N.M. R. Crim. P. Magist. Ct. 6-703
N.M. R. Crim. P. Magist. Ct. 6-703
Committee commentary. - Former Paragraph H was redesignated as Paragraph B and revised to clarify that bond liability terminates upon a finding of guilt pursuant to NMSA 1978, § 31-3-10(1987). Paragraph D was added to clarify that all aspects of the sentence shall be stayed pending appeal because there were wide variances in interpretation and practice. The provision in Paragraph D regarding preparation and issuance of the abstract of record of the defendant's conviction is intended to reconcile the potentially conflicting ten (10) day deadline in NMSA 1978, Section 66-8-135 and the fifteen (15) day notice of appeal deadline in this rule and NMSA 1978, Section 35-13-1.
[Adopted by Supreme Court Order No. 12-8300-019, effective August 3, 2012.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, revised the citation to Rule 6-401 NMRA to reflect amendments to that rule, and made other stylistic changes to the rule; in Paragraph A, after "Rule 5-826 NMRA", deleted "of the Rules of Criminal Procedure for the District Courts"; in Paragraph B, replaced each occurrence of "assure" with "ensure", after "criteria listed in", deleted "Paragraph B of", and after "Rule 6-401", added "(C)"; and in Paragraph C, replaced each occurrence of "which" with "that". The 2012 amendment, approved by Supreme Court Order No. 12-8300-019, effective for all cases pending or filed on or after August 3, 2012, required that appeals follow the Rules of Criminal Procedure for the District Courts; terminated bond liability upon a finding of guilt; authorized the court to set an appeal bond; specified the criteria for setting conditions of release; stayed all aspects of a sentence pending appeal; provided deadlines for the preparation of an abstract of record of the defendant's conviction; in Paragraph A, added "in accordance with Rule 5-826 NMRA of the Rules of Criminal Procedure for the District Courts", deleted the former third sentence which provided that the three day mailing period did not apply to the time limits for appeal, deleted the former fourth sentence which provided for the filing of a notice of appeal before the filing of the judgment, and deleted the former fifth sentence which provided that no docket fee or cost would be imposed on the state or political subdivision or a defendant represented by a public defender or court appointed counsel; relettered Paragraph H as Paragraph B; in Paragraph B, deleted the former first through the sixth sentences which provided for the review of the conditions of release pending appeal, criteria for setting conditions of release, the continuance of former conditions of release and bond unless changed by the court, and added the first four sentences of the paragraph; added Paragraph D; deleted former Paragraph B which provided for the filing of a notice of appeal; deleted former Paragraph C which required that the notice of appeal substantially conform to the approved form; deleted former Paragraph D which provided for service of the notice of appeal; deleted former Paragraph E which provided for the docketing of the appeal; deleted former Paragraph F which provided for the record on appeal; deleted former Paragraph G which provided for the correction of the record; deleted former Paragraph J which provided for a trial de novo; deleted former Paragraph K which provided for notice of a trial setting by the clerk of the district court; deleted former Paragraph L which required a trial in district court to be held within six months; deleted former Paragraph M which provided for the extension of the time for trial by the Supreme Court; deleted former Paragraph N which provided for the procedure on appeal; deleted former Paragraph O which provided for the disposition of appeals by the district court; deleted former Paragraph P which provided for remand to the magistrate court; deleted former Paragraph Q which provided for appeals to the Supreme Court or to the Court of Appeals; and deleted former Paragraph R which provided for the return of the record. The 2008 amendment, approved by Supreme Court Order No. 08-8300-055, effective January 15, 2009, in Paragraph L, changed "shall" to "may" and added ", or the court may consider other sanctions as appropriate" to the end of the last sentence. The 2007 amendment, approved by Supreme Court Order No. 07-8300-034, effective January 22, 2008, amended Paragraph L to delete the time limitations for the disposition of criminal cases and adopt by reference from Rule 5-604 NMRA the following time limits for commencement of trial: B. Time limits for commencement of trial. The trial of a criminal case or habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest: (2) if the proceedings have been stayed to determine the competency of the defendant to stand trial, the