N.M. R. Mun. Ct. P. 8-506.1

As amended through August 23, 2024

Rule 8-506.1 - Voluntary dismissal and refiled proceedings

A.Voluntary dismissal. The prosecution may dismiss a citation or criminal complaint by filing a notice of dismissal. The notice of dismissal shall be substantially in the form approved by the Supreme Court. Unless otherwise stated in the notice, the dismissal is without prejudice. A notice of dismissal shall be filed:

(1) prior to commencement of the trial; or

(2) after the acceptance of a plea of guilty or no context, but prior to sentencing.

B.Bail bond. The filing of a notice of dismissal under Paragraph A of this rule shall exonerate a bond only as provided in Rule 8-406 NMRA. If the dismissed charges are later filed in another court, the state shall notify the municipal court, and the municipal court shall transfer any bond to that court.

C.Refiled complaints. If a citation or complaint is dismissed without prejudice and the charges are later refiled, the refiled complaint shall be clearly captioned "Refiled Complaint" and shall include the following:

(1) the court in which the original charges were filed;

(2) the case file number of the dismissed charges;

(3) the name of the assigned judge at the time the charges were dismissed; and

(4) the reason the charges were dismissed.

D.Procedure after refile. If a citation or complaint is dismissed without prejudice and the charges are later refiled, the case shall be treated as a continuation of the same case, and the trial on the refiled charges shall be commenced within the unexpired time for trial under Rule 8-506 NMRA, unless the court, after notice and a hearing, finds the refiled complaint should not be treated as a continuation of the same case. The time between dismissal and refiling shall not be counted as part of the unexpired time for trial under Rule 8-506 NMRA.

N.M. R. Mun. Ct. P. 8-506.1

Adopted, effective 8/1/2004; as amended by Supreme Court Order No. 13-8300-030, effective for all cases pending or filed on or after12/31/2013; 8-506A recompiled and amended as 8-506.1 by Supreme Court Order No. 17-8300-024, effective for all cases pending or filed on or after12/31/2017.

Committee commentary. - The court's acceptance of a no contest or guilty plea does not raise a double jeopardy bar to subsequent prosecution if the charges to which the defendant has pled subsequently are dismissed prior to sentencing. See State v. Angel, 2002-NMSC-025, 132 N.M. 501, 51 P.3d 1155 (holding that double jeopardy did not bar subsequent prosecution in district court where the magistrate court accepted the defendant's no contest plea to misdemeanor offenses but dismissed the charges prior to sentencing); see also State v. Lizzol, 2007-NMSC-024, ¶ 7, 141 N.M. 705, 160 P.3d 886 (explaining that whether a dismissal constitutes an acquittal, and therefore bars reprosecution on double jeopardy grounds, depends on "whether the trial court's ruling, however labeled, correctly or incorrectly resolved some or all of the factual elements of the crime").

[Adopted by Supreme Court Order No. 13-8300-030, effective for all cases pending or filed on or after December 31, 2013.]

ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-024, effective December 31, 2017, revised the provisions for voluntary dismissals, and made technical revisions; in Paragraph A, deleted former Subparagraph A(1) and redesignated former Subparagraph A(2) as new Subparagraph A(1), and added a new Subparagraph A(2); and in Paragraph B, after "shall", deleted "not automatically", after "exonerate a bond", deleted "prior to the expiration of six (6) months after the date the bond was executed" and added "only as provided in Rule 8-406 NMRA", after "If", deleted "prior to the expiration of six (6) months", and after "charges are", added "later". The 2013 amendment, approved by Supreme Court Order No. 13-8300-030, effective December 31, 2013, required that a notice of dismissal be filed after the acceptance of a plea and before sentencing; provided that the time between dismissal and refiling a complaint is not counted as part of the time for trial under Rule 6-506 NMRA; added Subparagraph (1) of Paragraph A; and in Paragraph D, added the second sentence. The 2004 amendment. - Paragraphs A and B of this rule are the same as Paragraphs A through B of Rule 8-506 prior to the August 1, 2004 amendment of that rule. Paragraph C of this rule relating to refiled complaints replaces former Paragraph C of Rule 8-506 NMRA. Paragraph D of this rule replaces former Paragraph D of Rule 8-506 NMRA. Recompilations. - Pursuant to Supreme Court Order No. 17-8300-024, former 8-506A NMRA was recompiled and amended as 8-506.1 NMRA, effective December 31, 2017.

For procedure to withdrawal of a plea by the defendant or rejection plea by the court, see Rule 8-502 NMRA. For form on notice of dismissal of criminal complaint, see Criminal Form 9-415 NMRA.