N.M. R. Crim. P. Metro. Ct. 7-703
N.M. R. Crim. P. Metro. Ct. 7-703
Committee commentary. - Section 34-8A-6C NMSA 1978 (as amended by Laws 1980, Chapter 142, Section 4 ), is so broad as to be in violation of the constitutional prohibition against double jeopardy. The rule as drafted limits appeals by the prosecution to a determination of the validity of the statute or ordinance under which the defendant was prosecuted, thus avoiding the statutory violation mentioned above.
Paragraph H was redesignated as Paragraph C and revised to clarify that bond liability terminates upon a finding of guilt pursuant to NMSA 1978, § 31-3-10(1987). Paragraph D was added to clarify that all aspects of the sentence shall be stayed pending appeal because there were wide variances in interpretation and practice. The provision in Paragraph D regarding preparation and issuance of the abstract of record of the defendant's conviction is intended to reconcile the potentially conflicting ten (10) day deadline in NMSA 1978, Section 66-8-135 and the fifteen (15) day notice of appeal deadline in this rule and NMSA 1978, Section 34-8A-6.
[Adopted by Supreme Court Order No. 12-8300-020, effective August 3, 2012.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, revised the citation to Rule 7-401 NMRA to reflect amendments to that rule, and made other stylistic changes; in Paragraph A, after "Rule 5-827 NMRA", deleted "of the Rules of Criminal Procedure for the District Courts"; in Paragraph B, replaced "assure" with "ensure" throughout, after "criteria listed in", deleted "Paragraph B of", and after "Rule 7-401", added "(C)"; and in Paragraph C, replaced each occurrence of "which" with "that". The 2012 amendment, approved by Supreme Court Order No. 12-8300-020, effective August 3, 2012, provided that appeals to district court be filed as set forth in the Rules of Criminal Procedure for the District Courts; provided that bond liability terminates upon a finding of guilty and authorizes the metropolitan court to set appeal bonds and conditions of release to assure the appearance of the defendant; required the stay of execution of a sentence pending the appeal; provided for a stay of the preparation of the abstract of record of conviction; in Paragraph A, deleted former provisions relating to the three day mailing period, the filing of a notice of appeal before the filing of a judgment, and the waiver of the docket fee for appeals by the state and the public defender; deleted former Paragraph B which provided the procedure for filing a notice of appeal; deleted former Paragraph C which specified the content of the notice of appeal; deleted former Paragraph D which provided for service of the notice of appeal; deleted former Paragraph E which provided for docketing the appeal; deleted former Paragraph F which provided for filing the record on appeal; deleted former Paragraph G which provided for the correction or modification of the record on appeal; changed the letter designation of former Paragraph H to Paragraph B; in Paragraph B, deleted provisions which required the metropolitan court to review the conditions of release and which provided that a defendant on release pending trial would continue on release on the same terms and conditions and on the same bond unless modified by the metropolitan court; deleted former Paragraph J which provided for trials de novo on appeal; deleted former Paragraph K which provided for notice of settings of trials de novo; deleted former Paragraph L which required that trials de novo be heard within six months after the filing of the notice of appeal; deleted former Paragraph M which provided for the extension of the six month period; deleted former Paragraph N which provided that the Rules of Criminal Procedure govern appeals; deleted former Paragraph O which provided for rehearing of appeals; deleted former Paragraph P which provided for the disposal of appeals; deleted former Paragraph Q which provided for remand by the district court; deleted former Paragraph R which provided for appeals from the district court to the Court of Appeals; deleted former Paragraph S which provided for the return of the record to the metropolitan court; and added Paragraph D. The 2008 amendment, approved by Supreme Court Order No. 08-8300-056, effective January 15, 2009, in Paragraph L, changed "shall" to "may" and added ", or the court may consider other sanctions as appropriate" at the end of the last sentence. The 2003 amendment, effective February 16, 2004, added the last two sentences of Paragraph H and substituted "involving" for "from" in Paragraph J. The 1997 amendment, effective January 1, 1997, rewrote Paragraph A; in Paragraph B, inserted "with proof of service" in Subparagraph (1) and added Subparagraph (2)(b); rewrote Paragraphs C, D, and E which formerly related to stay, docketing of the appeal, and transmission, respectively; rewrote Paragraph F; rewrote Paragraph G; rewrote Paragraph H; rewrote the last sentence in Paragraph I; added "appeals" in the Paragraph J heading and deleted "and shall be governed by the Rules of Criminal Procedure for the District Courts" in Paragraph J; substituted "time limit" for "time limits" and made a stylistic change in Paragraph M; rewrote Paragraph N; added Paragraphs O to R and redesignated former Paragraph O as Paragraph S; and substituted "record on appeal" for "record and any exhibits" in Paragraph S. The 1995 amendment, effective January 1, 1995, added Paragraph K, and redesignated the remaining paragraphs accordingly and made related changes. The second 1994 amendment, effective January 1, 1994, rewrote this rule.
