N.M. R. App. P. 12-211
N.M. R. App. P. 12-211
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-035, effective January 7, 2013, clarified the reasons for not designating parts of the proceedings for inclusion in the transcript; in Subparagraph (1) of Paragraph C, in the second sentence, after "inclusion in the transcript", added "either because the appellant does not deem any part of the proceedings necessary for the appeal or because no proceedings were held in the district court". The 2006 amendment, approved by Supreme Court Order No. 06-8300-014, effective July 15, 2006, provided for service on the appellate court in Subparagraph (1) of Paragraph C and added Paragraph L providing for the duties of an appointed attorney on appeal. The 2005 amendment, effective March 15, 2005, substituted "audio" and "audio recording" for "tapes" and "tape recordings" and added a new Subparagraph (2) to Paragraph A to define "audio recording" and provide for standards. The 2000 amendment, effective September 15, 2000, in Paragraph C(1), added the second sentence, and inserted "or the notice of nondesignation" following "service of the designation" in the fourth sentence and in Paragraph C(5), substituted "at the same time as the notice of appeal" for "within fifteen (15) days after the judgment or order appealed from is filed in the district court" at the end of the first sentence. The 1998 amendment, effective for pleadings due on and after April 1, 1998, inserted "or statement of the issues" following "docketing statements" in Paragraph C. The 1997 amendment, effective January 1, 1997, substituted "fifteen (15) days" for "ten (10) days" throughout the rule. The 1993 amendment, effective December 1, 1993, in Paragraph A, deleted "permanent" preceding "storage" and added the language beginning "in accordance" in the last sentence; inserted "and except for those cases described in subsection (5) of this rule" and made gender neutral changes in Subparagraph C(1); inserted "of the Rules Governing the Recording of Judicial Proceedings" in Subparagraph C(3); and added Subparagraph C(5).
For procedures for storing and making copies of audio recordings of judicial proceedings, see Rule 22-303 NMRA. For records of judicial proceedings, see Rule 22-206 NMRA. For minimum standards for audio recordings, see Rule 22-303 NMRA. For the definition of "record" in criminal proceedings, see Rule 5-111 NMRA. For the record on appeal in federal court appeals, see Fed. R. App. P. Rule 10. I. GENERAL CONSIDERATION. Appellant's duty to prepare record. - The primary burden of properly preparing the record on appeal is on the appellant. Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780. Clerk's obligation to transmit tapes does not alter appellant's burden. - The fact that it is now the obligation of the district court clerk to transmit the tapes to the court of appeals does not alter the general rule that the burden is on the appellant to insure that the court of appeals has a record adequate to review the issues. Berlint v. Bonn, 1985-NMCA-010, 102 N.M. 394, 696 P.2d 482. Accused generally responsible for record. - Accused is responsible to see that a record is kept of any supposed errors and that the same is certified so that the point he wants reviewed may be properly presented. State v. Walker, 1950-NMSC-052, 54 N.M. 302, 223 P.2d 943. Burden is on defendant to bring up a record sufficient for review of the issues he raises on appeal; if he does not, all inferences will be resolved in favor of the trial court's ruling. State v. Padilla, 1980-NMCA-141, 95 N.M. 86, 619 P.2d 190. It is the defendant's burden to provide a record sufficient to demonstrate reversible error in refusing self-defense instructions. State v. Gonzales, 1982-NMCA-043, 97 N.M. 607, 642 P.2d 210. And to provide necessary transcript. - The burden is on the appellant to provide the necessary appellate record of the transcript and exhibits. State v. Garcia, 1978-NMCA-109, 92 N.M. 730, 594 P.2d 1186, cert. denied, 92 N.M. 532, 591 P.2d 286; State v. Baca, 1979-NMCA-057, 92 N.M. 743, 594 P.2d 1199. Appellate court has authority, on own motion, to have exhibits sent to it for review when those exhibits have been introduced, and relied on, before the trial court. State v. Garcia, 1978-NMCA-109, 92 N.M. 730, 594 P.2d 1186, cert. denied, 92 N.M. 532, 591 P.2d 286 (1979). A failure to include the transcript of a motion hearing would normally preclude review. However, the appellate court may order records to