N.M. R. Crim. P. Dist. Ct. 5-702
N.M. R. Crim. P. Dist. Ct. 5-702
Committee commentary. - The original version of this rule was abrogated as a part of the adoption of the Rules of Appellate Procedure in 1975. Paragraph A of Rule 12-201 incorporates the appeal procedure formerly contained in this rule.
The new rule is derived from Rule 32(a)(2) of the Federal Rules of Criminal Procedure. This rule does not require the court to advise a defendant pleading guilty or no contest under Rule 5-503 of his right to appeal. See State v. Chavez, 80 N.M. 560, 458 P.2d 812 (Ct. App. 1969). See Federal Rules 32(a)(2) and commentary. 62 F.R.D. 271, 320, 322 (1974). Nevertheless, an appeal from a plea of guilty is permissible. See e.g., State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct. App. 1973).
This rule was revised in 1983 to correct the growing number of petitions for postconviction relief arising from defendants who claim they were never advised of their right to appeal. Requiring both the defendant to certify that the defendant was, in fact, advised of the right to appeal, and counsel to witness the advice given, will preclude this problem.
ANNOTATIONS Appeal is matter of right. - An appeal from a judgment and sentence in a criminal case is a matter of right. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005 (decided under former law). Upon conviction defendant has an undoubted right to appeal his sentence. Rodriguez v. District Court, 1971-NMSC-101, 83 N.M. 200, 490 P.2d 458. Rule applied to show-cause proceeding involving indirect criminal contempt. - Since a hearing on an order to show cause why respondents should not be held in contempt was in effect a trial on a plea of not guilty to a contempt charge, and since the respondents were held in contempt, a felony, they should have been informed of their rights under Subdivision (a) (see now Paragraph A). State v. Wisniewski, 1985-NMSC-079, 103 N.M. 430, 708 P.2d 1031. Former provisions applied to show-cause proceeding involving indirect criminal contempt. - Subdivision (a) (see now Paragraph A), which tolled the time for taking an appeal where the court had failed to advise a defendant who had pled not guilty of his right to process an appeal at state expense, applied to a proceeding to show cause why the respondents, police officers, should not be held in indirect criminal contempt for their failure to disclose certain evidence to the defendant. State v. Wisniewski, 1985-NMSC-079, 103 N.M. 430, 708 P.2d 1031 (decided under former law). Refusal of counsel to appeal. - Court-appointed counsel has a duty to represent his client until relieved and if a defendant requests counsel to appeal and counsel refuses to do so, this is state action entitling a defendant to post-conviction relief. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171 (decided under former law). If a defendant in a criminal action requests court-appointed counsel to appeal his conviction, and counsel refuses to do so, such a refusal is state action entitling the defendant to post-conviction relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005 (decided under former law). That counsel did not advise defendant he could appeal as an indigent provides no basis for relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005 (decided under former law). Hearing to determine right to court-appointed counsel for appeal. - Where the trial court failed to determine whether defendant was in fact indigent and entitled to court-appointed counsel for the appeal, defendant is to be given a hearing to determine whether, at the time of his notice of appeal, he in fact was indigent and if indigent, he is entitled to post-conviction relief and counsel is to be appointed to perfect the direct appeal. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005 (decided under former law). Defendant's letter stating he can't pay costs is sufficient claim of indigency. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. Contempt proceeding which is at least partially criminal in nature is a "trial" within the meaning of this rule. State v. Echols, 1983-NMCA-025, 99 N.M. 517, 660 P.2d 607. Ineffective assistance of counsel per se. - Failure to file a timely notice of appeal or an affidavit of waiver constitutes ineffective assistance of counsel per se, and the presumption thereof is conclusive rather than rebuttable, in accordance with the requirements of the Fifth and Sixth Amendments of the U.S. Constitution. State v. Duran, 1986-NMCA-125, 105 N.M. 231, 731 P.2d 374. Presumption of ineffective assistance of counsel. - The conclusive presumption of ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105 N.M. 231, 731 P.2d 374 applies to appeals from a de novo trial in district court following a conviction in magistrate or municipal court. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006 and cert. denied, 2014-NMCERT-005. Where defendant was convicted of aggravated DWI by a jury in magistrate court; defendant timely appealed the conviction to district court and filed a demand for a jury trial; the district court denied defendant's request for a jury trial; at a bench trial, the district court found defendant guilty of DWI; and defendant filed an untimely notice of appeal with the district court, defense counsel was conclusively presumed to be ineffective. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006 and cert. denied, 2014-NMCERT-005. Waiver of the right to appeal cannot be inferred from mere inaction. - Where defendant appealed from a stipulated corrected sentence that was entered four years after the original judgment and sentence, after which defendant filed neither an appeal nor an affidavit of waiver, the presumption of ineffective assistance of counsel for failure to file a timely notice of appeal still applied, and the passage of four years after entry of the original judgment and sentence does not constitute a waiver of defendant's right of appeal. State v. Dorais, 2016-NMCA-049, cert. denied. Trial counsel may be held in contempt for failing to take a timely appeal, and also for making inaccurate factual recitations in the docketing statement filed. State v. Fulton, 1983-NMCA-010, 99 N.M. 348, 657 P.2d 1197. Am. Jur. 2d, A.L.R. and C.J.S. references. - Validity and effect of criminal defendant's express waiver of right to appeal as part of negotiated plea agreement, 89 A.L.R.3d 864. 24 C.J.S. Criminal Law §§ 1680, 1681.