For form on notice of appeal, certificate of service by attorney, and affidavit of service of a party, see Rule 9-607 NMRA. For form on title page of transcript of criminal proceedings, see Rule 9-608 NMRA. A defendant may not attack the validity of a metropolitan court plea for the first time in an on-the-record appeal to the district court. State v. Spillman, 2010-NMCA-019, 147 N.M. 676, 227 P.3d 1058. Attack on the validity of a plea for the first time on appeal. - Where defendant pled no contest in metropolitan court to a charge of battery against a household member pursuant to a plea and disposition agreement and defendant appealed the sentence to district court, the district court, sitting as an appellate court, was without authority to address defendant's contention that defendant did not fully understand the basis of the plea. State v. Spillman, 2010-NMCA-019, 147 N.M. 676, 227 P.3d 1058. This rule does not unconstitutionally abridge right of appeal guaranteed by N.M. Const. art. VI, § 27. State v. Ball, 1986-NMSC-030, 104 N.M. 176, 718 P.2d 686. Appeal from the metropolitan court is governed by the crime of which defendants are convicted rather than the type of trial; thus, defendant convicted of eluding an officer and reckless driving was entitled to a trial de novo, even though the trial was on the record. State v. Krause, 1998-NMCA-013, 124 N.M. 415, 951 P.2d 1076, cert. denied, 125 N.M. 146, 958 P.2d 104. One who agrees not to be aggrieved cannot appeal. - One who agrees not to be aggrieved by entering into a plea and disposition agreement in the metropolitan court, who alleges no constitutional invalidity in the agreement, and who does not seek to have his plea and agreement withdrawn, is not an "aggrieved" party and cannot appeal to the district court. State v. Bazan, 1982-NMCA-018, 97 N.M. 531, 641 P.2d 1078, overruled on other grounds by State v. Ball, 1986-NMSC-030, 104 N.M. 176, 718 P.2d 686. "Aggrieved" defendant. - A defendant who properly has entered a plea of guilty or nolo contendere in metropolitan court is not an "aggrieved" party entitled to appeal to the district court for a trial de novo. State v. Ball, 1986-NMSC-030, 104 N.M. 176, 718 P.2d 686. Officer may not continue magistrate or municipal case in district court. - A peace officer who has prosecuted a criminal case in magistrate or municipal court may not continue to prosecute the case in district court after an appeal of the magistrate or municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27. Prosecution has no right to appeal the metropolitan court's suppression of evidence. State v. Giraudo, 1983-NMCA-042, 99 N.M. 634, 661 P.2d 1333. May appeal order of dismissal. - Since an order of dismissal for failure to timely prosecute is a final judgment, the prosecution may appeal it from the metropolitan court to the district court. State v. Giraudo, 1983-NMCA-042, 99 N.M. 634, 661 P.2d 1333. Late filing of appeal. - Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Court error may excuse late appeal. - One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Technical deficiency in metropolitan court transcript may be harmless. - Where trial court has sufficient information to proceed with the trial, a technical deficiency in transcript of metropolitan court, such as failure to include all pleadings or metropolitan court's final order, did not deprive trial court of power to proceed with the trial. State v. Gallegos, 1984-NMCA-069, 101 N.M. 526, 685 P.2d 381. Counsel's failure to file timely notice of appeal. - Defendant was denied effective assistance of counsel by counsel's failing to file a timely notice of appeal in district court when counsel was aware of defendant's intent to appeal his metropolitan court judgment and sentence. State v. Manuelito, 1993-NMCA-045, 115 N.M. 394, 851 P.2d 516. Single notice of appeal valid for two convictions where notice identified the two cases and internal wording of notice stated that appeal was taken in both cases. State v. Gallegos, 1984-NMCA-069, 101 N.M. 526, 685 P.2d 381. Failure to preserve issue. - When a defendant fails to show the district court that he preserved issue in metropolitan court, the district court is not required to make an independent determination of whether the metropolitan court six-month rule was violated. State v. Hoffman, 1992-NMCA-098, 114 N.M. 445, 839 P.2d 1333. Ineffective assistance of counsel on appeal. - When the state purports to satisfy a criminal defendant's constitutional right to counsel, ineffective assistance of the appointed counsel may overcome the mandatory precondition to the district court's exercise of jurisdiction under Paragraph J of this rule. Varela v. State, 1993-NMSC-030, 115 N.M. 586, 855 P.2d 1050. Dismissal of de novo appeals for failure to appear. - Before a de novo appeal can be dismissed for failure to appear, the court must give the defendant notice of the pending dismissal and 10 days to show cause why the appeal should not be dismissed. State v. Wilson, 1993-NMCA-032, 116 N.M. 802, 867 P.2d 1184. A showing of extreme willfulness is necessary before the district court can dismiss an appeal for failure to appear prior to the expiration of the six-month rule. State v. Wilson, 1993-NMCA-032, 116 N.M. 802, 867 P.2d 1184. Transcripts. - Because transcripts are designated separately from papers in the rules listing the contents of the record on appeal, transcripts are not "papers," but transcripts that are properly admitted into evidence as exhibits may be part of the record on appeal. State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824.