consider the merits of a motion, where the issue is jurisdictional. State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066. Insufficient transcript. - Even though transcript was insufficient, supreme court still had jurisdiction of appeal. O'Neal v. Geo. E. Breece Lumber Co., 1933-NMSC-088, 38 N.M. 94, 28 P.2d 523. When problems with an unintelligible or missing portion of a transcript are not timely called to the attention of the proper court under Paragraphs C(4) and E, the appellate court may refuse to consider contentions relating to that portion of the transcript. State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs., 1990 -NMCA-032,110 N.M. 331, 795 P.2d 1023. If the transcript is inaccurate, counsel may object and the district court must resolve the objections. Thus, problems with the transcript can be caught and corrected (by a judge familiar with the proceedings) in a timely fashion before briefing time commences. State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs., 1990 -NMCA-032,110 N.M. 331, 795 P.2d 1023. Filing of too few copies not ground for dismissal. - Failure to file a sufficient number of copies of the transcript was not ground for dismissal of a writ of error. Farmers' Cotton Fin. Corp. v. Green, 1929-NMSC-054, 34 N.M. 206, 279 P. 562; Blanchard v. State ex rel. Wallace, 1924-NMSC-017, 29 N.M. 584, 224 P. 1047. Deposition never offered may not be used on appeal. - In a summary judgment hearing the trial court may properly consider only those depositions before it. Where a deposition is never offered to the trial court, it cannot be relied upon on appeal. Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974. Defendant may not be prejudiced by trial court's limitation of record, in light of the evidence and stipulations of the parties. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545. Review of propriety of instruction. - Where the appellate transcript shows the giving of an approved instruction, review of the propriety of giving the instruction will not be denied because the instruction is not physically included in the appellate record. Trujillo v. Baldonado, 1980-NMCA-184, 95 N.M. 321, 621 P.2d 1133. Omitted objections on file from previous appeals. - Where the original objections to a final account and report of the administration of an estate are not included in the transcript for an appeal, but are on file with the court from previous appeals, neither the parties nor the appellate court shall be prevented from relying on those objections. In re Will of Hamilton, 1981-NMSC-120, 97 N.M. 111, 637 P.2d 542. Party's motion to strike district judge's explanatory letter, not part of record supplied by district court clerk, from consideration on appeal was denied where letter was properly included at end of trial transcript made part of record and was useful to disposition of issues on appeal, even though party did not specifically refer to the letter in its citations to the transcript. Robison v. Campbell, 1984-NMCA-048, 101 N.M. 393, 683 P.2d 510, cert. denied, 101 N.M. 362, 683 P.2d 44. Inability to prepare transcript basis for new trial. - Where the defendant gives timely notice of appeal, but due to unexplained technical difficulties, the court reporter is unable to prepare an audible transcript of proceedings in the cause, the fault for the tapes' inaudibility cannot be assessed against the defendant, and where it is impossible to reconstruct a record of the proceedings because of the trial counsel's inability to recall the events at trial, to deny the defendant a new trial would be to deny him his right of appeal guaranteed by the New Mexico Constitution. State v. Moore, 1975-NMCA-042, 87 N.M. 412, 534 P.2d 1124. Contempt proceedings were deemed proper for violation of former Rule 208, N.M.R. App. P. (Crim.) (see now this rule). In re Avallone, 1978-NMSC-056, 91 N.M. 777, 581 P.2d 870. Dismissal upheld. - An appeal would be dismissed on a motion by the state for noncompliance with former Rule 208, N.M.R. App. P. (Crim.) (see now this rule) when an indigent defendant did not respond to the motion or appear at a hearing to show cause why the appeal should not be dismissed, where there was nothing showing that the defendant had sought an order for free process to meet the cost of the production of the transcript and no steps had been taken for the preparation of a transcript for use in the appeal. State v. Laran, 1977-NMCA-035, 90 N.M. 295, 562 P.2d 1149. Court must obtain transcript before deciding