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

2.6-1 General

A. Right to Release; Purpose of Conditions

1. The right to bail is granted by the New Mexico Constitution to any arrested person except for a person charged with a capital offense where the proof of guilt is evident or the presumption of guilt is great. N.M. Const. art. II, §13. The district court may deny bail for a period of sixty days after the incarceration of the defendant by an order entered within seven days after the incarceration, in the following instances:

   a. the defendant is accused of a felony and has previously been convicted of two or more felonies, within the state, which felonies did not arise from the same transaction or a common transaction with the case at bar;

   b. the defendant is accused of a felony involving the use of a deadly weapon and has a prior felony conviction, within the state.

2. Although an arrested person has a right to release, certain restrictions or requirements for release may be imposed. Mag. Ct. R. 6-401; Metro. Ct. R. 7-401.
3. Pending trial, a person shall be released on his personal recognizance or upon the execution of an unsecured appearance bond in an amount set by the court, subject to other release conditions, unless the court determines that such release will not reasonably assure the appearance of the person as required. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A). If the court determines that the above measures are not sufficient to secure such appearance or will endanger the safety of any other person or the community, in addition to any release conditions imposed, the court shall order release subject to the first of the following types of secured bonds that will reasonably assure the defendant’s appearance and the safety of another and or the community.

   a. The execution of a bail bond in a specified amount executed by the person and secured by a deposit of cash of 10% of the amount set for bail or secured by a greater or lesser amount as is reasonably necessary to assure appearance of the required individual. The cash deposit may be made by a paid licensed surety provided such paid surety also executes a bail bond for the full amount of the bail set. Or,

   b. The execution of a bail bond by the defendant or by unpaid sureties in the full amount of the bond and the pledging of real property. Magis. Ct. R. 6-401(A)(2); Metro. Ct. R. 7-401(A)(2). Or,

   c. The execution of a bail bond with licensed sureties or execution by the person of an appearance bond and deposit with the clerk, in cash, of 100% of the amount of bail set. Magis. Ct. R. 6-401(A)(3); Metro. Ct. R. 7-401(A)(3).

4. A person may be detained without bail upon motion by the State and a full hearing to determine if bail may be properly denied. Magis. Ct. R. 6-401(E); Metro. Ct. R. 7-401(E).
5. Release and conditions of release may be broadly categorized as follows:

   a. release on own recognizance, that is, release based on the defendant's promise to appear;

   b. release subject to bond requirements;

   c. release subject to conditions in addition to recognizance or bond requirements. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A).

6. Release on own recognizance without any other conditions is the least restrictive form of release.
7. There are two reasons for imposing bond and conditions of release

   a. The primary purpose is to assure the appearance of the arrested person at court proceedings.

   b. The secondary purpose is to restrict the activities of the defendant if there is a danger that the person will unlawfully interfere with the orderly administration of justice or endanger the safety of any other persons or the community. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A).

8. Only the bond or other conditions of release necessary to assure the appearance of the defendant, to prevent interference with the administration of justice, or to protect the safety of others or the community should be imposed.
9. Every person at the first appearance shall be ordered released pending trial, on his or her own recognizance or upon execution of an unsecured appearance bond in an amount set by the court, unless the court determines, in the exercise of its discretion, that such release will not reasonably assure the appearance of the person and additional conditions of release are necessary. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A).
10. The court has great discretion in setting the condition or combination of conditions that will assure the appearance of the defendant, the orderly administration of justice, and the safety of others. Each defendant must be considered individually.

B. Factors to be Considered Prior to Setting Conditions of Release
The following factors must be considered prior to determining the type of bail and which conditions of release will reasonably assure the appearance of the defendant and the safety of any other person and the community:

1. the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
2. the weight of the evidence against the person;
3. the history and characteristics of the person, including:

   a. the person's character and physical and mental condition;

   b. the person's family ties;

   c. the person's employment status, employment history and financial resources;

   d. the person's past and present residences;

   e. the length of residence in the community;

   f. any facts tending to indicate that the person has strong ties to the community;

   g. any facts indicating the possibility that the person will commit new crimes if released;

   h. the person's past conduct, history relating to drug or alcohol abuse, criminal history and record concerning appearance at court proceedings; and

   i. whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal or completion of an offense under federal, state or local law;

4. the nature and seriousness of the danger to any person or the community that would be posed by the person's release; and
5. any other facts tending to indicate the person is likely to appear. Magis. Ct. R. 6-401(B); Metro. Ct. R. 7-401(B).

