A person shall not be prosecuted, tried or punished in any court of this state unless the indictment is found or information or complaint is filed within the time as provided:
A. for a second degree felony, within six years from the time the crime was committed;
B. for a third or fourth degree felony, within five years from the time the crime was committed;
C. for a misdemeanor, within two years from the time the crime was committed;
D. for a petty misdemeanor, within one year from the time the crime was committed;
E. for any crime against or violation of Section 51-1-38 NMSA 1978, within three years from the time the crime was committed;
F. for a felony pursuant to Section 7-1-71.3, 7-1-72 or 7-1-73 NMSA 1978, within five years from the time the crime was committed; provided that for a series of crimes involving multiple filing periods within one calendar year, the limitation shall begin to run on December 31 of the year in which the crimes occurred;
G. for an identity theft crime pursuant to Section 30-16-24.1 NMSA 1978, within five years from the time the crime was discovered;
H. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed; and
I. for a capital felony or a first degree violent felony, no limitation period shall exist and prosecution for these crimes may commence at any time after the occurrence of the crime.
History: 1953 Comp., § 40A-1-8, enacted by Laws 1963, ch. 303, § 1-8; 1979, ch. 5, § 1; 1980, ch. 50, § 1; 1997, ch. 157, § 1; 2005, ch. 108, § 7; 2009, ch. 95, § 2.
ANNOTATIONSCross references. — For limitation on prosecutions for violations of municipal ordinances, see 35-15-5 NMSA 1978.
For raising pre-trial motions, defenses and objections, see Rule 5-601 NMRA.
For time limits for arraignment and commencement of trial, see Rule 5-604 NMRA.
The 2009 amendment, effective July 1, 2009, in Subsection F, added Section 7-1-71.3 NMSA 1978, and after "NMSA 1978", deleted "or Section 4 of this 2005 act"; and added Subsection G.
The 2005 amendment, effective June 17, 2005, added Subsection F to a five year limitation for commencing a felony prosecution pursuant to Sections 7-1-72 or 7-1-73 NMSA 1978 from the time the crime was committed or if the prosecution is for a series of crimes involving multiple filing periods within one calendar year, from December 31 of the year in which the crimes occurred.
The 1997 amendment, effective July 1, 1997, deleted former Subsections A and B providing for 15 year limitations for capital murder and first degree murder, added Subsection G, and redesignated the remaining subsections accordingly.
Application of 1997 amendment. — The 1997 amendment, which abolished the fifteen year statute of limitations for all capital felonies and first degree violent felonies, applies to unexpired criminal conduct committed before the amendment's effective date of July 1, 1997. State v. Morales, 2010-NMSC-026, 148 N.M. 305, 236 P.3d 24, rev'g 2008-NMCA-155, 145 N.M. 259, 196 P.3d 490.
Where defendant was charged with aggravated criminal sexual penetration of a child less that thirteen years of age, a first degree felony, based on conduct that occurred between January 1, 1978 and December 30, 1985, the crimes committed by defendant after July 1, 1982 were not time barred as of July 1, 1997 and the 1997 amendment, which abolished the fifteen year statute of limitations for all capital felonies and first degree violent felonies applied to the crimes committed by defendant. State v. Morales, 2010-NMSC-026, 148 N.M. 305, 236 P.3d 24, rev'g 2008-NMCA-155, 145 N.M. 259, 196 P.3d 490.
The 1997 amendment, which eliminated the statute of limitations on the prosecution of first degree felonies, applies prospectively. State v. Morales, 2008-NMCA-155, 145 N.M. 269, 196 P.3d 490, cert. granted, 2008-NMCERT-011, rev'd, 2010-NMSC-026, 148 N.M. 305, 236 P.3d 24.
Waiver. — The statute of limitations is a substantive right that may only be waived by a defendant after consultation with counsel, and only if the waiver is knowing, intelligent and voluntary. State v. Kerby, 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704.
Where state alleges that defendant committed criminal sexual penetration of minor under 13 between September and December of 1988 and in January of 1989, the applicable statute of limitations at the time defendant allegedly committed the crime is 15 years. State v. Hill, 2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175, cert. denied, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.
Limitation "not otherwise provided for". — A limitation is "otherwise provided for" for purposes of Subsection H (now F), based on Subsection F (now D), which limits the prosecution of petty misdemeanors, if the punishment for the crime is such as to make it a petty misdemeanor under Section 30-1-6 NMSA 1978, even if the statute under which the defendant was charged does not expressly state the degree of the crime. Robinson v. Short, 1979-NMSC-099, 93 N.M. 610, 603 P.2d 720.
Period begins running when crime completed. — Where the final "taking" under a fraudulent loan occurred on July 17, 1973, the crimes of fraud and conspiracy to defraud were completed on that date, and the limitation period began to run. State v. Thoreen, 1978-NMCA-024, 91 N.M. 624, 578 P.2d 325, cert. denied, 91 N.M. 610, 577 P.2d 1256.
Limitations against prosecution for conspiracy run from time last overt act in furtherance of the conspiracy was committed. State v. Thoreen, 1978-NMCA-024, 91 N.M. 624, 578 P.2d 325, cert. denied, 91 N.M. 610, 577 P.2d 1256.
