A.Explanation of rights. On the first appearance of the defendant in response to a summons, warrant, or arrest, the court shall determine that the defendant has been informed of the following: (2) the maximum penalty and mandatory minimum penalty, if any, provided for the offense charged;(3) the right to bail or the possibility of pretrial detention under Rule 5-401(G) NMRA;(4) the right, if any, to the assistance of counsel at every stage of the proceedings;(5) the right, if any, to representation by an attorney at state expense;(6) the right to remain silent, and that any statement made by the defendant may be used against the defendant;(7) the right, if any, to a jury trial;(8) in those cases not within the court's trial jurisdiction the right to a preliminary examination;(9) that, if the defendant pleads guilty or no contest, it may have an effect upon the defendant's immigration or naturalization status, and if the defendant is represented by counsel, the court shall determine that the defendant has been advised by counsel of the immigration consequences of a plea;(10) that, if the defendant is charged with a crime of domestic violence or a felony, a plea of guilty or no contest will affect the defendant's constitutional right to bear arms, including shipping, receiving, possessing, or owning any firearm or ammunition, all of which are crimes punishable under federal law for a person convicted of domestic violence or a felony; and(11) that, if the defendant pleads guilty or no contest to a crime for which registration as a sex offender is or may be required, and, if the defendant is represented by counsel, the court shall determine that the defendant has been advised by counsel of the registration requirement under the Sex Offender Registration and Notification Act, Sections 29-11A-1 to -10 NMSA 1978. The court may allow the defendant reasonable time and opportunity to make telephone calls and consult with counsel.
B.Offense within the court's trial jurisdiction. If the offense charged is within the court's trial jurisdiction, the court shall require the defendant to plead to the complaint, under Rule 6-302 NMRA, and if the defendant refuses to answer, the court shall enter a plea of "not guilty" for the defendant. If, after entry of a plea of "not guilty," the defendant remains in custody, the action shall be set for trial as soon as possible.C.Insanity or incompetency. If the defendant raises the defense of "not guilty by reason of insanity at the time of commission of an offense,", after setting conditions of release, the action shall be transferred to the district court. If a question is raised about the defendant's competency to stand trial, the court shall proceed under Rule 6-507.1 NMRA.D.Waiver of arraignment or first appearance. With prior approval of the court, an arraignment or first appearance may be waived by the defendant filing a written waiver. A waiver of arraignment and entry of a plea or waiver of first appearance shall be substantially in the form approved by the Supreme Court.E.Felony offenses; preliminary examination. If the offense is a felony and the defendant waives preliminary examination, the court shall bind the defendant over to the district court. If the defendant does not waive preliminary examination and a motion for an expedited pretrial detention hearing has not been filed, the court shall proceed to conduct the examination in accordance with Rule 6-202 NMRA.F.Bail. If the defendant has not been released by the court or the court's designee, and if the offense charged is a bailable offense, the court shall enter an order prescribing conditions of release in accordance with Rule 6-401 NMRA. However, the court may delay entry of conditions of release for twenty-four (24) hours from the date of the initial appearance, not to exceed the time limits in Rule 6-401(A) NMRA, if the defendant is charged with a felony offense (1) involving the use of a firearm;(2) involving the use of a deadly weapon resulting in great bodily harm or death;(3) which authorizes a sentence of life in prison without the possibility of parole; or(4) a public safety assessment instrument approved by the Supreme Court for use in the jurisdiction flags potential new violent criminal activity for the defendant. The court shall immediately give notice to the prosecutor, the defendant and defense counsel of record, or, if defense counsel has not entered an appearance, the local law office of the public defender or, if no local office exists, the director of the contract counsel office of the public defender, of the circumstances in Subparagraphs (F)(1)-(4) above that warrant delaying entry of conditions of release.
If the prosecutor does not file a motion for an expedited pretrial detention hearing by the date scheduled for the conditions of release hearing, the court shall issue an order setting conditions of release under Rule 6-401 NMRA.
N.M. R. Crim. P. Magist. Ct. 6-501
As amended, effective 3/1/1987;10/1/1987;9/1/1990;10/1/1996;11/1/2000; as amended by Supreme Court Order No. 07-8300-030, effective 12/15/2007; as amended by Supreme Court Order No. 18-8300-023, effective for all cases filed on or after2/1/2019; as amended by Supreme Court Order No. 20-8300-013, effective for all cases pending or filed on or after 11/23/2020; as amended by Supreme Court Order No. 22-8300-015, effective for all cases pending or filed on or after December 31, 2022.Committee commentary. - If it is determined by the judge that the defendant is not represented by counsel, and it further appears that the defendant may be indigent, if the judge decides that no imprisonment will be imposed if the defendant is found guilty, then the court need not advise the defendant of his or her right to assistance of counsel at every stage of the proceedings and of the defendant's right to representation by an attorney at state expense. However, if the judge decides that imprisonment will be imposed or that this decision cannot be made at this stage of the proceedings, then the judge shall advise the defendant of the defendant's right to assistance of counsel at every stage of the proceedings and the defendant's right to be represented by an attorney at state expense if the defendant is indigent. Argersinger v. Hamlin, 407 U.S. 25 (1972).
The defendant may waive counsel so long as the waiver is knowingly, voluntarily, and intelligently made and the defendant is aware of the possible disadvantages of proceeding without the assistance of counsel. State v. Greene, 1977-NMSC-111, 91 N.M. 207, 572 P.2d 935; North Carolina v. Butler, 441 U.S. 369 (1979).
[Adopted by Supreme Court Order No. 22-8300-015, effective for all cases pending or filed on or after December 31, 2022.]
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-023, effective February 1, 2019, provided that a court shall proceed under Rule 6-507.1 NMRA if a question is raised about the defendant's competency to stand trial; in Subparagraph A(11), changed "29-11A-1 NMSA 1978" to "NMSA 1978, Sections 29-11A-1 to -10"; added new paragraph designation "C" and redesignated former Paragraphs C through E as Paragraphs D through F, respectively; in Paragraph C, added the paragraph heading, deleted "pleads", added "raises the defense of", deleted "or if an issue is raised as to the mental competency of the defendant to stand trial" and added "at the time of commission of an offense", and added the last sentence; and in Paragraph E, in the paragraph heading, deleted "examination" and added "hearing". The 2007 amendment, approved by Supreme Court Order No. 07-8300-030, effective December 15, 2007, added Subparagraphs 9, 10 and 11 of Paragraph A, providing for a determination by the court as to whether the defendant has been counseled on immigration, domestic violence and sex offender registration laws. The 2000 amendment, effective November 1, 2000, rewrote the rule with little substantive change, except for the deletion of former Paragraph F, relating to audiovisual appearances or arraignments.
For explanation of right to, and opportunity to consult with, public defender, see Section 31-15-12 NMSA 1978. For waiver of counsel form, see Rule 9-401 NMRA. For form on transfer order, see Rule 9-404 NMRA. For a discussion of the consequences of a conviction under the Family Violence Protection Act, 40-13-1 NMSA 1978, and the so-called "Brady Bill", 18 U.S.C. Section 922, see Civil Form 4-970 NMRA. Failure to timely hold preliminary examination does not divest jurisdiction. - The magistrate court does not automatically lose jurisdiction upon failing to hold a preliminary examination within the time provisions of Rule 6-202D NMRA. State v. Tollardo, 1982-NMCA-156, 99 N.M. 115, 654 P.2d 568. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 632 , 635 , 825. Necessity of proving venue or territorial jurisdiction of criminal offense beyond reasonable doubt, 67 A.L.R.3d 988.