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

3.2-1 Calling of Prospective Jurors

A. General

1. Juries in the courts of limited jurisdiction consist of six persons. Sections 34-8A-5(D) and 35-8-3(A); Magis. Ct. R. 2-603(A); Metro. Ct. R. 3-603(A). More than that number are called as prospective jurors to allow for challenges and for excusing persons from jury service.
2. Before July 1, 2005, any person who is 18 years of age, a United States citizen, a resident of New Mexico residing in the county for which a jury may be convened, and who is not a convicted felon may be summoned for service as a juror unless the person is incapable of serving because of a physical or mental illness or infirmity. The previous requirement that a juror be a "qualified elector" is no longer a prerequisite to serve on a jury. State v. Chama Land & Cattle Co., 111 N.M. 317, 805 P.2d 86 (Ct. App. 1990) (decided under former law).
3. Beginning on July 1, 2005, convicted felons will no longer be prohibited from serving on juries. In addition, an individual may “summoned for service as a juror unless the person is incapable of service because of a physical or mental illness or infirmity or undue or extreme physical or financial hardship.” S.B. 240, 47th Legis., Reg. Sess. (N.M. 2005).

   a. Undue or extreme physical or financial hardship means that the prospective juror would:
   
        i. be required to abandon another person under his or her care or supervision due to the extreme difficulty of obtaining an appropriate substitute caregiver during the period of jury service;
   
       ii. incur costs that would have a substantial adverse impact on the payment of necessary daily living expenses of the person or the person's dependent; or
   
       iii. suffer physical hardship that would result in illness or disease; and that
   
       iv. does not exist solely because a prospective juror will be absent from employment.

4. Individuals no longer need to be "qualified electors" in order to serve on a jury. State v. Chama Land & Cattle Co., 111 N.M. 317, 805 P.2d 86 (Ct. App. 1990) (decided under former law).

5. The jury list is selected randomly from lists of registered voters and driver's license holders. Section 38-5-3(A). Beginning on July 1, 2005, jury lists will also include anyone who files personal income taxes in New Mexico. S.B. 240, 47th Legis., Reg. Sess. (N.M. 2005).

6. Normally, a jury list of substantially more than six persons is selected every six months; from that list, some or all of the persons may be called as prospective jurors in specific cases. A person is not required to be on a jury list for more than six months in any year unless the panel is engaged in a trial. Sections 34-8A-5(G) and 35-8-3(D). Under new legislation effective July 1, 2005, “[t]he supreme court shall establish, by rule, the appropriate length of jury terms.”

B. Request for Qualified Jurors

1. When the magistrate or metropolitan court needs a jury panel, the magistrate court will contact the district court. The district court clerk will draft an order to the administrative office of the courts requesting that the required number of jurors be selected randomly in the manner of selection of district court jury panels. Sections Section 34-8A-5 and 35-8-3. Within fifteen (15) days after receipt of the order, the administrative office of the courts forwards a list of the names of jurors drawn for jury service either to the district court, which then sends the list to the magistrate court or, if so ordered, to the magistrate court. Section 38-5-3(C).
2. The court maintains a record of the names and addresses of the prospective jurors for jury service.
3. The magistrate or metropolitan court summons the jurors from the list.
4. If persons summoned fail to appear for jury duty, the judge at his or her discretion, may notify jurors by issuing a subpoena for jury service. Civil Form 4-601 (Subpoena for Jury Service).
5. If the trial is canceled before the trial date, but after prospective jurors have been notified to appear, the court should attempt to notify the prospective jurors that the trial has been canceled.

C. Excusing Jurors (Sections 38-5-2 and 38-5-11)

1. Any person may be excused from jury service at the discretion of the judge if the person shows good cause for being excused The judge may disallow fees and mileage for any person excused from jury service.
2. Any person who has served as a member of a petit jury panel or a grand jury in either state or federal court within the preceding thirty-six (36) months shall, on request, be excused from serving as a juror. Section 38-5-2.
3. The judge may, but is not required to, exclude or postpone the services of a prospective juror for a specific trial or on a certain date on the basis of:

   a. physical or mental illness of the person or within the person's immediate family; or

   b. a written request from the person's employer, stating that the services of the person are essential; or
   
   c. the person's prior business, professional, or educational commitments that conflict with jury service. Section 38-5-11(B).

4. Beginning July 1, 2005, the judge must postpone an individual’s jury service if the person has not previously been granted a postponement and he or she agrees to a future date to appear for jury service within six months. S.B. 240, 47th Legis., Reg. Sess. (N.M. 2005).
   
   a. The court may approve a subsequent request to postpone jury service only in the event of an emergency that could not have been anticipated at the time the initial postponement was granted. Before granting a subsequent postponement, the prospective juror must agree to a future date to appear for jury service within six months of the postponement.

   b. The court must postpone and reschedule the service of a summoned juror, without affecting the summoned juror's right to request a postponement described above, if the summoned juror is:
   
      i. one of two summoned jurors from the same small employer (5 or fewer employees); or
   
      ii. the only person performing essential services for the employer such that the employee’s absence would require the employer to close or cease to function if the person is required to perform jury duty; or
   
      iii. required to attend to an emergency as determined by the judge.

5. Beginning July 1, 2005, the court may, in its discretion, excuse a prospective juror if:
   
   a. jury service would cause undue or extreme physical or financial hardship to the prospective juror or to a person under the prospective juror's care or supervision; or
   
   b. the person has an emergency that renders the person unable to perform jury service; or
   
   c. the person presents other satisfactory evidence to the judge or the judge's designee.

D. Jury Costs (Sections 10-8-4, 38-5-15 and 50-4-22)

1. Persons summoned for jury service and persons selected to serve as jurors shall be compensated for their time in travel, attendance, and service at the highest state minimum wage rate, and reimbursed for mileage at the rate set forth in the Supreme Court Jury Payment Guidelines.
2. Jurors are paid by the State Treasurer in the same manner as other magistrate or metropolitan court expenses are paid.
3. In civil actions, the party requesting the jury must pay the costs of the jury, including mileage when a juror must travel more than fifteen miles from his or her residence. Sections 10-8-4; 35-6-4(A); see also §1.3-1(F) of this Benchbook regarding taxing and collecting jury costs.