N.M. R. Crim. P. Dist. Ct. 5-406

As amended through August 23, 2024

Rule 5-406 - Bonds; exoneration; forfeiture

A.Exoneration of bond. Unless otherwise ordered for good cause, a bond shall be automatically exonerated only under the following circumstances:

(1) twelve (12) months after the posting of the bond if the crime is a felony and no charges are pending in the district court;

(2) six (6) months after the posting of the bond if the crime is a misdemeanor or petty misdemeanor and no charges are pending;

(3) at any time prior to entry of a judgment of default on the bond if the district attorney approves;

(4) upon surrender of the defendant to the court by an unpaid surety;

(5) upon dismissal of the case without prejudice, unless the case involves a paid surety; or

(6) upon acquittal, conviction, or dismissal of the case with prejudice.

B.Surrender of the defendant by a paid surety. If the paid surety arrests the defendant under Section 31-3-4 NMSA 1978 prior to the entry of a judgment of default on the bond, the court may absolve the paid surety of responsibility to pay all or part of the bond.

C.Forfeiture. If the defendant has been released upon the execution of an unsecured appearance bond, percentage bond, property bond, cash bond, or surety bond under Rule 5-401 NMRA, and the defendant fails to appear in court as required, the court may declare a forfeiture of the bond. If a forfeiture has been declared, the court shall hold a hearing on the forfeiture prior to entering a judgment of default on the bond. A hearing on the forfeiture shall be held thirty (30) or more days after service of the Notice of Forfeiture and Hearing on the defendant, at the defendant's last known address, and on the surety, if any, in the manner provided by Rule 5-407 NMRA.

D.Setting aside forfeiture. The court may direct that a forfeiture be set aside in whole or in part upon a showing of good cause why the defendant did not appear as required by the bond or if the defendant is surrendered by a surety, if any, into custody prior to the entry of a judgment of default on the bond. Notwithstanding any provision of law, no other refund of the bond shall be allowed.

E.Judgment of default; execution. If, after a hearing, the forfeiture is not set aside, the court shall enter a judgment of default on the bond. If the judgment of default is not paid within ten (10) days after it is filed and served on the defendant, at the defendant's last known address, and on the surety, if any, in the manner provided by Rule 5-407 NMRA, execution may issue thereon.

F.Appeal. Any aggrieved person may appeal from a judgment or order entered under this rule as authorized by law for appeals in civil actions in accordance with the Rules of Appellate Procedure. An appeal of a judgment or order entered under this rule does not stay the underlying criminal proceedings.

N.M. R. Crim. P. Dist. Ct. 5-406

Adopted, effective October 1, 1987; as amended by Supreme Court Order No. 10-8300-033, effective December 10, 2010; 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. - Under Paragraph A, a bond is automatically exonerated upon a finding of guilty or not guilty. See NMSA 1978, § 31-3-10 ("All recognizances secured by the execution of a bail bond shall be null and void upon the finding that the accused person is guilty, and all bond liability shall thereupon terminate.").

Under Paragraph B and NMSA 1978, Section 31-3-4, if a paid surety wants to be discharged from the obligation of its bond, the surety may arrest the defendant and deliver the defendant to the county sheriff. Section 31-3-4 provides that a "paid surety may be released from the obligation of its bond only by an order of the court" and sets forth the circumstances under which the "court shall order the discharge of a paid surety."

Under Paragraph C, the court may declare a forfeiture of any secured or unsecured bond if the defendant fails to appear in court as required. See NMSA 1978, § 31-3-2 (failure to appear; forfeiture of bail bonds); see also State v. Romero, 2006-NMCA-126, ¶ 12, 140 N.M. 524, 143 P.3d 763 (holding that the court may not declare a forfeiture of bail for violations of conditions of release unrelated to appearance before the court), aff'd, 2007-NMSC-030, 141 N.M. 733, 160 P.3d 914.

[Adopted 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, revised the circumstances under which a bond is automatically exonerated, clarified the provision relating to the discharge of a paid surety's obligation to pay all or part of the bond, clarified the circumstances under which the court may declare a forfeiture of the bond, and added the committee commentary; in the rule heading, deleted "Bail"; in Paragraph A, in the introductory clause, after "shall", deleted "only", and after "exonerated", added "only under the following circumstances", in Subparagraphs A(1) and (2), deleted "after", after "months", added "after the posting of the bond", and after "no charges", deleted "have been filed" and added "are pending", added Subparagraphs A(5) and A(6); in Paragraph B, in the heading, deleted "an offender" and added "the defendant", deleted "A person who is released upon execution of a bail bond by a paid surety may be arrested by the paid surety if the court has revoked the defendant's conditions of release pursuant to Rule 5-403 NMRA or if the court has declared a forfeiture of the bond pursuant to the provisions of this rule.", after the next occurrence of "paid surety", deleted "delivers" and added "arrests", and after the next occurrence of "defendant", deleted "to the court" and added "under Section 31-3-4 NMSA 1978"; in Paragraph C, deleted "If there is a breach of condition of a bond," and added "If the defendant has been released upon the execution of an unsecured appearance bond, percentage bond, property bond, cash bond, or surety bond under Rule 5-401 NMRA, and the defendant fails to appear in court as required", after "forfeiture of the", deleted "bail" and added "bond", after "Notice of Forfeiture and", deleted "Order to Show Cause" and added "Hearing", and after "on the", deleted "clerk of the court" and added "defendant, at the defendant's last known address, and on the surety, if any"; in Paragraph D, after "surrendered by", deleted "the" and added "a", after "surety", added "if any", and after "refund of the", deleted "bail"; and in Paragraph E, in the heading and in two occurrences in the paragraph, changed "default judgment" to "judgment of default", after "not set aside", added "the court shall enter", after "bond", deleted "shall be entered by the court", after "served on", added "the defendant, at the defendant's last known address, and on", and after "surety", added "if any". The 2010 amendment, approved by Supreme Court Order No. 10-8300-033, effective December 10, 2010, in Paragraph B, after "court may absolve the", deleted "bondsman" and added "paid surety"; and added Paragraph F. Proper forfeiture of bond. - Where defendant was charged with the felony offense of driving while under the influence of intoxicating liquor, released on bail by the magistrate court in the amount of $5,000 subject to certain conditions, fled to Arkansas after his initial bond hearing, and where appellant bond company, over a year later, took defendant into custody in Arkansas and returned him to New Mexico, the district court did not err in affirming the forfeiture of the bond by the magistrate court where the evidence established that appellant did not take any action in Arkansas prior to the forfeiture hearing in the magistrate court and did not appear at the forfeiture hearing to show "good cause" why the defendant failed to appear at his preliminary hearing, that defendant was not in custody in Arkansas, and that Arkansas did not thwart the efforts of appellant to apprehend defendant; appellant failed to sustain its burden of showing an impediment to defendant's appearance or that defendant was taken into custody prior to the entry of the magistrate court judgment. State v. Naegle, 2017-NMCA-017. Am. Jur. 2d, A.L.R. and C.J.S. references. - Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.