N.M. R. Crim. P. Dist. Ct. 5-402

As amended through February 27, 2024

Rule 5-402 - Release; during trial, pending sentence, motion for new trial and appeal

A.Release during trial. A defendant released pending trial under Rule 5-401 NMRA shall continue on release under the same terms and conditions as previously imposed, unless the court determines that other terms and conditions or termination of release are necessary to ensure the defendant's presence during the trial or to ensure that the defendant's conduct will not obstruct the orderly administration of justice.

B.Release pending sentencing. A defendant released pending or during trial may continue on release pending the imposition of sentence under the same terms and conditions as previously imposed, unless the surety has been released or the court has determined that other terms and conditions or termination of release are necessary to ensure

(1) that the defendant will not flee the jurisdiction of the court;

(2) that the defendant's conduct will not obstruct the orderly administration of justice; or

(3) that the defendant does not pose a danger to any other person or to the community.

C.Release after sentencing. After imposition of a judgment and sentence, the court, on motion of the defendant, may establish conditions of release pending appeal or a motion for new trial. The court may utilize the criteria listed in Rule 5-401(C) NMRA, and may also consider the fact of defendant's conviction and the length of sentence imposed. The defendant shall be detained unless the district court after a hearing determines that the defendant is not likely to flee and does not pose a danger to the safety of any other person or the community if released. In the event the court requires a secured bond in the same amount as that established for release pending trial, the bond previously furnished shall continue pending appeal or disposition of a motion for a new trial, unless the surety has been discharged by order of the court. Nothing in this rule shall be construed as prohibiting the judge from increasing the amount of bond on appeal.

D.Revocation of release or modification of conditions of release pending appeal. The taking of an appeal does not deprive the district court of jurisdiction under Rule 5-403 NMRA, and the state may file a motion in the district court for revocation of release or modification of conditions of release on appeal.

N.M. R. Crim. P. Dist. Ct. 5-402

As amended, effective October 15, 1986; as amended by Supreme Court Order No. 14-8300-017, effective for all cases pending or filed on or after December 31, 2014; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017.

Committee commentary. - Paragraph A of this rule is substantially similar to Rule 46(b) of the Federal Rules of Criminal Procedure. Under most circumstances, the defendant will have had conditions of release set by the magistrate at the initial appearance. This rule makes it clear that when the case is transferred to the district court directly after a preliminary hearing or indirectly by the filing of an indictment, the district court need not set new conditions of release. However, the rule also allows the district court to set other conditions at the time of trial under certain circumstances.

Paragraph C of this rule was added in 1975. The former rule provided that release should automatically continue pending appeal under the same terms and conditions previously imposed, unless the court determined that other conditions were necessary. The amended rule requires a motion for release following the imposition of sentence and specifies the criteria that may be considered in setting conditions of release for an appeal or if a motion for a new trial is pending. The amended rule preserves the original intent of the rule by allowing a defendant to proceed without a new bond pending appeal if the surety has not been discharged and the court does not set a higher bond. In addition, Paragraph C of this rule incorporates the provisions of former Subdivision (d) of this rule, requiring a bond only for the additional amount if the court decides to increase the amount of the bond.

The amended rule also requires a new determination of conditions of release for a new trial. The conditions of release for an appeal might well be different than the conditions imposed for a new trial. Therefore, the district court, under Rule 5-401 NMRA, may set new conditions of release when a new trial is granted.

The rule was also amended to provide for revocation or modification of conditions of release while the case is on appeal. Paragraph D of this rule allows the state to seek revocation or modification under Rule 5-403 NMRA. See commentary to Rule 5-403 NMRA.

[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, clarified certain provisions related to release after sentencing and revocation of release, made technical changes, and revised the committee commentary; throughout the rule, replaced each occurrence of "person" and "his" with "defendant" or "defendant's", and replaced "assure" with "ensure"; in Paragraph C, after "criteria listed in", deleted "Paragraph C of", after "Rule 5-401", added "(C)", and after "court requires a", deleted "bail" and added "secured"; and in Paragraph D, after "revocation of", deleted "bail" and added "release" in two places. The 2014 amendment, approved by Supreme Court Order No. 14-8300-017, effective December 31, 2014, in Paragraph C, changed the reference from "Paragraph B", to "Paragraph C". Defendant is not automatically entitled to release under same terms and conditions that were previously imposed pending or during trial after he has been adjudicated guilty but not yet sentenced. State v. Valles, 2004-NMCA-118, 136 N.M. 429, 99 P.3d 1164. Release of surety. - By its terms, this rule recognizes that a surety may be released upon a finding of guilt. State v. Valles, 2004-NMCA-118, 136 N.M. 429, 99 P.3d 1164. Release pending motion for new trial. - An individual has a qualified right to release pending a motion for a new trial, even after appellate affirmance of a conviction. Such a right, however, can be invoked only by a timely motion for a new trial, and by a motion for release pending a motion for a new trial duly filed and served in the manner required by this rule. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861. Jurisdiction to revoke appeal bond. - Section 31-11-1C NMSA 1978 denied an appeal bond unless and until the court had a hearing and made specific findings; therefore, Paragraph C of this rule allowed the district court to establish conditions of release pending appeal or a motion for a new trial. State v. Rivera, 2003-NMCA-059, 133 N.M. 571, 66 P.3d 344, rev'd on other grounds, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 775 to 778, 780 to 784. Bail: duration of surety's liability on posttrial bail bond, 32 A.L.R.4th 575. 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. 22A C.J.S. Criminal Law § 419 et seq.