N.M. R. Crim. P. Magist. Ct. 6-406
N.M. R. Crim. P. Magist. Ct. 6-406
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 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", in added Subparagraphs A(5) and A(6); in Paragraph B, in the heading, after "Surrender of", 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 6-403 NMRA or if the court has declared a forfeiture of the bond pursuant to the provisions of this rule", after "paid surety", deleted "delivers" and added "arrests", and after "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 6-401 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", after "on the", deleted "clerk of the court" and added "defendant, at the defendant's last known address, and on the surety, if any", and added the last sentence; in Paragraph D, after "surrendered by", deleted "the" and added "a", after "surety", added "if any", and added the last sentence; in Paragraph E, in the heading and 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", after "surety,", added "if any", and deleted the last sentence, which provided, "Notwithstanding any provision of law, no other refund of the bail bond shall be allowed."; and in Paragraph F, after "in accordance with", deleted "the", after "Rule 2-705 NMRA", deleted "of the Rules of Civil Procedure for the Magistrate Courts", and after "Rule 1-072 NMRA", deleted "of the Rules of Civil Procedure for the District Courts". The 2010 amendment, approved by Supreme Court Order No. 10-8300-034, effective December 10, 2010, in Paragraph B, in the last sentence, after "the court may absolve the", deleted "bondsman" and added "the 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.