C. Conditions of Release to Assure the Orderly Administration of Justice (Magis. Ct. R. 6-401(C); Metro. Ct. R. 7-401(C))
The court may set any of the following conditions of release to assure the orderly administration of justice:

1. the condition that the person not commit a federal, state or local crime during the period of release; and
2. the least restrictive of, or combination of, the following conditions the court finds will reasonably assure the appearance of the person as required, the safety of any other person and the community and the orderly administration of justice:

   a. a condition that the person remain in the custody of a designated person who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the court that the person will appear as required and will not pose a danger to the safety of any other person or the community;

   b. a condition that the person maintain employment, or, if unemployed, actively seek employment;

   c. a condition that the person maintain or commence an educational program;

   d. a condition that the person comply with restrictions on personal associations, place of abode or travel specified by the court;

   e. a condition that the person avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

   f. a condition that the person report on a regular basis to a designated pretrial services agency or other agency agreeing to supervise the defendant;

   g. a condition that the person comply with a specified curfew;

   h. a condition that the person refrain from possessing a firearm, destructive device or other dangerous weapon;

   i. a condition that the person refrain from excessive or any use of alcohol and any use of a narcotic drug or other controlled substance without a prescription by a licensed medical practitioner;

   j. a condition that the person undergo available medical, psychological or psychiatric treatment, including treatment for drug or alcohol dependency and remain in a specified institution if required for that purpose;

   k. a condition that the person submit to a urine analysis or alcohol test upon request of a person designated by the court;

   l. a condition that the person return to custody for specified hours following release for employment, schooling, or other limited purposes;

   m. a condition that the person satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community. Criminal Form 9-302 (Order Setting Conditions of Release).

D. Release Proceedings

1. Designee

   a. A bail designee is a person who is appointed by the judge to act on behalf of the judge in bail matters when the judge is unavailable. Section 31-3-1; Magis. Ct. R. 6-401(J); Metro. Ct. R. 7-401(J).

   b. A designee has limited powers in bail matters. A designee may not hold a detention hearing, review conditions of release previously imposed or amend conditions of release previously imposed. Magis. Ct. R. 6-401(J); Metro. Ct. R. 7-401(J).

   c. A person may not serve as a bail designee if that person or his or her spouse is related within the second degree of blood or marriage to a paid surety who is licensed to sell property or corporate bonds in this state or if employed by a jail or detention facility. Magis. Ct. R. 6-401(J); Metro. Ct. R. 7-401(J).

   d. Notice of appointment of a designee should be given to the law enforcement authorities, the district attorney, and the county detention center so that the defendant may be taken before the designee without delay after arrest.

   e. Any person who is released by the designee on their own recognizance or who meets the conditions of release imposed by the designee is told by the designee to appear before the judge for a first appearance (felony charge) or arraignment (misdemeanor charge).

   f. The designee issues a release order and delivers the original of the order to the judge along with the original of any appearance or bail bond which may have been executed and the original of the record of responses to questions at hearing to determine indigency; the designee gives a copy of the release order to the defendant. Criminal Forms 9-302 (Order Setting Conditions of Release and Appearance Bond) and 9-303 (Order Setting Conditions of Release and Bail Bond).

2. First Appearance; Arraignment

   a. When the defendant appears for a first appearance or arraignment, the judge may revise or modify the terms and conditions of release set by the designee.

   b. If the arrested person was not taken before a designee or is still in custody, the judge issues a release order containing any conditions of release, including bond requirements. Magis. Ct. Rules 6-401(F) & (G), 6-403, and 6-501(E); Metro. Ct. Rules 7-401(F) & (G), 7-403, and 7-501(E); See also Magis. Ct. R. 6-203; Metro. Ct. R. 7-203.

