Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

2.1-3 Arraignment

A. Definition; General

1. The arraignment is the proceeding at which the defendant is brought before the judge after arrest or in response to a criminal summons in order to enter a plea to the charge(s).

   a. With prior approval of the court, an arraignment may be waived by the defendant filing a written plea of not guilty before the arraignment. Magis. Ct. R. 6-501; Metro. Ct. R. 7-501; Criminal Form 9-405 (Waiver of Arraignment, Entry of Plea of Not Guilty); see also §2.2-3(C) of this Benchbook regarding representation by counsel.

   b. Arraignment may be handled through use of a two-way audio-video communication if:

   (i) the defendant and the defendant's legal counsel are able to speak privately and have unrecorded communication;

   (ii) the judge, legal counsel (if any), and the defendant are able to communicate with and see each other through the two-way system; and

(iii) the arraignment may be heard and viewed contemporaneously by the judge and the public. Magis. Ct. R. 6-110A; Metro. Ct. R. 7-110A; see also Criminal Form 9-104A (Request for Audio or Audio-Visual Appearance).

2. In cases filed on or after August 1, 2004, the defendant must be arraigned within thirty (30) days of the later of the following:
   
   a. the filing of the complaint or citation, or
   
   b. the date of arrest. Magis. Ct. R. 6-506(A), Time of Commencement of Trial (amended Aug. 1, 2004); Metro. Ct. R. 7-506(A), Time of Commencement of Trial (amended Aug. 1, 2004).
3. At the arraignment, the judge

a. informs the defendant of the charges;

b. informs the defendant of the penalty provided by law for the offense(s) charged;

c. informs the defendant of his or her rights;

d. receives a plea to the charges;

e. sets bond and or bail; and

f. sets or reviews conditions of release.

See §2.1-3(C) below for a full list of the court’s duties.

B. Juveniles in the Magistrate and Metropolitan Courts

1. If the defendant was a minor (under 18 years of age) at the time of the alleged offense and the defendant is charged with a delinquent act, that is, an offense that would be a crime if committed by an adult, the judge transfers the case to the children's court. Sections 32A-1-5(C) and 32A-2-6; see also §32A-1-8(A)(1) (Children’s court has exclusive jurisdiction over children charged with delinquent acts).
2. Most traffic offenses committed by a minor are within the jurisdiction of the magistrate and metropolitan courts and need not be transferred to Children’s Court. 1972 Op. Att’y Gen. No. 72-32 (rendered prior to the 1993 revision of §32A-2-3). But see §32A-2-3(A)(1) (identifying specific traffic violations over which the Children’s Court has original and exclusive jurisdiction).
3. Traffic offenses considered “Delinquent Acts,” which must be transferred, include (but are not limited to): DWI: Failure to stop for an Accident Causing Death, Personal Injury, or Property Damage; Reckless Driving; and Driving on a Suspended or Revoked License. Section 32A-2-3.
4. When a case must be transferred:

   a. The judge orders that the minor be taken promptly to the Children's court or a designated place of detention, or that the minor be released to a parent, guardian, or other custodian pending appearance before the Children's court. Section 32A-2-6(B).

   b. The judge transfers a copy of the entire file to the Children's court and takes steps to ensure that documents in the court record are treated as confidential in the same manner and to the same extent as if charges had first been filed in children's court. Criminal Form 9-608 (Title Page of Transcript of Criminal Proceedings); see also §32A-2-32.

5. Detention of Serious Youthful Offenders. If the defendant is 15 to 18 years old and charged with first-degree murder, then the defendant is considered to be a "serious youthful offender" under the criminal code. An alleged serious youthful offender may be detained prior to arraignment in metropolitan, magistrate or district court in:

   a. a licensed detention facility for delinquent children;

   b. any other suitable place that meets standards for detention facilities as set by the Children's Code and federal law; or

   c. a county jail if (a) and (b) are not appropriate.

6. At arraignment, if the court determines that the alleged serious youthful offender should remain in custody, the offender may be detained in an adult or juvenile detention facility. Sections 31-18-15.2 & -15.3.