case. - Proper action of appellate court, when not receiving all of the transcript of proceedings from the lower court, is, prior to deciding the case, to obtain the transcript itself or to notify counsel to call to the district court clerk's attention the fact that some of the transcript was not received. Schneider, Inc. v. Shadbolt, 1985-NMSC-105, 103 N.M. 467, 709 P.2d 189. Taped statement included in transcript held part of record. - Appellate review would be easier if the trial court had filed a written statement of its reasons for alteration of a basic sentence, as part of the court file, but a taped statement preserved for review was part of the appellate record, because it was included in the transcript. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986. II. PROCEEDINGS NOT ON TAPE. Requires designation of portions of proceedings. - The first clause of the sentence in Paragraph C(1) of this rule, discussing designating portions of the proceedings, requires that the appellant must designate all portions of the proceedings bearing on the propositions that the appellant will be challenging, and the appellant cannot rely solely on the portions of the proceedings that favor its position. Jones v. Schoellkopf, 2005-NMCA-124, 138 N.M. 477, 122 P.3d 844. Cost of transcript. - Where plaintiff challenged the basis of the trial court's decision and specifically challenged findings of fact, defendants were properly proceeding in accordance with Paragraph C(1) of this rule to ask the trial court to require plaintiff to designate the entire transcript, and the trial court's ruling, requiring plaintiff to pay half the transcript, was within its authority because the trial court could not be certain whether the entire transcript was necessary and because the appellate court will determine who shall pay the cost of the transcript in any event. Jones v. Schoellkopf, 2005-NMCA-124, 138 N.M. 477, 122 P.3d 844. Typewritten transcript cannot show allegedly erroneous trial court mannerisms. - Where the transcript is typewritten, it does not show any alleged erroneous mannerisms of the trial court, and the appellate court cannot determine either whether the trial court has indulged in any such asserted mannerisms or whether counsel has made improper charges against the trial court. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485. III. FILING TRANSCRIPT. A. IN GENERAL. Failure to file transcript within time allowed was not fatal to jurisdiction of supreme court under former rules. Pankey v. Hot Springs Nat'l Bank, 1938-NMSC-067, 42 N.M. 674, 84 P.2d 649. Untimely transcript filing held not grounds for dismissal. - Where technical violations of procedural rules regarding the timely filing of the transcript are perpetrated by the defendant's attorney, not the defendant, there is no prejudice to the state in permitting the appeal, especially since the state itself has moved to have the case taken from the summary reversal calendar, and the probable incarceration of the defendant without an appellate court having considered the issues raised on appeal outweighs any prejudice to the state. Linam v. State, 1977-NMSC-033, 90 N.M. 302, 563 P.2d 96. Waiver. - By inaction, until after default was cured, a party waived the benefit of former rule limiting time within which printed transcripts and briefs were to be filed. Dailey v. Foster, 1912-NMSC-045, 17 N.M. 377, 128 P. 71. Default cured. - Where defendant did not move for affirmance of judgment for failure of plaintiff to file transcript on time until after filing thereof, default, if any, had already been cured. Garcia v. Universal Constructors, Inc., 1970-NMCA-081, 81 N.M. 703, 472 P.2d 668, cert. denied, 81 N.M. 721, 472 P.2d 984. Under former rules, motion to dismiss for failure to file a transcript in time, not made until after the appellant had cured the default, would be denied. Collins v. Unknown Heirs, 1921-NMSC-051, 27 N.M. 222, 199 P. 362; Abo Land Co. v. Dunlavy, 1921-NMSC-046, 27 N.M. 202, 199 P. 479. B. EXTENSION OF TIME. District judge has power to extend time to file transcript. Massengill v. City of Clovis, 1928-NMSC-024, 33 N.M. 318, 267 P. 70. District court retained jurisdiction to extend the time within which to file the transcript and bill of exceptions under former rule after the original return date therefor. New Jersey Zinc Co. v. Local 890 Int'l Mine, Mill & Smelter Workers, 1953-NMSC-087, 57 N.M. 617, 261 P.2d 648. Under former rules, district judge had jurisdiction to extend