3. Additional Conditions of Release.
   A designee or the judge may impose additional conditions to assure the orderly administration of justice. These conditions are imposed at the same time as the imposition of conditions to assure appearance. One release order covering both types of conditions is used. Criminal Forms 9-302 (Order Setting Conditions of Release and Appearance Bond) and 9-303 (Order Setting Conditions of Release -- Bail Bond).
4. Judicial Hearing on Conditions Imposed by Designee
   The judge may impose the additional conditions at a new hearing, after the original release order has been issued by the designee or the judge.

   a. The judge may issue an amended release order, containing only the additional conditions. The judge should note on the release order that the new conditions are in addition to the previous conditions which remain in effect, and that they are for the purpose of preventing interference with the orderly administration of justice.

   b. If the additional conditions are inconsistent with the previous conditions, the judge issues a new release order.

   c. If the defendant is unable to meet the additional conditions, he or she is entitled to a hearing to review the conditions of release.

5. Evidence.
   In all hearings relating to bail, the court may receive and act on credible hearsay, as the Rules of Evidence do not apply to bail matters. Evidence Rule 11-1101(D).
6. Change of Conditions of Release

   a. At any time, upon motion of a party or upon the court's own motion, the judge may have the defendant arrested and brought to court to amend the conditions of release or amount of bail set. Magis. Ct. R. 6-403(A); Metro. Ct. R. 7-403(A). A defendant who is detained after the new conditions or bail is imposed has the right to a hearing to review the additional or different conditions of release.

   b. A person may petition the district court for release if new or additional conditions of release are imposed and after twenty-four (24) hours from the time of imposition of the new conditions the person continues to be detained due to inability to meet the new conditions of release or the person is ordered released on a condition which requires him or her to return to custody after specified hours. Magis. Ct. R. 6-403(B)(2); Metro. Ct. R. 7-403(B)(2).

   c. A person who is unable to meet the conditions of release and continues to be detained in custody for longer than twenty-four (24) hours is entitled to have the metropolitan court judge or magistrate review the conditions of release or the amount of bond. The court that set the conditions of release shall conduct the review. Magis. Ct. R. 6-401(F); Metro. Ct. R. 7-401(F).

   d. If the conditions or amount of bail resulting in custody or partial release are not removed, the judge must enter on the release order the reason for continuing the conditions.

   e. If at any time the judge increases the amount of the bond previously imposed, the existing bond may be supplemented by a new bond or cash deposit to make up the new amount that is required by the court.

7. Petition to District Court; Felonies

   a. A person who is charged with a felony and who has not been bound-over to the district court may file a petition for release with the district court. Magis. Ct. R. 6-401(I); Metro. Ct. R. 7-401(I).

   b. A petition for release is a request that the district court review and change the conditions of release imposed by the court of limited jurisdiction.

   c. After a petition for release has been filed in district court, the court of limited jurisdiction has no jurisdiction to release the accused.

   d. Any conditions of release or bail amount previously imposed by the court of limited jurisdiction continue in effect pending a determination by the district court.

   e. If the district court does not act on the petition within forty-eight (48) hours, any conditions imposed or amount of bail set by the court of limited jurisdiction continue in effect.

   f. If the district court modifies the conditions of release or amount of bail imposed by the court of limited jurisdiction, the judge may no longer act on release matters relating to the defendant.

E. Release Forms

1. At the time of release or setting of conditions, the judge or designee issues the appropriate order and bond to serve as a record of the release and any conditions that are imposed. Magis. Ct. R. 6-401; Metro. Ct. R. 7-401; Criminal Forms 9-302 (Order Setting Conditions of Release and Appearance Bond) and 9-303 (Order Setting Conditions of Release, Bail Bond).

   a. The original is filed in the court, a copy is sent to the county detention center and a copy is provided to the defendant or the defendant's attorney or surety.

   b. If the original order is amended or modified, a new release order is issued.