C. Explanation of Rights (Magis. Ct. R. 6-501(A); Metro. Ct. R. 7-501(A))
At the arraignment of the defendant, the judge must inform the defendant of the following:

1. The offense charged.
2. The maximum penalty and mandatory minimum penalty provided by law for the offense charged; if a specific penalty is not provided for the alleged crime the defendant is informed of the penalty for a misdemeanor or petty misdemeanor, whichever is applicable. See §2.1-1(A) regarding penalties for misdemeanors and petty misdemeanors.
3. The right to bail, if the person was arrested and is in custody. See §2.2-3(E) of this Benchbook regarding release and bail.
4. The right to trial by jury. N.M. Const. art. II, §14; see also §2.1-5 of this Benchbook regarding jury trial;
5. The right to see, hear, question and cross-examine the witnesses who testify against the defendant at the trial.
6. The right to call witnesses to testify for the defense and to have them subpoenaed and required to appear, at no cost to the defendant. N.M. Const. art II, §14.
7. The right to the assistance of counsel at every stage of the proceedings, if a jail sentence may be imposed. See section below regarding representation by counsel in misdemeanor cases.
8. The right to representation by an attorney at state expense, if the defendant is an indigent and a jail sentence may be imposed. See §2.2-3 (D) of this Benchbook regarding determination of indigency.
9. The right to remain silent; the fact that any statement made by the defendant may be used against him or her. And,
10. The right to testify at trial; but if the right is exercised, the defendant is subject to cross-examination. N.M. Const. art. II, §14.

D. Representation by Counsel

1. After the explanation of rights, the judge determines whether the defendant is represented by counsel.
2. If the defendant is not represented by counsel, the judge may allow the defendant reasonable time and opportunity to seek and consult with counsel before the proceedings continue. Magis. Ct. R. 6-501(A); Metro. Ct. R. 7-501(A).
3. If it appears that the defendant may be indigent, then the judge decides if a jail sentence will be imposed upon a plea of guilty or upon conviction.

   a. If the judge decides that no imprisonment will be imposed:

   (i) The defendant is not entitled to appointed counsel. Argersinger v. Hamlin, 407 U.S. 25 (1972).

   (ii) No determination of indigency is necessary. And

   (iii) No waiver of counsel is necessary. Compare Smith v. Maldonado, 103 N.M. 570 (1985) (no voluntary knowing and intelligent waiver of counsel where defendant who pled guilty was not advised or aware of the possibility of jail time).

   b. If the judge decides to reserve the option of imposing a sentence of imprisonment, then a determination of indigency is necessary. In such case, an indigent defendant is entitled to appointed counsel. Criminal Form 9-403 (Eligibility Determination for Indigent Defense Services).

4. In any case in which the judge reserves the option to sentence the defendant to incarceration, the defendant must be represented by counsel or must knowingly and intelligently waive counsel. Criminal Form 9-401A (Waiver of Counsel); see also Smith v. Maldonado, 103 N.M. 570 (1985). If counsel is waived, a written waiver should be obtained before the defendant is allowed to appear on his or her own behalf. If the defendant is indigent, the waiver must be countersigned by a public defender or other appointed counsel. Section 31-15-12(E); Criminal Form 9-401A (Waiver of Counsel). But see State v. Pino, 1997-NMCA-001, 122 N.M. 789 (holding that the lack of a public defender’s signature on the waiver-of-counsel form does not make that waiver invalid for purposes of sentence enhancement).
5. On the other hand, if the defendant is indigent and does not waive counsel, counsel should be appointed.
6. The sentence for a second or subsequent conviction of an offense that provides an enhanced penalty for a subsequent conviction, may not be enhanced unless the defendant was either represented by counsel throughout the proceedings for the prior conviction or waived counsel. State v. Ulibarri, 96 N.M. 511 (Ct. App. 1981), citing Baldasar v. Illinois, 446 U.S. 222 (1980); see also §2.3-2 of this Benchbook regarding sentences and §4.2 of the New Mexico DWI Benchbook regarding right to counsel in DWI cases.
7. The judge should not accept a waiver of counsel without being satisfied that the waiver is knowingly, voluntarily and intelligently made and that the defendant is informed of the possible disadvantages of self-representation. Section 31-16-6. In making this determination the judge must consider such factors as the person's age, education, familiarity with English and the complexity of the crime involved. Faretta v. California, 422 U.S. 806 (1975); §31-16-6. The judge may not force a lawyer upon a criminal defendant when the defendant insists on conducting his or her own defense. U.S. Const. amend VI; N.M. Const. art. II, §14; see also Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). However, the judge may, despite objections from the defendant, appoint "standby counsel" to assist the defendant if and when assistance is requested or if and when the judge finds it necessary to terminate self-representation. The judge may terminate self-representation and appoint counsel for a defendant who intentionally engages in serious and obstructionist misconduct. State v. Rotibi, 117 N.M. 108, 111 (Ct. App. 1994).

