N.M. R. Crim. P. Magist. Ct. 6-506
N.M. R. Crim. P. Magist. Ct. 6-506
Committee commentary. -
Exceptional circumstances. - "Exceptional circumstances," as used in this rule, would include conditions that are unusual or extraordinary, such as death or illness of the judge, prosecutor, or defense attorney immediately preceding the commencement of the trial; or other circumstances that ordinary experience or prudence would not foresee, anticipate, or provide for. The court may grant an extension for exceptional circumstances only if the court finds that the extension will not unfairly prejudice the defendant. The defendant may move the court to dismiss the case based on a particularized showing that the extension or impending extension would subject the defendant to oppressive pretrial incarceration, anxiety and concern, or the possibility that the defense will be impaired.
Constitutional right to speedy trial. - This rule is distinct from any speedy trial rights a defendant may have under the constitutions and laws of the United States and the State of New Mexico. See State v. Urban, 2004-NMSC-007, 135 N.M. 279, 87 P.3d 1061, for the factors to be considered.
Duty of prosecutor. - It is the continuing duty of the prosecutor to seek the commencement of trial within the time specified in this rule. It is the obligation of both parties to make a good faith effort to complete their separate discovery and to advise the court of non-compliance with Rule 6-504 NMRA.
Computation of time. - Time periods are computed under Rule 6-104 NMRA.
Paragraph A. - Paragraph A of this rule requires arraignment within thirty (30) days after the filing of the complaint or citation or the date of arrest, whichever is later. For defendants in custody, arraignment is required within three (3) days after the date of arrest if the defendant is being held in the local jail, or five (5) days after the date of arrest, if the defendant is being held in another jurisdiction. A failure to arraign the defendant within the time limitation will not result in a dismissal of the charge unless the defendant can show some prejudice because of the delay. Local detention center" is defined as "one that is commonly used by the magistrate court in the normal course of business and not necessarily within the territorial jurisdiction of the court." Rule 6-401(A)(3) NMRA.
Paragraph B. - A violation of Paragraph B of this rule can result in a dismissal with prejudice under Paragraph E of this rule. See also State v. Lopez, 1976-NMSC-012, ¶3, 89 N.M. 82, 547 P.2d 565. However, the rules do not create a jurisdictional barrier to prosecution. The defendant must raise the issue and seek dismissal. See State v. Vigil, 1973-NMCA-089, ¶ 28, 85 N.M. 328, 512 P.2d 88. If the state in good faith files a nolle prosequi under Rule 6-506.1(C) and (D) NMRA and later files the same charge, the trial on the refiled charges shall be commenced within the unexpired time for trial under Rule 6-506 NMRA, unless, under Rule 6-506.1(D) NMRA, the court finds the refiled complaint should not be treated as a continuation of the same case.
[As amended by Supreme Court Order No. 13-8300-019, effective for all cases pending or filed on or after December 31, 2013; as amended by Supreme Court Order No. 16-8300-002, effective for all cases filed on or after May 24, 2016; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017; as amended by Supreme Court Order No. 17-8300-022, effective for all cases pending or filed on or after December 31, 2017; as amended by Supreme Court Order No. S-1-RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023.]
ANNOTATIONS The second 2017 amendment, approved by Supreme Court Order No. 17-8300-022, effective December 31, 2017, in the last paragraph of the committee commentary, changed "Paragraphs C and D of Rule 6-506A" to Rule 6-506.1(C) and (D)", and changed "Paragraph D of Rule 6-506A" to "Rule 6-506.1(D)". The first 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, revised the provisions relating to time limits for arraignment of defendants who are in custody, for defendants who are not in custody, and following dismissal or discharge of felony charges, and revised the committee commentary; in Paragraph A, in the heading, added "Time limits for", added subparagraph designations "(1)" and "(2)", in Subparagraph A(1), added the heading, deleted "The" and added "A", after the first occurrence of "defendant", added "who is not in custody", and added the last sentence, in Subparagraph A(2), added the heading, after "defendant", added "who is", after "citation as soon as", deleted "practical" and added "practicable", after "no later than", deleted "four (4)" and added "three (3)", and added "if the defendant is being held in the local detention center, or no later than five (5) days after the date of arrest if the defendant is not being held in the local detention center", and added Subparagraph A(3). The 2016 amendment, approved by Supreme Court Order No. 16-8300-002, effective May 24, 2016, increased the maximum amount of time for which a defendant may request an extension of time for commencement of trial, removed the provision that the aggregate of all extensions under Subparagraph C(5) may not exceed sixty days, required the court to make certain findings regarding prejudice to the defendant when granting certain extensions of time, and revised the committee commentary to clarify that the court must consider prejudice to the defendant when considering an extension of time