2. The judge may use the record of responses to questions at hearing to determine indigency in order to determine release and conditions of release. Criminal Form 9-403 (Eligibility Determination for Indigent Defense Services).
3. The judge or designee may orally question the defendant, the defendant's attorney, the arresting officer or other law enforcement officer, and/or the prosecutor. Magis. Ct. R. 6-401(B); Metro. Ct. R. 7-401(B); see also §2.6-1(B) of this Benchbook regarding factors to be considered in determining conditions of release.
4. If the defendant is to be released on recognizance, the judge must:

   a. write on the release form the time and place for the next appearance of the defendant, and make the defendant promise to appear at such a time and place; or

   b. if the time and place of the next appearance are not known, make the defendant promise to appear when notified. Compare State v. Easterling, 89 N.M. 486, 553 P.2d 1293 (Ct. App. 1976).

5. If the judge does not so notify or order the defendant, the defendant cannot be charged with failure to appear if he or she does not appear.

F. Failure to Comply with Conditions of Release

1. The court may, on its own motion or the prosecution’s motion, issue a bench warrant or may notify the defendant to appear for a review of the conditions of release. Magis. Ct. R. 6-403; Metro. Ct. R. 7-403.
2. Upon review, the judge may:

   a. Without a hearing, impose any of the conditions authorized under court rules, including conditions to assure the orderly administration of justice. See §2.6-1(C) of this Benchbook regarding conditions to assure the orderly administration of justice. The defendant is entitled to a hearing if he or she cannot meet the new conditions of release or is granted partial release. Magis. Ct. R. 6-401(A) & (G) and 6-403(B); Metro. Ct. R. 7-401(A) & (G) and 7-403(B). Or,

   b. After a hearing, revoke bail or recognizance if the defendant has been indicted on a serious crime allegedly committed while the defendant was on release on a prior charge. Magis. Ct. Rules 6-401(C) and 6-403; Metro. Ct. Rules 7-401(C) and 7-403.

3. If new conditions are imposed to assure the orderly administration of justice or if bail or recognizance is revoked, the defendant is entitled to a review of the conditions or the revocation. Magis. Ct. R. 6-403(F); Metro. Ct. R. 7-403(F).

G. Failure to Appear

1. If a person fails to appear as required in the conditions of release, the judge may do one of the following. Section 31-3-2(A); Magis. Ct. R. 6-403(A) and 6-406(C); Metro. Ct. R. 7-403(A) and 7-406(C).

   a. Issue a warrant for the arrest of the defendant.

   b. Revoke the conditions of release. And

   c. After Providing notice and a hearing, declare forfeiture of the bail if there is a breach of a condition of the bond. See Magis. Ct. R. 6-109 and Metro. Ct. R. 7-109 regarding presence required of the defendant at court proceedings; see also State v. United Bonding Ins. Co., 81 N.M. 154, 464 P.2d 884 (1970); State v. Barboa, 64 N.M. 5, 322 P.2d 337 (1958).

2. If a person willfully fails to appear as required, the person may be charged with:

   a. a fourth degree felony if released on a felony charge, or

   b. a petty misdemeanor if released on a misdemeanor or petty misdemeanor charge. Section 31-3-9.

3. A person arrested for failure to appear is entitled to bail on the new charge. N.M. Const. art. II, §13; Magis. Ct. R. 6-401; Metro. Ct. R. 7-401.

H. Forfeiture and Exoneration of Bond

1. A bail bond may be automatically exonerated by the magistrate or metropolitan court:

   a. after 12 months if the crime is a felony and no charges have been filed in the district court;

   b. after 6 months if the crime is a misdemeanor or petty misdemeanor and no charges have been filed;

   c. at any time prior to entry of judgment of default on the bond if the district attorney approves; or

   d. upon surrender of the defendant to the court by an unpaid surety. Magis. Ct. R. 6-406(A); Metro. Ct. R. 7-406(A).

