, 1989-NMCA-053, 108 N.M. 744, 779 P.2d 121. Determination whether evidentiary hearing required. - The trial court must decide initially whether an evidentiary hearing is required. Ordinarily, that will be based upon the statement of facts intended to be proved. If an evidentiary hearing is not required, the trial court may decide the issues raised by the motion without a hearing. State v. Urban, 1989-NMCA-053, 108 N.M. 744, 779 P.2d 121. Paragraph E seems to provide two steps: (1) upon receipt of a motion and separate written request for an evidentiary hearing, the trial court determines whether an evidentiary hearing is required; and (2) after the motion has been set for a hearing, the parties provide each other with the required information within the time limit of the rule or the alternative time limit provided by the court. State v. Urban, 1989-NMCA-053, 108 N.M. 744, 779 P.2d 121. Speedy trial hearing under Paragraph E. - A defendant is not entitled to an evidentiary hearing under Paragraph E on a speedy trial claim where, although he has been incarcerated, he has not been charged, since the sixth amendment speedy trial guarantee does not apply until charges are pending. State v. Urban, 1989-NMCA-053, 108 N.M. 744, 779 P.2d 121. Selective prosecution claim is an application for dismissal on constitutional grounds, to be decided by the trial judge after evidence is presented at a pretrial hearing. State v. Cochran, 1991-NMCA-051, 112 N.M. 190, 812 P.2d 1338. Pretrial review of death penalty aggravating circumstances. - A motion to dismiss an aggravating circumstance that presents a purely legal question should be granted when the district court finds that the aggravating circumstance does not apply as a matter of law. When the applicability of an aggravating circumstance raises a question of fact or a mixed question of fact and law, the district court should grant the defendant's motion to dismiss the aggravating circumstance only when it finds that there is not probable cause to support the aggravating circumstance. To reach an appropriate decision, the district court may conduct a limited evidentiary hearing on a pretrial motion to dismiss aggravating circumstances when necessary. State v. Ogden, 1994-NMSC-029, 118 N.M. 234, 880 P.2d 845, cert. denied, 513 U.S. 936, 115 S. Ct. 336, 130 L. Ed. 2d 294 (1994). Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 1109, 1110; 75 Am. Jur. 2d Trial § 91 et seq. Defendant's appeal from plea conviction as affected by prosecutor's failure or refusal to dismiss other pending charges, pursuant to plea agreement, until expiration of time for appeal, 86 A.L.R.3d 1262. Validity and effect of criminal defendant's express waiver of right to appeal as part of negotiated plea agreement, 89 A.L.R.3d 864. Power of state trial court in criminal case to change venue on its own motion, 74 A.L.R.4th 1023. Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties, 18 A.L.R.5th 1. Availability in federal court of defense of entrapment where accused denies committing acts which constitute offense charged, 54 A.L.R. Fed. 644. 88 C.J.S. Trial § 1 et seq; 89 C.J.S. Trial § 427 et seq.