A.Service; when required. Except as otherwise provided in these rules, every written order; every pleading subsequent to the initial indictment, information, or complaint; every paper relating to discovery required to be served upon a party, unless the court otherwise orders; every written motion other than one which may be heard ex parte; and every written notice, appearance, demand, designation of record on appeal, and similar paper shall be served upon each of the parties.B.Service; how made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party, or by mailing a copy to the attorney or party at the attorney's or party's last known address. Service by mail is complete upon mailing.C.Definitions. As used in this rule:(1) "Delivering a copy" means: (a) handing it to the attorney or to the party;(b) sending a copy by facsimile or electronic transmission when permitted by Rule 5-103.1 NMRA or Rule 5-103.2 NMRA;(c) leaving it at the attorney's or party's office with a clerk or other person in charge thereof, or, if there is no one in charge, leaving it in a conspicuous place in the office;(d) if the attorney's or party's office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing there; or(e) leaving it at a location designated by the court for serving papers on attorneys, if the following requirements are met:(i) the court, in its discretion, chooses to provide such a location; and(ii) service by this method has been authorized by the attorney, or by the attorney's firm, organization, or agency on behalf of the attorney. (2) "Mailing a copy" means sending a copy by first class mail with proper postage.D.Filing by a party; certificate of service. All papers after the complaint, indictment, or information required to be served upon a party, together with a certificate of service indicating the date and method of service, shall be filed with the court within a reasonable time after service. E.Filing of papers and pleadings by a party represented by counsel. The clerk shall not file a pleading or paper of a defendant who is represented by an attorney, unless the paper is a request to dismiss counsel or to appear pro se. If the paper is a request to dismiss counsel or to appear pro se, the clerk shall serve a copy of the request on all counsel of record in the proceedings. Except for a request to dismiss counsel or to appear pro se, all documents or items received by the court from a defendant who is represented by an attorney shall be forwarded, without filing, to the defendant's attorney of record. Nothing in this paragraph shall restrict a defendant's right to file pro se post-conviction motions under Rule 5-802 NMRA.F.Filing with the court defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. "Filing" shall include filing a facsimile copy or filing an electronic copy as may be permitted under Rule 5-103.1 NMRA or 5-103.2 NMRA. If a party has filed a paper using electronic or facsimile transmission, that party shall not subsequently submit a duplicate paper copy to the court. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.G.Proof of service. Except as otherwise provided in these rules or by order of court, proof of service shall be made by the certificate of service indicating the date and method of service signed by an attorney of record, or if made by any other person, by the affidavit of such person. Such certificate or affidavit shall be filed with the clerk or endorsed on the pleading, motion, or other paper required to be served.H.Filing and service by the court. Unless otherwise ordered by the court, the court shall serve all written court orders and notices of hearing on the parties. For papers served by the court, the certificate of service need not indicate the method of service. For purposes of Rule 5-104(C) NMRA, papers served by the court shall be deemed served by mail, regardless of the actual manner of service, unless the court's certificate of service unambiguously states otherwise. The court may, in its discretion, serve papers in accordance with the method described in Subparagraph (C)(1)(e) of this rule.I.Filing and service by an inmate. The following provisions apply to documents filed and served by an inmate confined to an institution: (1) If an institution has a system designed for legal mail, the inmate shall use that internal mail system to receive the benefit of this rule. (2) The document is timely filed if deposited in the institution's internal mail system within the time permitted for filing.(3) Whenever service of a document on a party is permitted by mail, the document is deemed mailed when deposited in the institution's internal mail system addressed to the parties on whom the document is served.(4) The date of filing or mailing may be shown by a written statement, made under penalty of perjury, showing the date when the document was deposited in the institution's internal mail system.(5) A written statement under Subparagraph (4) of this paragraph establishes a presumption that the document was filed or mailed on the date indicated in the written statement. The presumption may be rebutted by documentary or other evidence.(6) Whenever an act must be done within a prescribed period after a document has been filed or served under this paragraph, that period shall begin to run on the date the document is received by the party. N.M. R. Crim. P. Dist. Ct. 5-103
As amended, effective December 1, 1998; as amended by Supreme Court Order no. 05-8300-013, effective September 15, 2005; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.Committee commentary. - Paragraphs A, B, C, and D of this rule are substantially the same as Paragraphs A, B, C, and E of Rule 1-005 NMRA. The exceptions from filing papers with the court found in Paragraph C of Rule 1-005 have been omitted from this rule.