E. Entry of Plea

1. After the explanation of rights and an opportunity to consult with counsel (if counsel is present or if counsel is not required or is waived), the defendant is required to plead to the complaint
2. If the defendant refuses to plead or stands mute, the judge enters a plea of not guilty for the defendant. Magis. Ct. R. 6-302(B); Metro. Ct. R. 7-302(B).
3. The plea must be one of the following (Magis. Ct. R. 6-302(A) and 6-501(B); Metro. Ct. R.7-302(A) and 7-501(B)):

   a. Guilty or guilty but mentally ill. Section 31-9-3 (authorizing plea and verdict of guilty but mentally ill).

   b. Not guilty.

   c. Not guilty by reason of insanity.

   d. Nolo contendere (no contest), if permitted by the judge. (This plea has the same legal effect as a plea of guilty for purposes of the action before the court; however, the plea may not be used against the defendant as an admission of guilt in any collateral proceeding.) Rule 11-410; State v. Baca, 101 N.M. 415 (Ct. App. 1984) (holding that the no contest plea alone, without other evidence and without a conviction, is an insufficient basis for revoking defendant’s probation). But see State v. Marquez, 105 N.M. 269, 271 (Ct. App. 1986) (distinguishing Baca and explaining that probation may be revoked on the basis of a conviction entered after a no contest plea).

4. If the defendant pleads not guilty, the case is set for trial as soon as possible.

   a. The judge asks the defendant whether the defendant demands or waives the right to a jury trial.

   b. At any point in the proceedings, the defendant may request to withdraw a not guilty plea and enter a guilty plea or, if permitted, a nolo contendere plea. In determining whether or not to accept the change of plea, the judge applies the standards applicable to an original plea. See §§2.1-3(E)(7)-(9) of this Benchbook regarding standards for guilty pleas.

5. If the defendant pleads not guilty by reason of insanity, or guilty but mentally ill, the judge transfers the case to district court. Section 31-9-1; Magis. Ct. R. 6-507; Metro. Ct. R. 7-507; see also U.J.I. Criminal 14-5101 to 14-5104.

   a. The judge notes on the transcript of criminal proceedings that the case is being transferred to district court because the defendant has pled not guilty by reason of insanity, or guilty but mentally ill to offense(s) within the Magistrate or Metropolitan Court jurisdiction.

   b. The defendant may change a not guilty plea to not guilty by reason of insanity or guilty but mentally ill at any time before the beginning of trial.
   
   c. The defendant's competency may also be raised by the court's own motion at any time during the proceedings. Magis. Ct. R. 6-507; Metro. Ct. R. 7-507.

6. If the defendant pleads nolo contendre, before accepting the plea, the judge must be sure that the plea is voluntarily made, that the defendant realizes that the plea of nolo contendre will have the same effect as a guilty plea in this court, and that the defendant understands the consequences of the plea. Magis. Ct. R. 6-502(C); Metro. Ct. Rule 7-502(C). The defendant should be personally questioned for these purposes, even when represented by counsel. Magis. Ct. R. 6-502(C); Metro. Ct. R. 7-502(C).
7. Before accepting a guilty plea, the judge makes sure that the plea is voluntarily made, that the defendant realizes the consequences of the plea, and that there is a factual basis for the guilty plea. Magis. Ct. R. 6-502(E); Metro. Ct. R. 7-502(E). The defendant should be personally questioned for these purposes, even when represented by counsel. The factual basis that is required for the plea of guilty, but not for the plea of nolo contendere, may be established by simply asking the defendant: "What did you do that makes you believe you are guilty of this offense?" The answer that the defendant gives should establish every element of the offense, including general criminal intent or specific intent.
8. In the case of a nolo contendere plea or a guilty plea, the judge may use a checklist to make sure that the plea is voluntary and otherwise acceptable and proper. Criminal Forms 9-406A (Guilty Plea Proceeding) and 9-407 (Plea of No Contest). Criminal Form 9-406A may be used as a checklist.
9. For a plea of guilty or nolo contendere to be voluntary, it must be of the defendant's own free will, with a full understanding of all rights and possible consequences. The plea must not have been induced by threats or by promises. A plea agreement is not considered a promise that renders the plea involuntary. State v. Lucero, 97 N.M. 346 (Ct. App. 1981); see also Magis. Ct. R. 6-502(C); Metro. Ct. R. 7-502(C). The judge must address the defendant personally, in open court, and ask the defendant:

