N.M. R. Mun. Ct. P. 8-703
N.M. R. Mun. Ct. P. 8-703
Committee commentary. - Former Paragraph H was redesignated as Paragraph B 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 35-15-1.
[Adopted by Supreme Court Order No. 12-8300-019, 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 8-401 NMRA to reflect amendments to that rule, and made other stylistic changes; in Paragraph A, after "Rule 5-826 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 8-401", added "(C)"; and in Paragraph C, replaced each occurrence of "which" with "that". The 2012 amendment, approved by Supreme Court Order No. 12-8300-019, effective for all cases pending or filed on or after August 3, 2012, required that appeals follow the Rules of Criminal Procedure for the District Courts; terminated bond liability upon a finding of guilt; authorized the court to set an appeal bond; specified the criteria for setting conditions of release; stayed all aspects of a sentence pending appeal; provided deadlines for the preparation of an abstract of record of the defendant's conviction; in Paragraph A added "in accordance with Rule 5-826 NMRA of the Rules of Criminal Procedure for the District Courts", deleted the former third sentence which provided that the three day mailing period did not apply to the time limits for appeal, deleted the former fourth sentence which provided for the filing of a notice of appeal before the filing of the judgment, and deleted the former fifth sentence which provided that no docket fee or cost would be imposed on the state or political subdivision or a defendant represented by a public defender or court appointed counsel; relettered Paragraph H as Paragraph B; in Paragraph B, deleted the former first through the sixth sentences which provided for the review of the conditions of release pending appeal, criteria for setting conditions of release, the continuance of former conditions of release and bond unless changed by the court, and added the first four sentences of the paragraph; added Paragraph D; deleted former Paragraph B which provided for the filing of a notice of appeal; deleted former Paragraph C which required that the notice of appeal substantially conform to the approved form; deleted former Paragraph D which provided for service of the notice of appeal; deleted former Paragraph E which provided for the docketing of the appeal; deleted former Paragraph F which provided for the record on appeal; deleted former Paragraph G which provided for the correction of the record; deleted former Paragraph J which provided for a trial de novo; deleted former Paragraph K which provided for notice of a trial setting by the clerk of the district court; deleted former Paragraph L which required a trial in district court to be held within six months; deleted former Paragraph M which provided for the extension of the time for trial by the Supreme Court; deleted former Paragraph N which provided for the procedure on appeal; deleted former Paragraph O which provided for the disposition of appeals by the district court; deleted former Paragraph P which provided for remand to the municipal court; deleted former Paragraph Q which provided for appeals to the Supreme Court or to the Court of Appeals; and deleted former Paragraph R which provided for the return of the record. The 2008 amendment, approved by Supreme Court Order No. 08-8300-057, effective January 15, 2009, in Paragraph L, changed "shall" to "may" and added ", or the court may consider other sanctions as appropriate" to the end of the last sentence. The 2007 amendment, approved by Supreme Court Order No. 07-8300-034, effective January 22, 2008, amended Paragraph L to delete the time limitations for the disposition of criminal cases and adopt by reference from Rule 5-604 NMRA the following time limits for commencement of trial: B. Time limits for commencement of trial. The trial of a criminal case or habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest: (2) if the proceedings have been stayed to determine the competency of the defendant to stand trial, the date an order is filed finding the defendant competent to stand trial; (3) if a mistrial is declared or a new trial is ordered by the trial court, the date such order is filed; (4) in the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in the district court disposing of the appeal; (8) the date the court allows the withdrawal of a plea or the rejection of a plea made pursuant to Paragraphs A to F of Rule 5-304 NMRA. The 2003 amendment, effective February 16, 2004, substituted "against the" for "upon a" and deleted "other" preceding "court" in the last sentence of Paragraph A, and added the last two sentences of Paragraph H and "clerk" to the end of Paragraph R. The 1997 amendment, effective January 1, 1997, in Paragraph A, substituted "aggrieved by the judgment or final order of" for "aggrieved by any final order or judgment rendered by" in the first sentence, inserted "in the district court" in the second sentence, and rewrote the last sentence; in Paragraph B, inserted "with proof of service" in Subparagraph (1) and "promptly" in Paragraph (2), and added Subparagraph (2)(b); rewrote Paragraphs C and D which formerly related to stay and docketing of the appeal, respectively; added Paragraph E; redesignated former Paragraph E as Paragraph F and rewrote that paragraph; added Paragraph G and redesignated former Paragraphs F through K as Paragraphs H through M; rewrote Paragraph H; added the last two sentences in Paragraph I; rewrote Paragraph J; substituted "appeals" for "cases" in Paragraph K; substituted "a trial de novo appeal" for "the appeal" in Paragraph L; rewrote Paragraph M; added Paragraph N; deleted former Paragraph L relating to final order and remand to municipal court; and added Paragraphs O to R. The 1995 amendment, effective January 1, 1995, added Paragraph I, redesignated the remaining paragraphs accordingly and made related changes. The 1994 amendment, effective January 1, 1994, in Paragraph A, deleted "by defendant" at the end of the paragraph heading and rewrote the paragraph, which read "A defendant who is aggrieved by any judgment rendered by the municipal court may appeal to the district court of the county within which the municipal court is located within fifteen (15) days after entry of the judgment or final order"; and deleted former Paragraph B relating to appeals by the municipality and redesignated the remaining paragraphs and made related changes accordingly. The 1990 amendment, effective for cases filed in the municipal courts on or after September 1, 1990, deleted Subparagraph (5) of Paragraph F, which read "(5) the record of the hearing in the municipal court, if any".
