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

2.1-6 Dismissal

A. Definitions

1. Dismissal with prejudice means that the dismissed offense may not be charged again in any court.
2. Dismissal without prejudice does not prevent the prosecution from again charging the defendant with the same offense; the prosecution is free to bring another action.

B. Voluntary Dismissal by Prosecution (Magis. Ct. R. 6-506(A); Metro. Ct. R. 7-506A; Criminal Form 9-415 (Notice of Dismissal of Criminal Complaint))

1. The prosecution may file with the court a notice of dismissal at any time before trial.
2. Dismissal is without prejudice unless otherwise stated in the notice of dismissal.
3. The judge signs the notice of dismissal and the original is filed with the court; the prosecution is responsible for serving the notice of dismissal on the defendant.
4. A specific count or charge in the complaint may be dismissed without dismissing the entire complaint. The notice of dismissal form is modified to indicate the count or charge that is being dismissed.

C. Dismissal for Failure to Prosecute (Magis. Ct. R. 6-506 (unamended), 6-506 (amended), and 6-506A; Metro. Ct. R. 7-506 (unamended), 7-506 (amended), and 7-506A; Criminal Form 9-414 (Order Dismissing Criminal Complaint with Prejudice)

1. For cases filed on or After August 1, 2004:
   
   a. In the Magistrate and Metropolitan Courts, if trial does not begin within the following time limits, the court shall dismiss the criminal complaint or uniform traffic citation with prejudice. Magis. Ct. R. 6-506(B) & (C) (amended); Metro. Ct. R. 7-506(B) & (C) (amended).
   
       i. Criminal trials must begin within 182 days after the latest of the following events:
   
           • The date of arraignment or the filing of a waiver of arraignment by defendant. Magis. Ct. R. 6-506(B)(1) (amended); Metro. Ct. R. 7-506(B)(1) (amended).
   
           • If a competency evaluation has been ordered, the date an order is filed finding the defendant competent to stand trial. Magis. Ct. R. 6-506(B)(2) (amended); Metro. Ct. R. 7-506(B)(2) (amended).
   
           • If a mistrial is declared, the date the mistrial order is filed. Magis. Ct. R. 6-506(B)(3) (amended); Metro. Ct. R. 7-506(B)(3) (amended).
   
           • In the event of remand from an appeal, the date the mandate or order is filed in the Magistrate or Metropolitan Court disposing of the appeal. Magis. Ct. R. 6-506(B)(4) (amended); Metro. Ct. R. 7-506(B)(4) (amended).
   
           • If the defendant is arrested for or surrenders in this state for failure to appear, the date of arrest or surrender. Magis. Ct. R. 6-506(B)(5) (amended); Metro. Ct. R. 7-506(B)(5) (amended).
   
           • If the defendant is arrested or surrenders in another state for failure to appear, the date the defendant is returned to New Mexico. Magis. Ct. R. 6-506(B)(6) (amended); Metro. Ct. R. 7-506(B)(6) (amended).
   
           • If the defendant has been placed in a preprosecution program, but fails to comply with such program, the date a notice is filed that the preprosecution program has been terminated. Magis. Ct. R. 6-506(B)(7) (amended); Metro. Ct. R. 7-506(B)(7) (amended).
   
   b. The time limits for beginning trial listed above may be extended:
   
       i. Upon the filing of a written waiver by the defendant and approval of the court. Magis. Ct. R. 6-506(C)(1) (amended); Metro. Ct. R. 7-506(C)(1)(amended).
   
       ii. Upon motion of the defendant, for good cause and with the approval of the court, the court may grant an extension not exceeding thirty days. Magis. Ct. R. 6-506(C)(2) (amended); Metro. Ct. R. 7-506(C)(2) (amended).
   
       iii. Upon stipulation of the parties and approval of the court, for a period not exceeding sixty days. Magis. Ct. R. 6-506(C)(3) (amended); Metro. Ct. R. 7-506(C)(3) (amended).
   
       iv. Upon withdrawal of a plea or rejection of a plea for a period not exceeding sixty days. Magis. Ct. R. 6-506(C)(4) (amended); Metro. Ct. R. 7-506(C)(4) (amended).
   
        v. Upon a determination by the court that exception circumstances exist that were beyond the control of the prosecution or the court and that prevented the case from being heard within the time period. All extensions granted pursuant to this exception may not exceed thirty days in the aggregate. Magis. Ct. R. 6-506(C)(5) (amended); Metro. Ct. R. 7-506(C)(5) (amended).
   