   a. Is your guilty plea (plea of nolo contendere) voluntary and not the result of force or threats or promises apart from a plea agreement?; and

   b. Is your willingness to plead guilty (nolo contendere) the result of prior discussions between the attorney for the State and either you or your attorney? Magis. Ct. R. 6-502(C); Metro. Ct. R. 7-502(C); see also Criminal Form 9-408 (Plea and Disposition Agreement).

10. The plea agreement should be in writing and presented to the judge for approval, and if it is approved, the judge signs the plea agreement. The plea agreement is filed in the court file. Magis. Ct. R. 6-502(D)(2); Metro. Ct. R. 7-502(D)(2); State v. Lucero, 97 N.M. 346 (Ct. App. 1981).
11. If the judge does not follow the prosecutor's recommendations for sentencing that have been accepted by the defendant, the defendant shall be afforded the opportunity to withdraw a plea of guilty or no contest. Magis. Ct. R. 6-502(D)(4); Metro. Ct. R. 7-502(D)(4); Eller v. State, 92 N.M. 52 (1978).
12. The judge has broad discretion to accept or reject a plea agreement and that discretion will not be disturbed unless abused. Rejection of a plea agreement based upon facts that support the judge’s decision is not an abuse of discretion. State v. Holtry, 97 N.M. 221 (Ct. App. 1981).
13. When the court approves a plea agreement, that includes a limitation on the sentence, it cannot, at a later date, increase the sentence without permitting the defendant to withdraw his plea of guilty or no contest. State v. Sisneros, 98 N.M. 279 (Ct. App. 1981), aff’d in part, rev’d on other grounds, 98 N.M. 201 (1982), aff’d 101 N.M. 679 (1984).
14. After a plea of guilty or nolo contendere has been accepted, the judge may order a pre-sentence investigation and report. Section 31-2-9; see also §2.3 of this Benchbook regarding judgment and sentence.
15. If the judge does not accept a plea of guilty or nolo contendere, a plea of not guilty is entered, and the case is set for trial as soon as possible.
16. If a plea agreement is reached that is confirmed in writing on the standard Plea and Disposition Agreement form, the defendant waives certain rights. State v. Bazan, 97 N.M. 531 (Ct. App. 1982); State v. Gibson, 96 N.M. 742 (Ct. App. 1981); see also Criminal Form 9-408A (Plea and Disposition Agreement). One of the rights waived is the right to appeal unless constitutional invalidities are later alleged. State v. Johnson, 107 N.M. 356 (Ct. App. 1988). The defendant cannot be relieved of one provision of a plea agreement without giving up all of the benefits received in the bargain. State v. Bazan, 97 N.M. 531 (Ct. App. 1982).
17. Conditional Pleas.
    
    a. A defendant who enters into a conditional plea agreement pleads guilty or no contest, but reserves the right to appeal “a significant pretrial issue . . . in a case in which conviction seems certain unless the defendant prevails on the pretrial issue.” State v. Celusniak, 2004-NMCA-070, ¶7, 135 N.M. 728.
    
    b. Conditional pleas are permissible in the magistrate and metropolitan courts. Celusniak, 2004-NMCA-070, ¶8; Metro. Ct. R. 7-502(A)(3) (conditional pleas allowed in cases tried on the record).
    
    c. A defendant enters a conditional plea by:
        i. preserving the error through a pretrial motion;
        ii. obtaining the consent of the prosecution; and
        iii. obtaining the court’s approval.
    
    d. If the defendant prevails on appeal to the district court and the State does not appeal to the Court of Appeals, the magistrate or metropolitan court must give the defendant an opportunity to withdraw the original plea. Celusniak, 2004-NMCA-070, ¶11.