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

2.6-2 Personal Recognizance and Bonds

A. Personal Recognizance

1. The defendant must be ordered released on own recognizance or upon execution of an unsecured appearance bond unless the court determines that conditions of release will not reasonably assure the appearance of the defendant. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A).
2. If a person is released on recognizance, no bail is required. The defendant is required to sign an appearance bond prior to release. Criminal Form 9-302 (Order Setting Conditions of Release and Appearance Bond) (to be used when the defendant is released on an unsecured appearance bond).
3. Non-bond conditions (such as restrictions on travel, association, etc.) may be imposed as part of release on own recognizance as well as release on bond. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A); Criminal Form 9-302 (Order Setting Conditions of Release and Appearance Bond).

B. Bonds: General

1. If the court determines that release on personal recognizance or upon execution of an unsecured appearance bond will not reasonably assure the appearance of the person or will endanger the safety of any other person or the community, the court orders the pretrial release of the defendant in the priority set forth in Section 2.6-1 of this Benchbook. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A).
2. The type and amount of bond are determined by the judge or designee; additional conditions may also be imposed. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A).
3. An original and one or two copies of the bond are required.

   a. The original is filed with the court.

   b. One copy is the defendant's copy.

   c. If it is a bail bond, a copy is given to the surety.

C. Unsecured Appearance Bond
An unsecured appearance bond requires the defendant to pay the full amount of the bond if he or she fails to appear as required or fails to comply with any other conditions of release that may be imposed. Criminal Form 9-302 (Order Setting Conditions of Release and Appearance Bond).

D. Appearance Bond: Cash Deposit

1. As a condition of release, the defendant may be required to execute an appearance bond and deposit with the court a percentage of the amount of the bond. Criminal Form 9-302 (Order Setting Conditions of Release and Appearance Bond).
2. The amount of bond and the cash deposit requirement are established by the judge. The percentage of the bond amount is left to the discretion of the judge or designee.
3. The deposit must be made in cash or an approved cash substitute, such as a money order or cashier's check.
4. When the conditions of the bond have been performed and the defendant is discharged from all obligations, the court returns the amount that was deposited to the person to whom the receipt was issued, or to another upon written assignment by the person to whom the receipt was issued. Administrative Office of the Courts Form 1.20 (Cash Bond Assignment and/or Conversion Form). (This form may be used for an assignment.)

E. Appearance Bond: 100 Percent Cash Deposit (Criminal Form 9-302 (Order Setting Conditions of Release and Appearance Bond))

1. As a condition of release, the defendant may be required to execute an appearance bond and deposit with the court the full amount of the bond.
2. The deposit must be made in cash or an approved cash substitute.

F. Bail Bond (Criminal Form 9-303 (Order Setting Conditions of Release, Bail Bond))

1. As a condition of release, the defendant may be required to obtain a bail bond.
2. A bail bond differs from an appearance bond in that a bail bond is executed by a surety or sureties on behalf of the defendant; a surety agrees to pay the amount of bond if the defendant fails to comply with the conditions of the bond or any additional conditions of release.
3. Bail bondsmen and uncompensated sureties, such as friends and family members, are allowed to execute bail bonds.
4. Uncompensated sureties are usually friends or relatives of the arrested person. Magis. Ct. R. 6-401(A); Metro. Ct. R. 7-401(A). They can pledge unencumbered real property to cover the amount of the bond, or can sign as a surety or as a cosigner on an unsecured or secured bond. A property bond of an unpaid surety shall be signed by the owner(s) of the real property as surety for the bond. The affidavit must contain a description of the that justifies the bond and any encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by the surety remaining undischarged, and a statement that the surety is a resident of New Mexico, and owns real property in this state that has an unpledged and unencumbered net value equal to the amount of the bond. Proof may be required of the matters set forth in the affidavit. Magis. Ct. R. 6-401A; Metro. Ct. R 7-401A.
5. The terms "compensated surety," "corporate surety," and "paid surety" are used to refer to bail bondsmen and corporations authorized to execute bail bonds. Compare Section 59A-51-2. Any bond submitted to the court by a paid surety must be signed by a person who is licensed under the Bail Bondsmen Licensing Law and who has timely paid all outstanding default judgments on forfeited surety bonds. If a property bond is submitted by a compensated surety, the bail bondsman or solicitor must be licensed as a property bondsman and must file, in each court in which he posts bonds, an irrevocable letter of credit in favor of the court, a sight draft made payable to the court and a copy of his license. Magis. Ct. R. 6-401B; Metro. Ct. R. 7-401B.
6. If the surety is not licensed as a bail bondsman or able to show other authorization to execute bail bonds, the surety is assumed to be an uncompensated surety.
7. Normally, when a bail bond is required, no money is deposited with the court. However, the bail bondsman charges the defendant a certain percentage of the amount of the bond plus costs.
8. A paid surety who is licensed under the Bail Bondsman Licensing Law may deposit cash with the court instead of a surety or property bond provided that the paid surety executes an appearance bond. Magis. Ct. R. 6-401B(A); Metro. Ct. R. 7-401B(A).
9. If real property is submitted as bond by a compensated surety, the solicitor or bondsman must be licensed as a property bondsman and must file in each court in which he posts bonds an irrevocable letter of credit in favor of the court and a sight draft made payable to the court along with a copy of his license. Magis. Ct. R. 6-401B(B) & (C); Metro. Ct. R. 7-401B(B) & (C).

