N.M. R. Crim. P. Magist. Ct. 6-201

As amended through February 27, 2024

Rule 6-201 - Commencement of action

A.How commenced. A criminal action is commenced by filing one of the following with the court:

(1) a complaint consisting of a signed, sworn written statement containing the facts, the common name of the offense charged, and where applicable, a specific section number of the New Mexico Statutes Annotated, 1978 Compilation, that contains the offense. A separate complaint shall be filed for each defendant;

(2) a traffic citation issued and signed by a state or local traffic enforcement officer under Section 66-8-130 NMSA 1978;

(3) a citation issued and signed by an official authorized by law that contains the name and address of the cited person, the specific offense charged, a citation to the specific section of law violated, and the time and place to appear. Unless the person requests an earlier date, the time specified in the citation shall be at least three (3) days after issuance of the citation; or

(4) an order finding a person to be in direct criminal contempt.

A copy of every citation issued shall be delivered to the person cited, and the original shall be filed with the magistrate court within seven (7) days of the issuance of the citation or, in any event, no later than one (1) day prior to the date cited for the defendant to appear. Any citation that sets an appearance date and is untimely filed may be dismissed with or without prejudice by the court on its own motion. All complaints and citations shall be signed, as defined in Rule 6-210(J) NMRA, and the magistrate court shall not accept for filing any unsigned complaint or citation. In the event that an unsigned complaint or citation commences an action, the case shall be dismissed without prejudice.

B.Jurisdiction. Magistrate judges have jurisdiction in all cases as may be provided by law.

C.Where commenced. Unless otherwise provided by law, the action must be commenced in the magistrate district where the crime is alleged to have been committed.

D.Arrest without a warrant; criminal complaint. In all criminal cases, including cases that are not within magistrate court trial jurisdiction, if the defendant is arrested without a warrant, a criminal complaint shall be prepared and a copy given to the defendant prior to transferring the defendant to the custody of the detention facility. If the defendant is not provided a copy of the criminal complaint upon transfer to a detention facility, without just cause or sufficient reason, the complaint may be dismissed without prejudice or the defendant may be released from custody and the court is open. If the defendant is in custody, the complaint shall be filed immediately with the magistrate court. If the court is not open and the defendant remains in custody, the complaint shall be filed the next business day of the court. If the defendant is not in custody, the complaint shall be filed with the court as soon as practicable.

E.Name of defendant. In every complaint or citation the name of the defendant, if known, shall be stated. A defendant whose name is not known may be described by any name or description by which the defendant can be identified with reasonable certainty.

N.M. R. Crim. P. Magist. Ct. 6-201

As amended, effective 9/1/1990;11/1/1991;5/1/1997;9/15/1997; as amended by Supreme Court Order No. 08-8300-044, effective 12/31/2008; as amended by Supreme Court Order No. 16-8300-007, effective for all cases pending or filed on or after12/31/2016; as amended by Supreme Court Order No. 20-8300-008, effective for all cases pending or filed on or after 12/31/2020;as amended by Supreme Court Order No. 21-8300-022, effective for all cases filed on or after 12/31/2021.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-007, effective December 31, 2016, provided that all complaints and citations commencing an action in the magistrate courts must be signed, that the magistrate court shall not accept for filing any unsigned complaint or citation and that any case commenced by an unsigned complaint or citation shall be dismissed without prejudice; in Paragraph (A), in the introductory sentence, after "commenced by filing", added "one of the following"; in Subparagraph (A)(1), after "consisting of a", added "signed", after "sworn", added "written", after "the facts", added "the", after "section number of", added "the", and after "Compilation", deleted "which" and added "that"; in Subparagraph (A)(2), after "citation issued", added "and signed", and after "officer", deleted "pursuant to" and added "under"; in Subparagraph (A)(3), after "citation issued", added "and signed", and after "issuance of the citation", added "or"; deleted Subparagraph (A)(4) and redesignated former Subparagraph (A)(5) as Subparagraph (A)(4); in Subparagraph (A)(4), after "in direct", added "criminal", and after Subparagraph (A)(4), added the last two sentences of the undesignated paragraph; in Paragraph (B), changed "Magistrates" to "Magistrate judges"; and in Paragraph (D), after "including cases", deleted "which" and added "that". The 2008 amendment, approved by Supreme Court Order No. 08-8300-044, effective December 31, 2008, in Paragraph A, added Subparagraphs (4) and (5). The second 1997 amendment, effective September 15, 1997, added "A separate complaint shall be filed for each defendant" at the end of Subparagraph A(1). The first 1997 amendment, effective May 1, 1997, rewrote Paragraph (3) of Subsection A which read "a criminal citation complying with the provisions of Section 31-1-6 NMSA". The 1991 amendment, effective for cases filed in the magistrate courts on or after November 1, 1991, in Paragraph D, rewrote the second sentence, which formerly read "The complaint shall at that time be filed with the magistrate court", inserted "and the defendant remains in custody" in the third sentence, and added the last sentence. The 1990 amendment, effective for cases filed in the magistrate courts on or after September 1, 1990, in Paragraph A, substituted "state or local traffic enforcement officer pursuant to Section 66-8-130 NMSA 1978; or" for "full-time, salaried police officer, if permitted by law." at the end of Subparagraph (2) and added Subparagraph (3) and the last sentence of the paragraph; rewrote Paragraph D; and added Paragraph E.

For criminal complaint form, see Rules 9-201 and 9-202 NMRA. I. GENERAL CONSIDERATION. Unavailability of magistrate not basis for discharge. - The rule does not provide for the arrested person to be discharged if a magistrate is not available. Perea v. Stout, 1980-NMCA-077, 94 N.M. 595, 613 P.2d 1034, cert. denied, 449 U.S. 1035, 101 S. Ct. 610, 66 L. Ed. 2d 496 (1980). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law § 410. Necessity of proving venue or territorial jurisdiction of criminal offense beyond reasonable doubt, 67 A.L.R.3d 988. 22 C.J.S. Criminal Law § 324 et seq. II. HOW COMMENCED. Complaint commences prosecution despite later indictment. - Charges initiated by a complaint in a magistrate court should be considered as continued by a later indictment, and, for purposes of the statute of limitations, the prosecution should be considered as commenced by the filing of the complaint. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089. Filing of complaint tolls limitation period. - An indictment filed prior to dismissal of a complaint but more than three years after the commission of a third degree felony was timely because the limitation period was tolled by the filing of a complaint within the three-year period. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089. No initials to describe offense. - The use of initials instead of words in a criminal complaint to identify the offense deprived defendant of due process of law. State v. Raley, 1974-NMCA-024, 86 N.M. 190, 521 P.2d 1031, cert. denied, 86 N.M. 189, 521 P.2d 1030. Subsection designation not required. - This rule does not require reference to subsections; it requires only a reference to the specific section number of the statute which contains the offense. State v. Nixon, 1976-NMCA-031, 89 N.M. 129, 548 P.2d 91.