Paragraph I governs the filing and service of documents by an inmate confined to an institution. As explained in Paragraph E of this rule, a court generally will not consider pro se pleadings filed by an inmate who is represented by counsel. See, e.g., State v. Martinez, 1981-NMSC-016, ¶ 3, 95 N.M. 421, 622 P.2d 1041 (providing that no constitutional right permits a defendant to act as co-counsel in conjunction with the defendant's appointed counsel); State v. Boyer, 1985-NMCA-029, ¶ 15, 103 N.M. 655, 712 P.2d 1 (explaining that "once a defendant has sought and been provided the assistance of appellate counsel, that choice binds the defendant, absent unusual circumstances" (citation omitted)).
[Amended October 15, 1998; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, authorized the court to designate a place of service on attorneys; provided for the filing and service of orders and notices by the court; provided for the filing and service of documents by an inmate; in Paragraph A, in the first sentence, "these rules, every", added "written", after "written order", deleted "required by its terms to be served", and after "information, or complaint", deleted "every order not entered in open court"; in Paragraph B, in the second sentence, after "last known address", deleted "or, if no address is known, by leaving it with the clerk of the court", in Paragraph C (1), at the beginning of the sentence, changed "delivery of" to "Delivering"; in Paragraph C (1)(c), after "in a conspicuous place", deleted "therein" and added "in the office"; deleted former Paragraph C (1)(e) which provided that delivery included depositing a copy in an outgoing mail container maintained in the usual and ordinary course of business of the serving attorney, and added the current language; in Paragraph D, in the title, after "Filing", added "by a party"; in Paragraph F, in the first sentence, after "The filing of", deleted "pleadings and other", deleted the former third sentence, which provided that a paper filed by electronic means constituted a written paper, added the current third sentence; and added Paragraphs H and I. The 2005 amendment, effective September 15, 2005, conformed this rule with the 2004 amendments of Rule 1-005 NMRA of the Rules of Civil Procedure for the District Courts. The 2005 amendment substituted "a copy" for "it" in the second sentence of Paragraph B, designated the language therein as Subparagraph (1), deleted "within this rule" preceding "means" in the introductory language of that subparagraph and added Subparagraph (2), redesignated former designated the Paragraph C as present Paragraph D and inserted "indicating the date and method of service", added Paragraph E relating to filing of papers and pleadings by a party represented by counsel, redesignated former Paragraphs D and E as Paragraphs F and G and inserted "indicating the date and method of service" in redesignated Paragraph G. The 1998 amendment, effective December 1, 1998, inserted "pleadings and other" in the catchline; rewrote Paragraphs A through C to conform to Paragraphs A through C of Rule 1-005 NMRA; in Paragraph D, substituted "the judge" for "him" and for "he", respectively, inserted "forthwith" in the first sentence, and added the last three sentences; and deleted former Paragraph F, relating to definitions of "move" and "made". Compiler's notes. - This rule is similar to Rule 49 of the Federal Rules of Criminal Procedure.
For prosecution by filing of information, see Rule 5-201 NMRA. For defects or errors of indictment, see Rule 5-204 NMRA. For civil rule governing service of pleadings and papers, see Rule 1-005 NMRA. For magistrate court rules governing service of pleadings and papers, see Rules 2-203 NMRA and 6-209 NMRA. For metropolitan court rules governing service of pleadings and papers, see Rules 3-203 NMRA and 7-209 NMRA. For municipal court rule governing service of pleadings and papers, see Rule 8-209 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 61A Am. Jur. 2d Pleading §§ 350 to 352. 71 C.J.S. Pleading §§ 407 to 415.