G. Bail Bond: Discharge of Surety

1. Uncompensated Surety

   a. An uncompensated surety desiring to be discharged from the obligations of a bail bond before a final disposition of the charges against the defendant may:

   i. arrest and take the defendant to the office of the sheriff in the county where the action is pending;

   ii. deliver to the sheriff a certified copy of the release order and the bail bond; and

   iii. apply in writing to the court for a written order discharging the surety from the obligations of the bail bond. Section 31-3-3(C).

   b. Upon satisfactory proof that the surety has complied with the three requirements listed above, the judge shall enter a written order discharging the surety from liability under the bond.

2. Compensated Surety

   a. The judge shall order the discharge of a paid surety if one or more of the following conditions are present:

   i. there has been a final disposition of all charges against the accused;

   ii. the accused is dead;

   iii. circumstances have arisen which the surety could not have foreseen at the time of becoming a paid surety for the accused; or

   iv. The contractual agreement (the bond and its conditions) between the surety, the principal (arrested person), and the State has been terminated. Section 31-3-4(E). Compare §2.6.1(H) of this Benchbook (Forfeiture and Exoneration of Bond).

   b. A compensated surety desiring to be discharged from bond obligations applies in writing to the court for a written order discharging the surety from the obligations of the bail bond, setting forth the grounds for discharge.

   c. If the motion is based on unforeseen circumstances or on a claim that the contract of the bond has been terminated, the surety must return the defendant to custody. In such cases, the surety:

   i. Arrests and returns the defendant to custody. Section 31-3-4(B). And

   ii. Delivers to the custodial authorities a certified copy of the release order and the bail bond, at the time of the return of the defendant to custody. Section 31-3-4(C).

H. Bonds: Forfeiture

1. Obligation of Principal and Sureties

   a. In case of forfeiture the defendant and the uncompensated surety or cosigner are jointly and severally liable for the full amount of an appearance bond. The defendant surety or cosigner receives credit for any cash deposited, because it is also forfeited.

   b. A bail bond is a bond to assure appearance that requires a surety. Criminal Form 9-304 (Bail Bond). A bail bond is signed by the defendant, as principal, and by one or more sureties. In case of forfeiture, the defendant and all sureties are jointly and severally liable for the penal sum of the bond. Criminal Form 9-304 (Bail Bond). The government can collect the penal sum only once, but the government is not required to get a portion from the defendant, another portion from a surety, and so forth. The full amount can be collected from anyone obligated on the bond, and in that case the surety who pays must look to the defendant, or other sureties, for any reimbursement.

2. Bond Exoneration
   Unless the court orders otherwise, a bond is automatically exonerated after twelve (12) months if the crime is a felony and no charges are filed in the district court, after six (6) months if the crime is a misdemeanor or petty misdemeanor and no charges have been filed, or at any time before entry of judgment or default on the bond if the prosecution approves. Magis. Ct. R. 6-406(A); Metro. Ct. R. 7-406(A). An unpaid surety bond may also be exonerated upon surrender of the defendant. Magis. Ct. R. 6-406(A)(4); Metro. Ct. R. 7-406(A)(4).
3. Forfeiture (Section 31-3-2)
   If the defendant fails to appear as required, the judge may declare a forfeiture of the bail. Section 31-3-2(A)(2). If the court declares a forfeiture, it must:

   a. Declare the forfeiture at the time of nonappearance;

   b. Give written notice of the forfeiture to the surety within four working days of the declaration;

   c. Include a statement that the defendant was required to appear, that due notice was given and that the defendant failed to appear as required; and

   d. Issue a bench warrant for the defendant’s arrest.

   e. The court is required to hold a hearing on the forfeiture at least 30 days after the notice is served. Section 31-3-2(A)(2); State v. United Bonding Ins. Co., 81 N.M. 154, 464 P.2d 884 (1970); and State v. Barboa, 64 N.M. 5, 322 P.2d 337 (1958); see also §2.6-1(H) of this Benchbook for procedures.

4. Judgment of Default
   When a forfeiture is declared, but is not set aside, the Court shall, on motion of the prosecution, enter a default judgment. Section 31-3-2(D). If a portion of a judgment on default remains unpaid for ten (10) days, then the court may issue execution in satisfaction of judgment. Section 31-3-2(G). In cases involving a paid surety, if the judgment is not paid, the court gives written notice to the superintendent of insurance. Section 30-3-2(H). The superintendent of insurance notifies the bonding company that unless the judgment is paid or an appeal, writ of error or supersedeas is taken within thirty (30) days of judgment, it will forfeit the right to do business in this state. If the judgment is still not paid, the superintendent revokes the right of the bonding company to do business in the state. Section 30-3-2(H).