2. If a person fails to appear as required by the conditions of release, the judge may declare forfeiture of bond. Magis. Ct. R. 6-406(C); Metro. Ct. R. 7-406(C); Criminal Form 9-307 (Notice of Forfeiture and Order to Show Cause).
3. If a forfeiture is declared, a Notice of Forfeiture and Order to Show Cause is served on the surety or on the clerk of the court. Criminal Form 9-307 (Notice of Forfeiture and Order to Show Cause). If served on the clerk, the clerk shall mail copies of the notice to the sureties at their last known address. Magis. Ct. R. 6 407; Metro. Ct. R. 7-407 (sureties on bail bonds appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served); see also §31-3-2(D). A hearing is held thirty (30) or more days after the service of the notice. Magis. Ct. R. 6-406(C); Metro. Ct. R. 7-406(C).
4. Prior to entry of judgment, the judge after a hearing may set aside, in whole or in part, the declaration of forfeiture:
5. Upon a showing of good cause why the defendant did not appear as required. Criminal Form 9-308 (Order Setting Aside Bail Bond Forfeiture) (setting forth two types of "good cause:" incarceration and hospitalization. Other reasons for "good cause" may be shown). Or,
6. If the defendant is surrendered into custody prior to entry of judgment of default on the bond. Magis. Ct. R. 6-406; Metro. Ct. R. 7-406; see also Criminal Form 9-308 (Order Setting Aside Bail Bond Forfeiture).
7. Upon forfeiture, the defendant (in the case of an appearance bond) or the surety (in the case of a bail bond) is required to pay the amount of the bond. Criminal Form 9-307 (Notice of Forfeiture and Order Show Cause).
8. After entry of the default judgment on the bond, the sureties have ten (10) days to make payment to the court. Criminal Form 9-309 (Default Judgment on Bond). After payment of the forfeited bail bond and deposit of the proceeds into the state treasury for the current school fund, no other refund of the bond is permitted by law. N.M. Const. art. XII, §4.

   a. There is some confusion over the legality of refunding the bond. Under the New Mexico Constitution, after payment of the funds into the state treasury, no refund can occur. See N.M. Const. art. XII, §4, and art. IV, §§25, 30 and 32; see also State ex. rel. Callaway v. Axtell, 74 N.M. 339, 393 P.2d 451 (1964); New Mexico State Bd. of Pub. Accountancy v. Grant, 61 N.M. 287, 291, 299 P.2d 464; McAdoo Petroleum Corp. v. Pankey, 35 N.M. 246, 294 P. 322 (1930). Similarly, court rules provide that, "[n]otwithstanding any provision of law, no other refund of the bail bond shall be allowed." Magis. Ct. R. 6-406(E); Metro. Ct. R. 7-406(E). Despite these Constitutional provisions and the court rules, the legislature has created numerous suspense funds for payment of refunds (such as tax refunds). The legislature has not created a suspense fund for payment of bail bond refund. Compare State v. Ramirez, 97 N.M. 125, 637 P.2d 556 (1981) (explaining that courts of limited jurisdiction may consider a claim for refund of a forfeited bond). Note, though, that Ramirez predates Rules 6-406 and 7-406 and only involved jurisdiction to hear a motion; it did not involve the payment of a refund from the state treasury or current school fund without an appropriation.

I. Misdemeanors: Continuation and Review of Release (Magis. Ct. R. 6-402 and 6-703(H) & (I); Metro. Ct. R. 7-402 and 7-703(H) & (I))

1. Normally, a person released pending trial continues on release under the same conditions during the trial, pending imposition of sentence and pending the outcome of any appeal. However, the judge may determine that other conditions of release are necessary for the following reasons:

   a. to assure the defendant's presence during trial;

   b. to assure that the conduct of the defendant will not interfere with the orderly administration of justice;

   c. if the surety has been released or discharged after sentencing. See §2.6-2(G) of this Benchbook regarding discharge of surety.

2. After imposition of a judgment and sentence, upon defendant's motion, the judge must fix conditions of release pending appeal or motion for a new trial. Magis. Ct. R. 6-401(F) & (G), 6-402(C), and 6-703(H) & (I); Metro. Ct. R. 7-401(F) & (G), 7-402(C), and 7-703(H) & (I). In setting the conditions, the judge may consider the fact that there was a conviction and the length of sentence imposed.
3. If the judge imposes other conditions of release, the defendant is entitled to a hearing if he or she cannot meet the conditions of release or is granted partial release. Magis. Ct. R. 6-403; Metro. Ct. R. 7-403.
4. If the judge increases the amount of bond previously imposed and if the original bond is still in effect (because the surety has not been discharged), a separate bond is furnished in the amount additionally required. If the judge does not increase the bond amount and the original bond is still in effect, a new bond is not necessary. Magis. Ct. R. 6-703(H); Metro. Ct. R. 7-703(H).