N.M. R. Crim. P. Dist. Ct. 5-405

As amended through December 15, 2022
Rule 5-405 - Appeal from orders regarding release or detention
A.Right of appeal. A party may appeal an order regarding release or detention as provided by Article II, Section 13 of the New Mexico Constitution, Section 39-3-3(A)(2) NMSA 1978, or as otherwise provided by law. In accordance with the Rules of Appellate Procedure, an appeal may be filed in the Supreme Court or Court of Appeals, as jurisdiction may be vested by law, under the following circumstances.
(1)Order setting conditions of release. After a hearing by the district court under Rule 5-401(H) or (K) NMRA, the defendant may appeal if
(a) the defendant is detained or continues to be detained because of an inability to post a secured bond or meet a condition of release; or
(b) the defendant is subject to a condition of release that requires the defendant to return to custody for specified hours following release for employment, schooling, or other limited purposes.
(2)Order revoking release. After a hearing by the district court under Rule 5-403 NMRA, the defendant may appeal if the defendant is subject to an order revoking release.
(3)Order granting or denying motion for pretrial detention. After a hearing by the district court under Rule 5-409 NMRA,
(a) the defendant may appeal if the district court has granted the prosecutor's motion for pretrial detention; or
(b) the state may appeal if the district court has denied the prosecutor's motion for pretrial detention.
B.Stay of proceedings. An appeal under this rule does not stay proceedings in the district court.

N.M. R. Crim. P. Dist. Ct. 5-405

As amended, effective September 1, 1990; March 1, 1995; as amended by Supreme Court Order No. 13-8300-046, effective for all cases pending or filed on or after December 31, 2013; 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. - This rule was amended in 2017 in response to the 2016 amendment to Article II, Section 13 of the New Mexico Constitution. 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.

[As amended by Supreme Court Order No. 13-8300-046, effective for all cases pending or filed on or after December 31, 2013; 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 the procedures for appeals from orders regarding release or detention to conform with amendments to Article II, Section 13 of the New Mexico Constitution; in the heading, added "or detention"; in Paragraph A, added the first two sentences and redesignated the former introductory clause as Subparagraph A(1) and former Subparagraphs A(1) and A(2) as Subparagraphs A(1)(a) and A(1)(b), respectively, in Subparagraph A(1), added the heading, deleted "If", after "district court", deleted "pursuant to Paragraph F or G of" and added "under", after "Rule 5-401", added "(H) or (K)", and after "NMRA", added "the defendant may appeal if", in Subparagraph A(1)(a), after "detained because of", deleted "a failure to" and added "an inability to post a secured bond or", and after "meet", deleted "a condition imposed; or" and added "a condition of release; or", in Subparagraph A(1)(b), after the first occurrence of "the", deleted "requirement" and added "defendant is subject to a condition of release that requires the defendant", after "return to custody", deleted "after" and added "for", and after "specified hours", deleted "is continued, the defendant may appeal such order to the Supreme Court or Court of Appeals, as jurisdiction may be vested by law, in accordance with the Rules of Appellate Procedure" and added "following release for employment, schooling, or other limited purposes", and added Subparagraphs A(2) and A(3); and in Paragraph B, after "An appeal", deleted "pursuant to" and added "under". The 2013 amendment, approved by Supreme Court Order No. 13-8300-046, effective December 31, 2013, changed the references to paragraphs of Rule 5-401 NMRA that provided for hearings to determine if bail should be denied or to review conditions of release; and in Subparagraph (1) of Paragraph A, after "Paragraph", deleted "E or" and after "F", added "or G". The 1995 amendment, effective March 1, 1995, deleted former Paragraph B, which read: "Habeas corpus. A defendant must exhaust his remedy under this rule before applying for a writ of habeas corpus", and redesignated former Paragraph C as Paragraph B.

For procedure for appeal under this rule, see Rule 12-204 NMRA. Supreme Court's exclusive jurisdiction. - The 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. Review of motion to reduce bond is unwarranted on appeal from conviction because the trial court's ruling on bond has no relation to the merits of the appeal. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. Law reviews. - For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).