For form on notice of appeal, see Rule 9-607 NMRA. For form on title page of transcript of criminal proceedings and certificate, see Rule 9-608 NMRA. For notice of appeal, see Rule 9-607 NMRA. For the withdrawal or rejection of a plea by the municipal court judge, see Rule 8-502 NMRA. District court reviews, de novo, the merits of pretrial motions on appeal. - Because the right of appeal from courts not of record is the right to a trial or hearing de novo in the district court, the district court must make an independent determination, de novo, of the merits of any pretrial motions raised by the parties on appeal. City of Farmington v. Pinon-Garcia, 2013-NMSC-046, aff'g 2012-NMCA-079, 284 P.3d 1086. Scope of district court review of pretrial motions on appeal. - When a district court reviews a lower court's grant or denial of a dispositive pretrial motion, it does so independently. The district court does not consider whether the lower court abused its discretion; rather, it must consider the merits of the motion without regard to what the lower court decided. City of Farmington v. Pinon-Garcia, 2013-NMSC-046, aff'g 2012-NMCA-079, 284 P.3d 1086. District court independently determines the merits of pretrial motions on appeal. - Where defendant was arrested and charged in municipal court with DWI in violation of municipal ordinances; the municipal court granted defendant's motion to dismiss all charges because the arresting officer, who was the only witness to observe defendant driving and who administered defendant's breath alcohol test, did not appear at trial; and the municipality appealed the dismissal of the DWI charge to the district court, the district court was required to review, de novo, the merits of the municipal court's pretrial ruling on defendant's motion to dismiss the DWI charge and independently determine the merits of the motion without regard to what the municipal court decided. City of Farmington v. Pinon-Garcia, 2013-NMSC-046, aff'g 2012-NMCA-079, 284 P.3d 1086. Appeals are subject to de novo review of all issues raised in the lower court. - Where defendant was charged with various traffic violations; when the municipality's main witness, the arresting officer, failed to appear at trial, the municipal court dismissed the charges with prejudice; and the municipality appealed to district court, before the district court conducted a new trial on the charges against defendant, the district court was required to conduct de novo pretrial proceedings and review all preliminary matters raised by the parties, including whether it was appropriate for the municipal court to dismiss the charges against defendant. City of Farmington v. Pinon-Garcia, 2012-NMCA-079, 284 P.3d 1086, cert. granted, 2012-NMCERT-008, aff'd, 2013-NMSC-046. Trial commenced beyond time limit not barred. - A trial in the district court commenced beyond the time limit is not a jurisdictional bar. Rather, the beneficiary of the rule has to raise the issue in order to reap the benefits of the rule. Village of Ruidoso v. Rush, 1982-NMCA-056, 97 N.M. 733, 643 P.2d 297. 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. Court must uphold agreement not to raise bar of time limitation. - It is unfair in the due process sense for the district court to negate the prosecutor's agreement not to assert the six-month rule. Village of Ruidoso v. Rush, 1982-NMCA-056, 97 N.M. 733, 643 P.2d 297. Defendant is not entitled to trial de novo on direct contempt charges which took place before a municipal court. City of Bernalillo v. Aragon, 1983-NMCA-142, 100 N.M. 547, 673 P.2d 831. Officer may not continue 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. Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review § 1 et seq. 24 C.J.S. Criminal Law § 1660 et seq.