N.M. R. App. P. 12-205

As amended through May 8, 2024

Rule 12-205 - Release pending appeal in criminal matters

A.Appeal by the state. When the state appeals an order dismissing a complaint, information, or indictment, the district court shall consider releasing the defendant on personal recognizance or unsecured appearance bond pending final determination of the appeal. When the state appeals an order suppressing or excluding evidence or requiring the return of seized property, the defendant may be released under conditions determined in accordance with Rule 5-401 NMRA.

B.Motion to review conditions of release. Upon motion, the district court shall initially set conditions of release pending appeal. A motion by either party for modification of the conditions of release shall first be made to the district court and may be decided without the presence of the defendant. If the district court has refused release pending appeal or has imposed conditions of release pending appeal that the defendant cannot meet, a motion for modification of the conditions may be made to the appropriate appellate court. If the case has not been previously docketed in the appellate court, subject to the provisions of Rule 12-304 NMRA, the docket fee shall accompany the motion. The motion may be made at any time and shall be determined promptly by the appellate court on the papers, affidavits, and portions of the record presented by the parties.

C.Further review by certiorari. 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. Upon the granting of a petition for certiorari by the Supreme Court, the defendant may file a motion in the Supreme Court for modification of conditions of release in accordance with Paragraph B of this rule.

D.United States Supreme Court. Upon filing an appeal or a petition for writ of certiorari in the United States Supreme Court, the defendant may file a motion for modification of conditions of release with the appellate court whose decision is sought to be reviewed.

E.Further appeal by state. If the state files a petition for rehearing or for certiorari in the Supreme Court or in the United States Supreme Court, and the mandate is stayed in accordance with Rule 12-402 NMRA, the defendant may file a motion for release or modification of conditions of release with the appellate court whose decision is sought to be reviewed.

N.M. R. App. P. 12-205

As amended by Supreme Court Order No. 07-8300-019, effective 8/13/2007; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after7/1/2017.

Committee commentary. - The Supreme Court has exclusive appellate jurisdiction over the conditions of release pending appeal in a case where the defendant faces a possible sentence of life imprisonment or death or in a case where the district court has imposed a sentence of life imprisonment or death. See N.M. Const. art. VI, § 2; State v. Brown, 2014-NMSC-038, ¶ 17, 338 P.3d 1276.

[Adopted by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017.]

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ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, revised the language to clarify provisions related to the review of orders releasing defendants pending appeal in criminal matters, and added the committee commentary; in Paragraph A, after "defendant on", deleted "nominal bail or his own" and added "personal", after "recognizance", added "or unsecured appearance bond", after "in accordance with", deleted "Paragraph B of", and after "Rule 5-401", deleted "of the Rules of Criminal Procedure" and added "NMRA"; in Paragraph B, after "conditions may be made to the", deleted "court of appeals" and added "appropriate appellate court", after "docketed in the", deleted "court of appeals" and added "appellate court, subject to the provisions of Rule 12-304 NMRA", after "docket fee", deleted "or order granting free process", and after "determined promptly by the", added "appellate"; added paragraph designation "C." and redesignated former Paragraphs C and D as Paragraphs D and E, respectively; in Paragraph C, added the heading, and after "in accordance with", added "Paragraph B"; and in Paragraph D, in the heading, after "Supreme Court", deleted "appeal; certiorari". The 2007 amendment, approved by Supreme Court Order No. 07-8300-019, effective August 13, 2007, added the last sentence of Paragraph B providing that the granting of the petition for writ of certiorari does not stay the proceedings in the Court of Appeals.

For the right to bail on appeal, see N.M. Const., art. II, § 13 and 31-11-1 NMSA 1978. For bail upon state's appeal, see Section 31-11-2 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 9. Bail determination within discretion of trial court. - Where the defendant is entitled to bond pending final determination of his conviction, the determination of what bail is proper to grant is particularly within the trial court's discretion, but a demand for a corporate surety with a predetermined exclusion of all other collateral as surety is an abuse of discretion. State v. Lucero, 1970-NMCA-057, 81 N.M. 578, 469 P.2d 727. Am. Jur. 2d, A.L.R. and C.J.S. references. - What is "a substantial question of law or fact likely to result in reversal or an order for a new trial" pursuant to 18 USCS § 3143(b)(2) respecting bail pending appeal, 79 A.L.R. Fed. 673.