Time of filing superseding indictment or information not controlling. — Although a felony charge may be initiated by the filing of a complaint, the felony must be prosecuted by indictment or information, so that at some point the complaint is superseded by an indictment or information. This section, however, does not distinguish among complaint, indictment or information, and by providing for a complaint charging a felony within the time limitation, the legislature intended that the time of filing a superseding indictment or information should not control the limitation question. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.
Charges initiated by complaint continued by later indictment. — Since upon being advised that a defendant has been indicted prior to a preliminary examination, a magistrate takes no further action in the case, charges initiated by a complaint in a magistrate court should be considered as continued by a later indictment, and for purposes of this section the prosecution should be considered as commenced by the filing of the complaint. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.
Jury to consider solely date charged. — Although it is not error to instruct the jury that it must find that the crime occurred within the applicable statute of limitations, it is error not to limit the jury's consideration to the date charged in the information. State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949.
New prosecution potentially barred after dismissal for failure to prosecute. — If there is a dismissal of a charge for failure to prosecute, a new prosecution would be barred if initiated after the limitation period expires. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.
Filing complaint within period tolls statute. — An indictment filed prior to dismissal of a complaint but more than three years after the commission of a third degree felony may be timely because the limitation period was tolled by the filing of the complaint within the three-year period. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.
The statute of limitations prescribe time limits within which the state must commence a prosecution by filing the initial charging documents in a case, not time limits within which a defendant must be brought to trial. State v. Collier, 2013-NMSC-015, 301 P.3d 370.
Statute did not bar retrial of lesser-included offense. — Where, on February 13, 2006, defendant injured a horse causing the horse's death; on August 31, 2006, less than seven months after the horse's death, the grand jury returned an indictment charging defendant with felony extreme cruelty to animals; defendant's first trial in March 2008 resulted in a mistrial due to jury deadlock; at defendant's second trial in January 2009, after the statute of limitations period for misdemeanors had run, the district court, at the state's request and without objection from defendant, instructed the jury on the lesser included offense of misdemeanor cruelty to animals; the jury acquitted defendant of the felony charge; and the district court declared a mistrial on the misdemeanor charge due to jury deadlock, the statute of limitations did not bar retrial of the misdemeanor charge because the state commenced the prosecution by timely filing the indictment on the felony charge, which necessarily included the lesser-included misdemeanor charge, within the two-year statute of limitations period for the misdemeanor charge. State v. Collier, 2013-NMSC-015, 301 P.3d 370.
Time limitation instruction. — Generally, the time limitation instruction is a necessary part of the instructions; however, where the uncontradicted evidence shows the offenses were committed within the time limitation, the instruction stating the time limitation is not a required instruction, but giving it is not error. State v. Salazar, 1974-NMCA-026, 86 N.M. 172, 521 P.2d 134.
Error not prejudicial. — Although the offense of unlawfully drawing or discharging a firearm in a settlement was barred by the statute of limitations, which defense was timely raised in the district court, so that the trial court erred in not dismissing this count, nevertheless, no sentence was imposed for this offense, and furthermore, the elements of the offense were embraced in the crime of assault with intent to kill, for which defendant was properly convicted, so that the error was without prejudice to him. State v. Shawan, 1967-NMSC-013, 77 N.M. 354, 423 P.2d 39.
Falsely obtaining unemployment benefits is petty misdemeanor. — When Section 30-1-6C NMSA 1978 is read together with Section 51-1-38 NMSA 1978, it is clear that the crime of falsely obtaining unemployment benefits is a petty misdemeanor, for which the statute of limitations is one year under Subsection F. Robinson v. Short, 1979-NMSC-099, 93 N.M. 610, 603 P.2d 720(decided under prior law, now Section 30-1-8 NMSA 1978).
Contributions payable under Section 51-1-19 NMSA 1978 are not "revenues" within meaning of Subsection G. Robinson v. Short, 1979-NMSC-099, 93 N.M. 610, 603 P.2d 720 (decided under prior law).
Prosecution for sale of property of another not barred. — Under former law, prosecution for unlawful sale of one head of neat cattle, the property of another, was not barred where commenced within three years from time of alleged offense. State v. Stone, 1937-NMSC-050, 41 N.M. 547, 72 P.2d 9.
Prosecution of misdemeanor. — Under former 41-9-1, 1953 Comp., as well as this section, the maximum time for commencing prosecution for a misdemeanor was within two years from the time the offense was committed. 1957 Op. Att'y Gen. No. 57-74.
Law reviews. — For article, "The Proposed New Mexico Criminal Code," see 1 Nat. Resources J. 122 (1961).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 223 to 233.
Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.
Right to require bail or recognizance where, at time of filing, prosecution of principal is barred by statute of limitations, 75 A.L.R.2d 1431.
Finding or return of indictment, or filing of information, as tolling limitation period, 18 A.L.R.4th 1202.
Waivability of bar of limitations against criminal prosecution, 78 A.L.R.4th 693.
Commencement of limitation period for criminal prosecution under Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USCS §§ 1961-1968, 89 A.L.R. Fed. 887.
When is conspiracy continuing offense for purposes of statute of limitations under 18 USCS § 3282, 109 A.L.R. Fed. 616.
22 C.J.S. Criminal Law §§ 196 to 207.