date an order is filed finding the defendant competent to stand trial; (3) if a mistrial is declared or a new trial is ordered by the trial court, the date such order is filed; (4) in the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in the district court disposing of the appeal; (8) the date the court allows the withdrawal of a plea or the rejection of a plea made pursuant to Paragraphs A to F of Rule 5-304 NMRA. The 2003 amendment, effective February 16, 2004, added the last two sentences in Paragraph H. The 1997 amendment, effective January 1, 1997, in Paragraph A, substituted "aggrieved by the judgment or final order in a criminal action" for "aggrieved by any final order or judgment" in the first sentence, inserted "in the district court" in the second sentence, and rewrote the last sentence; in Paragraph B, inserted "with proof of service" in Subparagraph (1) and "promptly" in Paragraph (2), and added Subparagraph (2)(b); rewrote Paragraphs C and D which formerly related to stay and docketing of the appeal, respectively; added Paragraph E; redesignated former Paragraph E as Paragraph F and rewrote that paragraph; added Paragraph G and redesignated former Paragraphs F through K as Paragraphs H through M; rewrote Paragraph H; added the last two sentences in Paragraph I; rewrote Paragraph J; substituted "appeals" for "cases" in Paragraph K; substituted "a trial de novo appeal" for "the appeal" in Paragraph L; rewrote Paragraph M; added Paragraph N; deleted former Paragraph L relating to final order and remand to magistrate court; and added Paragraphs O to R. The 1995 amendment, effective January 1, 1995, added Paragraph I, and redesignated the remaining paragraphs accordingly and made related changes. The 1994 amendment, effective January 1, 1994, in Paragraph A, deleted "by defendant" in the paragraph heading and rewrote the paragraph, which read "A defendant who is aggrieved by any judgment rendered by the magistrate court may appeal to the district court of the county within which the magistrate court is located within fifteen (15) days after entry of the judgment or final order"; and substituted "any recording of the proceedings" for "any record of proceedings" in Subparagraph E(2). The 1990 amendment, effective for cases filed in the magistrate courts on or after September 1, 1990, deleted Subparagraph (5) in Paragraph E, which read "the record of the hearing in the magistrate court, if any". The 1989 amendment, effective for cases filed in the magistrate courts on or after September 1, 1989, added Paragraph K.
For form on notice of appeal, see Rule 9-607 NMRA. For form on title page of transcript of criminal proceedings, see Rule 9-608 NMRA. For notice of appeal, see Rule 9-607 NMRA. For title page of transcript of proceedings, see Rule 9-608 NMRA. For the withdrawal or rejection of a plea by the magistrate court, see Rule 6-501 NMRA. De novo appeal. - Where defendant was charged in magistrate court with driving while intoxicated and waived arraignment; defendant's trial was delayed more than six months; the magistrate court denied defendant's motion to dismiss for failure to comply with the six-month rule and extended the time for trial; and on appeal, the district court dismissed the case because the state had failed to respond, in writing, to defendant's magistrate court motion to dismiss and the magistrate court failed to provide a statement in the record as to the bases upon which the magistrate court found exceptional circumstances to extend the time limit for trial, the district court improperly treated the matter as an appeal-on-the-record appeal instead of as a de novo appeal in which district court would base its decision on an independent determination of whether the violation of the six-month rule warranted dismissal. State v. Sharp, 2012-NMCA-042, 276 P.3d 969, cert. denied, 2012-NMCERT-003. An appeal from a finding of direct criminal contempt shall be tried de novo in the district court. - Where the magistrate court filed an order finding that defendant committed direct criminal contempt during a video arraignment, and where defendant appealed to the district court, the district court did not have jurisdiction to conduct an on-the-record review; the magistrate court is not a court of record, and therefore appeals from the magistrate court shall be tried de novo in the district court. The district court was required to hold a trial de novo, in which the state was required to prove beyond a reasonable doubt that defendant committed direct criminal contempt of the magistrate court. State ex rel. Bevacqua-Young v. Steele, 2017-NMCA-081, cert. denied. Order of dismissal is an appealable final order. - Where, after a hearing pursuant to a "Notice of Probable Cause/Bench Trial", the magistrate court entered an order which dismissed the action due to no probable clause, the order was an appealable final order. State v. Montoya, 2008-NMSC-043, 144 N.M. 458, 188 P.3d 1209. Order suppressing evidence is not a final order. