A.Scope. This rule governs appeals under Rule 5-405 NMRA from orders regarding release or detention. The provisions of Rule 12-201 NMRA, Rule 12-208 NMRA, Rule 12-210 NMRA, and Rule 12-404 NMRA shall not apply to appeals under this rule.B.Computation of time. All time periods set forth in this rule shall be construed as calendar days, and the manner of computing time set forth in Rule 12-308 NMRA for periods of less than eleven (11) days shall not apply. If the last day of a time period prescribed by this rule falls on a weekend, court holiday, or other day that the appellate court is closed or unavailable for filing, the required action shall be deemed timely if taken on the next day that the court is open and available for filing. The additional three (3)-day period provided in Rule 12-308(B) NMRA for certain kinds of service shall not apply to the time periods set forth in this rule. The court shall not extend the time periods set forth in this rule.C.Initiating the appeal.(1)Motion. An appeal under this rule shall be initiated by filing a motion with the clerk of the appropriate appellate court within ten (10) days after the decision of the district court is filed. The motion shall specify the decision appealed from and shall include, by attachments, any materials deemed necessary for consideration of the matter by the appellate court, including any available audio recording or stenographic transcript of the hearing in district court. The docket fee shall be paid at the time the motion is filed, subject to the provisions of Rule 12-304 NMRA.(2)Notice. The appellant shall give notice of the filing of the motion to the appellate division of the attorney general, appellate division of the public defender, trial judge, and trial counsel of record for each party other than the appellant.(3)Stay of proceedings. An appeal under this rule does not stay the proceedings in the trial court.D.Appellate court review.(1)Initial evaluation. The appellate court clerk shall docket the appeal upon receipt of the motion and present it to the court. The appeal may be submitted to a panel of three (3) justices or judges for decision. Within five (5) days of the filing of the motion, the appellate court shall do one of the following: (a) if it appears that the appeal is without merit, affirm the decision of the district court in accordance with Subparagraph (D)(2) of this rule; or(b) order the appellee to file a response within five (5) days of the date of the order requesting the response.(2)Disposition.(a)Time. The appellate court shall review the appeal in an expedited manner. If the appellate court has ordered the appellee to file a response, the court shall dispose of the appeal within seven (7) days after the response is filed. If the appellee fails to file a timely response, the court shall dispose of the appeal within five (5) days after the response was due.(b)Standard of review. The decision of the district court shall be set aside only if it is shown that the decision(i) is arbitrary, capricious, or reflects an abuse of discretion;(ii) is not supported by substantial evidence; or(iii) is otherwise not in accordance with law.(c)Effect. The appellate court's final disposition shall be effective in accordance with the following provisions.(i) A final disposition in the Court of Appeals shall not be subject to a motion for rehearing and shall not be effective until eleven (11) days after filing the disposition with the appellate court clerk unless a petition for writ of certiorari is filed under Paragraph E of this rule, in which case the Court of Appeals' disposition shall be automatically stayed pending the outcome of the proceeding on certiorari. If a petition for writ of certiorari is not filed within the time deadline in Paragraph E of this rule, the Court of Appeals shall immediately issue its mandate. (ii) A final disposition in the Supreme Court shall not be subject to a motion for rehearing, and its mandate shall issue immediately. E.Further review by certiorari.(1) Notwithstanding the time provisions in Rule 12-502(B) NMRA, a party may seek review of a decision of the Court of Appeals by filing a petition for writ of certiorari under Rule 12-502 NMRA no later than ten (10) days after the disposition is filed in the Court of Appeals. (2) The cover page of the petition shall be labeled "Expedited Petition for Writ of Certiorari." In all other respects, the form and content of a petition shall be governed by the provisions of Rule 12-502 NMRA.(3) The petition may be submitted to a panel of three (3) justices for decision. The Supreme Court shall review the petition in an expedited manner. No response to the petition shall be filed except as directed by order of the Supreme Court, provided that the respondent shall have a right to file a response, as directed by the Supreme Court, before any petition is granted.(4) The final disposition of a petition shall be effective upon filing with the Supreme Court clerk and shall not be subject to a motion for rehearing. If the petition is denied, a copy of the Supreme Court order shall be immediately delivered to the Court of Appeals, which shall immediately issue its mandate in accordance with Rule 12-402(C) NMRA. If the petition is granted, the final decision disposing of the certiorari proceeding shall also constitute the mandate of the Supreme Court.As amended by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after12/31/2016; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after7/1/2017.Committee commentary. - This rule addresses appeals under Article II, Section 13 of the New Mexico Constitution and NMSA 1978, Section 39-3-3(A)(2). An appeal under this rule should be filed in the Court of Appeals or the Supreme Court, as jurisdiction may be vested by law. The Supreme Court has "exclusive jurisdiction over interlocutory appeals . . . in cases where the defendant faces a possible sentence of life imprisonment or death." State v. Brown, 2014-NMSC-038, ¶ 17, 338 P.3d 1276. This rule was amended in 2017 in response to the 2016 amendment to Article II, Section 13. As amended, Article II, Section 13(1) permits a court of record to order the detention of a felony defendant pending trial if the prosecutor proves by clear and convincing evidence that the defendant poses a danger to the safety of any other person or the community and that no release condition or combination of conditions will reasonably ensure the safety of any other person or the community, and (2) requires the district court to release a defendant who is in custody solely due to financial inability to post a secured bond. "An appeal from an order denying bail shall be given preference over all other matters." N.M. Const. Art. II, § 13.
[Adopted by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after December 31, 2016; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017.]
. ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, revised the rule regarding appeals of release orders to conform to amendments to Article II, Section 13 of the New Mexico Constitution, rewrote the rule to such an extent that a detailed comparison is impracticable, and revised the committee commentary. The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, provided the procedure for the filing a petition for writ of certiorari for a defendant seeking review of a decision of the Court of Appeals, made certain technical amendments, and added the Committee commentary; in Paragraph (A), after "provided for by", deleted "NMSA 1978, §" and added "Section", after "39-3-3A(2)", added "NMRA 1978", after "Rule 5-405", added "NMRA", after "motion with the clerk of the", deleted "court of appeals" and added "appropriate appellate court", and after "by attachments,", deleted "a copy of the 'Record of Responses to Questions at Release Hearing,' and such affidavits or other papers" and added "any materials"; in Paragraph (C), in the introductory paragraph, added the second sentence, and after "decision", deleted the colon", and after Subparagraph (C)(3), deleted "The appellate court clerk shall send a copy of the order disposing of the appeal to the parties and the district court clerk."; and added new Paragraph (D). Post-conviction proceedings must be invoked before habeas corpus may be sought. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861. Former Rule 204, N.M.R. App. P. (Crim.) (see now this rule) most appropriate means for appealing order denying or revoking bail. State v. David, 1984-NMCA-119, 102 N.M. 138, 692 P.2d 524. Supreme Court's exclusive jurisdiction. - The New Mexico Supreme Court has exclusive jurisdiction over interlocutory appeals from pretrial release orders in cases where the defendant faces a possible sentence of life imprisonment or death. State v. Brown, 2014-NMSC-038. Law reviews. - For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 C.J.S. Appeal and Error § 96 et seq.