the time to perfect the record and file the transcript in the supreme court, although time for perfecting appeal had already elapsed when formal motion to extend was filed. National Mut. Sav. & Loan Ass'n v. McGhee, 1934-NMSC-058, 38 N.M. 442, 34 P.2d 1093. Deadline for filing requests for extension. - Requests for extensions of time should ordinarily be filed by the pertinent deadline. State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs., 1990 -NMCA-032, 110 N.M. 331, 795 P.2d 1023. Extension for good cause. - Extension could be granted under former rule only on a showing of good cause and diligence. Barelas Community Ditch Corp. v. City of Albuquerque, 1956-NMSC-057, 61 N.M. 222, 297 P.2d 1051. Failure to make timely filing of praecipe under former rules was significant only when the applicant or plaintiff in error desired an extension of time, as extension of time for settling, signing and sealing the bill of exceptions or case stated, or for filing the transcript of record, could be granted only on showing of good cause and diligence. Flinn v. Burrow, 1959-NMSC-083, 66 N.M. 210, 345 P.2d 418. Once it became apparent that the complete transcript was not going to be filed by its due date, counsel should have moved for an extension of time pursuant to Paragraph E and, if unable to obtain the reporter's affidavit stating the reasons for delay, should have moved the court to waive the affidavit requirement. State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs., 1990 -NMCA-032,110 N.M. 331, 795 P.2d 1023. Notice and hearing required for extension. - Appellee who has moved dismissal of appeal under former rules on ground of failure to make timely filing of the praecipe must be given notice and opportunity to be heard on request for extension of time for settling, signing and sealing a bill of exceptions or case stated, or for filing the transcript of record. Flinn v. Burrow, 1959-NMSC-083, 66 N.M. 210, 345 P.2d 418. Court abused discretion in failing to grant extension for filing of transcript in custody case involving welfare of two children and parental custody and visitation rights, where no appreciable prejudice to appellee was involved. Baker v. Baker, 1971-NMSC-119, 83 N.M. 290, 491 P.2d 507. Dismissal improper. - Where appellant was seeking an extension of time because of the failure of the court reporter to complete the transcript, it was error for the court to dismiss the appeal in view of the force of Rule 16(4) of former Supreme Court Rules, relating to dismissal of appeal on nonjurisdictional grounds only where ends of justice required or prejudice was shown, and the announced policy of the court to dispose of causes on the merits. Barelas Community Ditch Corp. v. City of Albuquerque, 1956-NMSC-057, 61 N.M. 222, 297 P.2d 1051. IV. CORRECTION OF RECORD ON APPEAL. Omission "by error or accident". - Omission of deposition which was not in existence at the time the transcript and record proper came to the appellate court was not omission by error or accident under Subdivision (f) of former Rule 8, N.M.R. App. P. (Civ.). Catalano v. Lewis, 1977-NMCA-016, 90 N.M. 215, 561 P.2d 488, cert. denied, 90 N.M. 254, 561 P.2d 1347. Plaintiff's motion to remand for correction of the record by inclusion of a deposition of defendant taken in a separate suit filed by defendant against plaintiff one month after the summary judgment was entered came too late to merit consideration, and did not fall within the meaning of Subdivision (f) of former Rule 8, N.M.R. App. P. (Civ.). Catalano v. Lewis, 1977-NMCA-016, 90 N.M. 215, 561 P.2d 488, cert. denied, 90 N.M. 254, 561 P.2d 1347. Affidavit properly before court. - An affidavit presented on the day of a summary judgment hearing is properly before the district court and, when subsequently made a part of the corrected record on appeal, is properly before the appellate court. Hunick v. Orona, 1983-NMSC-009, 99 N.M. 306, 657 P.2d 633. V. SUPPLEMENTAL TRANSCRIPTS. Supplemental transcript filed without permission of the court is not considered. State v. Robertson, 1977-NMCA-044, 90 N.M. 382, 563 P.2d 1175, cert. denied, 90 N.M. 637, 567 P.2d 486. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 492 et seq. Determination of indigency of accused entitling him to transcript or similar record for purposes of appeal, 66 A.L.R.3d 954. Failure or refusal of state court judge to have record made of bench conference with counsel in criminal proceeding, 31 A.L.R.5th 704. 4 C.J.S. Appeal and Error § 506 et seq.