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, cert. granted, 2004-NMCERT-008. Magistrate court orders suppressing evidence were not final orders in either an actual or practical sense. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, cert. granted, 2004-NMCERT-008. Former rule applies to appeal pending on effective date of amendments. - N.M. Const., art. IV, § 34, which provides that no act of the legislature shall change rules of procedure in any pending case, applies to court rules as well as to legislation. State v. DeBaca, 1977-NMCA-089, 90 N.M. 806, 568 P.2d 1252. Applicability of rule. - District court erred in reversing defendant's convictions on grounds that Rule 5-604 NMRA was violated; because the case was heard before a magistrate, Rule 5-604 NMRA was inapplicable and this rule should have been applied. State v. Wilson, 1998-NMCA-084, 125 N.M. 390, 962 P.2d 636. Preferred procedure for appeal to Court of Appeals after conditional plea is entered in magistrate court is for the district court to issue a final and appealable order dismissing the appeal or to issue an order granting the motion to suppress. State v. Celusniak, 2004-NMCA-070, 135 N.M. 728, 93 P.3d 10. Magistrate controls judgment until opportunity to appeal expires. - A magistrate has continuing control over a criminal judgment only until such time as the aggrieved party's opportunity to file an appeal expires. The time limitation for filing the appeal is 15 days. State v. Ramirez, 1981-NMSC-125, 97 N.M. 125, 637 P.2d 556. Officer may not continue municipal or magistrate case in district court. - A peace officer who has prosecuted a criminal case in magistrate or municipal court may not continue to prosecute the case in district court after an appeal of the magistrate or municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27. Limited authority of district court upon expiration of six-month period. - Absent a hearing on an appeal from a magistrate court within six months of the date of the notice of appeal, the district court's only authority is to dismiss the appeal and remand the cause to the magistrate court for enforcement of its judgment. State v. Rivera, 1978-NMCA-089, 92 N.M. 155, 584 P.2d 202; State v. Hrabak, 1983-NMCA-100, 100 N.M. 303, 669 P.2d 1098. Court at fault for not setting timely hearing on appeal. - If the district court is at fault in not setting an appeal for hearing within six months, it does not err in denying the state's motion to dismiss the appeal and it has jurisdiction to dismiss the complaint with prejudice. State v. Hrabak, 1983-NMCA-100, 100 N.M. 303, 669 P.2d 1098. Late filing of appeal. - Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Court error may excuse late appeal. - One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Order of remand not final. - When the district court enters an order of remand to the magistrate court that does not resolve the issue of sentencing, the order is not final and appealable. State v. Montoya, 2005-NMCA-005, 136 N.M. 674, 104 P.3d 540, cert. granted, 2005-NMCERT-001. Sentence must be imposed prior to final order. - The district court must impose a sentence prior to remanding a case to magistrate court for enforcement of the district court's final order. State v. Cordova, 1992-NMCA-055, 114 N.M. 22, 833 P.2d 1203. An accused who has entered into a plea agreement is not an "aggrieved party" entitled to an appeal, although the agreement is not reduced to writing, as required by Rule 6-502. State v. Johnson, 1988-NMCA-029, 107 N.M. 356, 758 P.2d 306. Scope of appeal. - Where defendant did not challenge his convictions on appeal and did not claim to be aggrieved, but only challenged constitutionality of a federal statute and its effect on him, defendant lacked the right to appeal his conviction. State v. Garcia, 2003-NMCA-045, 133 N.M. 444, 63 P.3d 1164. There is no authority provided in the magistrate rules which allows an appeal for other than judgments or final orders from magistrate courts to the district courts. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 96 P.3d 627, cert. granted, 2004-NMCERT-008. Failure of counsel to timely appeal conditional plea agreement. - Defense counsel's failure to timely appeal defendant's magistrate court conditional plea agreement presumptively constituted ineffective assistance of counsel and the district court's dismissal of defendant's appeal was improper. State v. Eger, 2007-NMCA-039, 141 N.M. 379, 155 P.3d 784. Am. Jur. 2d, A.L.R. and C.J.S. references. - Amendment, after expiration of time for filing motion for new trial in criminal case, of motion made in due time, 69 A.L.R.3d 933. 24 C.J.S. Criminal Law §§ 1674 et seq.