   c. If the judge determines, after a hearing, that the defendant is responsible for the failure of the court to commence trial, the judge must not dismiss the complaint for failure to prosecute.
   
   d. If the defendant contributes to the delay by motion for continuance but there is additional delay for which the defendant is not responsible, the court may add to the six-month period the length of the delay caused by the defendant. State v. Bishop, 108 N.M. 105 (Ct. App. 1988). If after weighing all the factors that caused delay, the court determines that the defendant is not responsible for failure to commence trial within six months, the charges shall be dismissed with prejudice. State v. Lucero, 108 N.M. 548 (Ct. App. 1989).
   
   e. A dismissal for failure to prosecute is with prejudice.
   
   f. Failure to strictly follow pretrial procedures is generally not in itself grounds for dismissal of a criminal complaint. See §2.1-2 and §2.1-3 of this Benchbook regarding pretrial procedures.
2. For cases Filed Before August 1, 2004:
   
   a. In the Magistrate and Metropolitan Courts, the judge may dismiss a citation or complaint if:
   
       i. The charge has been pending for 182 days from the date or arrest or the filing of the complaint or citation, whichever is later; and
   
       ii. The trial has not been commenced by the court; and
   
       iii. The defendant was not responsible for the delay. Magis. Ct. R. 6-506(E) (unamended); Metro. Ct. R. 7-506(E) (unamended).
   
   b. If the judge determines, after a hearing, that the defendant is responsible for the failure of the court to commence trial, the judge must not dismiss the complaint for failure to prosecute. Magis. Ct. R. 6-506(E) (unamended); Metro. Ct. R. 7-506(E) (unamended).
   
   c. If the defendant contributes to the delay by motion for continuance but there is additional delay for which the defendant is not responsible, the court may add to the 182-day period the length of any delay caused by the defendant. State v. Bishop, 108 N.M. 105 (Ct. App. 1988). If, after weighing all the factors that caused the delay, the court determines that the defendant is not responsible for the failure to commence trial within 182 days, the charges shall be dismissed with prejudice. State v. Lucero, 108 N.M. 548 (Ct. App. 1989).
   
   d. A dismissal for failure to prosecute is with prejudice. Magis. Ct. R. 6-506(E) (unamended); Metro. Ct. R. 7-506(E) (unamended).
   
   e. Failure to follow pretrial procedures strictly is generally not grounds for dismissal of a criminal complaint. See §§2.1-2 & -3 of this Benchbook regarding pretrial procedures.

D. Refiled Complaints

1. For Cases Filed on or After August 1, 2004:
   
   a. If a citation or complaint is dismissed without prejudice and later refiled, the refiled complaint shall be clearly captioned “Refiled Complaint” and shall include the following:
   
       i. The court in which the original charges were filed;
   
       ii. The case file number of the dismissed charges;
   
       iii. The name of the assigned judge at the time the charges were dismissed; and,
   
       iv. The reason the charges were dismissed. Magis. Ct. R. 6-506A(C) (amended); Metro. Ct. R. 7-506A(C) (amended).
   
   b. Procedure after refile. The refiled case shall be treated as a continuation of the earlier case and the trial on the refiled charges shall begin within the unexpired time for trial, unless the court, after notice and a hearing, finds that the refiled complaint should not be treated as a continuation of the original case. Magis. Ct. R. 6-506A(D) (amended); Metro. Ct. R. 7-506A(D) (amended).
2. For Cases Filed Before August 1, 2004:
   
   a. If a citation or complaint is dismissed without prejudice and the charges are later refiled, at the time of refilling, the prosecutor shall notify the court of:
   
       i. The court in which the original charges were filed;
   
       ii. The case file number of the dismissed charges;
   
       iii. The name of the assigned judge at the time the charges were dismissed; and
   
       iv. The reason the charges were dismissed. Magis. Ct. R. 6-506(C) (unamended); Metro. Ct. R. 7-506(C) (unamended).
   
   b. Procedure after refile: The refiled case shall be treated as a continuation of the earlier case. Therefore, the trial on the refiled charges shall begin within the unexpired time for trial in the earlier case, unless the court, after notice and a hearing, finds that the refiled complaint should not be treated as a continuation of the original case. Magis. Ct. R. 6-506(D) (unamended); Metro. Ct. R. 7-506(D) (unamended).