N.M. R. Crim. P. Metro. Ct. 7-506
N.M. R. Crim. P. Metro. Ct. 7-506
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.
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.
Duty of prosecutor. - It is the continuing duty of the prosecutor to seek the commencement of trial within the time specified in this rule.
Local detention center. - "Local detention center" is defined as "one that is commonly used by the metropolitan court in the normal course of business and not necessarily within the territorial jurisdiction of the court." Rule 7-401(A)(3) NMRA.
[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. S-1-RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023.]
ANNOTATIONS The 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; 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", in Subparagraph A(2), added the heading, after the first occurrence of "defendant", added "who is", after "citation as soon as", deleted "practical" and added "practicable", after "no later than", deleted "two (2) calendar" and added "three (3)", and after "date of arrest", 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, added provisions that the aggregate of all extensions requested by the defendant may not exceed sixty days and that the aggregate of all extensions stipulated to by the parties may not exceed sixty days, removed the provision that the aggregate of all extensions under Subparagraph C(5) may not exceed thirty 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)", after "days", added "provided that the aggregate of all extensions granted under this subparagraph shall not exceed sixty (60) days"; in Subparagraph C(3), after "exceeding sixty (60) days", added "provided that the aggregate of all extensions granted under this subparagraph shall not exceed sixty (60) days"; in Subparagraph C(5), after "within the time period", deleted "provided that the aggregate of all extensions granted under this subparagraph may not exceed thirty (30) days" and added "and a finding, either on the record or in writing, that the defendant would not be unfairly prejudiced, the court may grant further extensions that are necessary in the interests of justice"; in Paragraph D, after "granted under Subparagraph", added "(C)", and after "(5)", deleted "of Paragraph C"; in the committee commentary, in the paragraph under the heading "Exceptional circumstances", added the last two sentences of the paragraph. 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 second 2008 amendment, approved by Supreme Court Order No. 08-8300-053, effective January 15, 2009, in Paragraph E, after "Paragraph", changed "E" to "B", after "such person", replaced "shall" with "may", and added "or the court may consider other sanctions as appropriate" at the end of the sentence. The first 2008 amendment, as approved by Supreme Court Order No. 08-8300-051, effective January 15, 2009, in Subparagraph (7) of Paragraph B, changed "if the defendant has been placed in a preprosecution diversion program, the date a notice is filed in metropolitan court that the preprosecution program has been terminated for failure to comply with the terms," to "if the defendant has been referred to a preprosecution or court diversion program, the date a notice is filed in the metropolitan court that the defendant has been deemed not eligible for, is terminated from, or is otherwise removed from the preprosecution or court diversion program." 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. See Paragraphs A through C of Rule 7-506A NMRA for former Paragraphs A through C of Rule 7-506 NMRA Applicability of 2004 amendment. - The August 1, 2004 amendment of this rule applies to cases filed in the metropolitan court on and after August 1, 2004. See the prior rule for cases filed prior to that date.
For procedure to withdrawal of a plea by the defendant or rejection plea by the court, see Rule 7-502 NMRA. For form on order dismissing criminal complaint with prejudice, see Criminal Form 9-414 NMRA. A defendant is not required to file a motion to dismiss before the 182-day time period has passed. State v. Martinez, 2008-NMCA-052, 143 N.M.773, 182 P.3d 154. A defendant does not invite error by not objecting to the metropolitan court's extension of the 182-day period before the expiration of the time to commence trial. State v. Martinez, 2008-NMCA-052, 143 N.M.773, 182 P.3d 154. Date of commencement of trial. - Where the state and the defendant were present and prepared to commence a bench trial on the scheduled trial date which was within the 182-day period; on the scheduled trial date, the court agreed to hear the defendant's motion to suppress evidence and took the motion under advisement without hearing opening statements or testimony other than testimony related to the suppression motion; and the case came back for trial after the expiration of the 182-day period, the trial was deemed to have commenced on the originally scheduled trial date within the 182-day period in the absence of any indication in the record of an attempt by the state to circumvent the rule. State v. Candelario, 2008-NMCA-119, 144 N.M. 794, 192 P.3d 789. Delay charged to defendant. - Where the defendant had sufficient notice that the state would amend the complaint to charge the defendant with aggravated DWI second offense which would entitle the defendant to a jury trial instead of a bench trial, and the court granted the defendant's motion for a continuance to prepare for a jury trial, the court did not err in charging the defendant with the delay. State v. Maestas, 2007-NMCA-155, 143 N.M. 104, 173 P.3d 26. Preservation of error. - Where the metropolitan court judge repeatedly asserted that a bench warrant had been issued for the defendant's arrest for failure to appear at trial during the 182-day period; the defendant was not aware that a bench warrant had not been issued for defendant's arrest, and the defendant entered a plea conditioned upon his appeal of whether or not his trial commenced within the 182-day period, the defendant preserved his right to argue on appeal the legal consequence of the fact that a bench warrant had not been issued for defendant's arrest. State v. Granado, 2007-NMCA-058, 141 N.M. 575, 158 P.3d 1018. Failure to appear. - Where for a legitimate reason defendant failed to appear at the time of his scheduled trial; the metropolitan court judge announced that he intended to issue a bench warrant to arrest defendant for failure to appear; defendant appeared in court on the afternoon of the same day of his trial as directed by the judge's office; the judge accepted the defendant's explanation for his failure to appear at trial and did not issue a bench warrant; and defendant was never seized or taken into custody by a police officer because of his failure to appear at the time of trial, the defendant's failure to appear at trial was not an event that extended the 182-day period for commencement of the defendant's trial. State v. Granado, 2007-NMCA-058, 141 N.M. 575, 158 P.3d 1018. Insufficient notice of trial. - An order to appear for trial, without sufficient notice, cannot be the basis for a bench warrant, and the surrender in response to an improperly issued bench warrant does not restart the 182-day time period within which to commence trial. State v. Carroll, 2015-NMCA-034, cert. granted, 2015-NMCERT-001. Where defendant failed to appear at trial because the court sent notice of trial a mere six days before the trial date, the notice was not sufficient, and the insufficient notice could not be the basis for the issuance of the bench warrant issued for failure to appear; the improperly issued bench warrant was not within the discretion of the metropolitan court, and defendant's surrender in response to the improperly issued bench warrant did not restart the 182-day time period within which to commence trial. State v. Carroll, 2015-NMCA-034, cert. granted, 2015-NMCERT-001.