based on exceptional circumstances; in Subparagraph C(2), after "a period not exceeding", deleted "thirty (30)" and added "sixty (60)"; in Paragraph C(5), after "within the time period", deleted "provided that the aggregate of all extensions granted under this subparagraph may not exceed sixty (60) days" and added "and a written finding that the defendant would not be unfairly prejudiced, the court may grant further extensions that are necessary in the interests of justice"; in the committee commentary, in the paragraph under the heading "Exceptional circumstances", added the last two sentences of the paragraph, and in the paragraph under the heading "Computation of Time", added vendor neutral citations to the cases cited. The 2013 amendment, approved by Supreme Court Order No. 13-8300-019, effective December 31, 2013, provided a time limit after arrest for the arraignment of a defendant in custody, provided for the extension of the time for the commencement of trial, and required dismissal of a complaint with prejudice for noncompliance with the time limit for commencement of trial; in Paragraph A, added the second sentence; and in Paragraph E, deleted the former rule which required that a complaint be dismissed with prejudice if trial did not commence within the prescribed time limit or any extension, and added Subparagraphs (1) and (2). The 2008 amendment, approved by Supreme Court Order No. 08-8300-054, effective January 15, 2009, in Paragraph E, changed "shall" to "may" and added "or the court may consider other sanctions as appropriate" to the end of the sentence. The 2007 amendment, approved by Supreme Court Order No. 07-8300-025, effective November 1, 2007, added a new Subparagraph (6) of Paragraph C to provide for an extension of the time for trial if defense counsel fails to appear for trial and amended Subparagraph (4) of Paragraph B to provide for trials to occur within 182 days after a request for extraordinary relief. The 2004 amendment, effective August 1, 2004, deleted all of former Paragraphs A through E and added new Paragraph A through E of this rule.
For procedure to withdrawal of a plea by the defendant or rejection plea by the court, see Rule 6-502 NMRA. For form on order dismissing criminal complaint with prejudice, see Criminal Form 9-414 NMRA. Nolle prosequi in magistrate court. - Where the State, less that two months after the six-month rule had begun to run, filed a nolle prosequi in magistrate court and refiled the case in district court before the magistrate court ruled on the defendant's motion to suppress, the nolle prosequi was not filed for the purpose of delay or to circumvent operation of the six-month rule because the district court required that nolle prosequis in magistrate court be filed within sixty days after the date when the six-month rule began to run and because no appeal would be permitted from a magistrate court suppression order. State v. Neal, 2008-NMCA-008, 143 N.M. 371, 176 P.3d 330. Circumventing rule. - The state cannot escape the effect of the six-month rule if the dismissal of an aggravated DWI case in the magistrate court and re-filing in the district court is done to circumvent the six-month rule. State v. Carreon, 2006-NMCA-145, 140 N.M. 779, 149 P.3d 95, cert. granted, 2006-NMCERT-011. State burden of proof not satisfied. - Where the state continued to participate in proceedings in the magistrate court DWI case against defendant, without any plea offer, and dismissed the case in magistrate court several days before the six-month period expired and refiled the case in district court, the state's explanation that it was acting pursuant to the state's policy to file DWI cases in magistrate court to determine whether the defendant will plead to the charge or otherwise settle the case and if the defendant does not plead or settle the case, to dismiss the case in magistrate court and refile it in district court, does not satisfy the state's burden of showing that the dismissal and refiling were not done for a bad reason, including doing so for the purpose of circumventing the six-months rule. State v. Carreon, 2006-NMCA-145, 140 N.M. 779, 149 P.3d 95, cert. granted, 2006-NMCERT-011. Additional six-month period commences if the defendant is arrested for failure to appear. - Where defendant was charged with driving while under the influence of intoxicating liquor, was arraigned on November 5, 2012, but due to numerous delays, was not scheduled for trial until May 9, 2013, one hundred eighty-five days after arraignment, the district court did not err in denying defendant's motion to dismiss based on a violation of the six-month rule, because defendant failed to appear for trial on May 9, 2013, for which a bench warrant was issued; Rule 6-506(B)(5) NMRA is self-executing, and under its terms, an additional six-month period to commence trial begins upon arrest or surrender, and the fact that the arrest warrant was issued after the initial six-month period elapsed is of no consequence, because the rule does not contain such a qualification. State v. James, 2017-NMCA-053, cert. denied. The six month rule begins anew after an arrest for failure to appeal. - The triggering event specified in the six month rule, arrest for failure to appear, is unqualified in any way, and therefore once defendant was arrested for failure to appear, regardless of whether the failure to appear was willful, the six-month period in which to initiate trial began anew. State v. Dorais, 2016-NMCA-049, cert. denied.