A. All appeals and writs of error in criminal cases have the effect of a stay of execution of the sentence of the district court until the decision of the supreme court or court of appeals.
B. If a defendant is convicted of a capital or violent offense and is sentenced to death or a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal.
C. If a defendant is convicted of a noncapital offense other than a violent offense and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
D. As used in Subsections B and C of this section, "violent offense" means:
(1) kidnaping;
(2) criminal sexual penetration in the first or second degree;
(3) armed robbery;
(4) murder in the second degree;
(5) aggravated burglary;
(6) aggravated arson; or
(7) assault with intent to commit violent felony upon peace officer.
E. In all parole and probation revocation proceedings, where the alleged violation by the parolee or probationer of the conditions of release poses a threat to himself or others, the defendant shall not be entitled to be released on bail pending the decision on revocation. In those instances where the state has failed to conduct a preliminary parole revocation hearing on a parolee held for parole violations within sixty days of arrest, the parolee shall be eligible for bail. In all cases, the final parole revocation hearing shall be scheduled for hearing within sixty days of the parolee's return to the penitentiary. In the case of probation violation, if the final probation revocation hearing is not brought before the court within sixty days, then the probationer shall be eligible for bail.
History: Laws 1917, ch. 43, § 58; 1927, ch. 93, § 10; C.S. 1929, § 105-2532; 1941 Comp., § 42-1502; 1953 Comp., § 41-15-2; Laws 1966, ch. 28, § 59; 1981, ch. 232, § 1; 1988, ch. 3, § 1.
ANNOTATIONSCross references. — For rule of criminal procedure regarding release during trial, and release pending sentence, motion for new trial and appeal, see Rule 5-402 NMRA.
For similar appellate rule, see Rule 12-207 NMRA.
For writs of error, see Rule 12-503 NMRA.
The 1988 amendment, effective February 12, 1988, rewrote former Subsection B and redesignated it as Subsection E, and added present Subsections B, C and D.
Applicability. — Laws 1988, ch. 3, § 2, effective February 12, 1988, provides that the provisions of the act apply only to persons convicted for crimes committed on or after its effective date.
Rule 5-805 NMRA does not violate separation of powers. — Subsection H of Rule 5-805 NMRA, which requires dismissal of a probation violation proceeding if the time limits to hold an adjudicatory hearing are not met, does not infringe upon the substantive rights granted by the legislature in Sections 31-11-1 and 31-21-15 NMSA 1978 and does not violate the separation of powers doctrine. State v. Montoya, 2011-NMCA-009, 149 N.M. 242, 247 P.3d 1127, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
No federal constitutional violations by denial of waiver. — Defendant's waiver of supersedeas was properly denied where he agreed to serve time on his sentence pending appeal because he was unable to make appeal bond, and denial was not a violation of defendant's constitutional rights under the due process and equal protection clauses of U.S. Const., amend. XIV. State v. Ramirez, 1966-NMSC-042, 76 N.M. 72, 412 P.2d 246.
Effect of writs of error at common law. — At common law, a writ of error was not a supersedeas so as to discharge custody, but in capital cases it operated to stay execution. Borrego v. Territory, 1896-NMSC-011, 8 N.M. 446, 46 P. 349.
Defendant not obligated to make restitution during appeal. — A defendant is under no legal duty, except moral, perhaps, to make any restitution during the pendency of his appeal. State v. Cordova, 1983-NMCA-144, 100 N.M. 643, 674 P.2d 533.
Waiver of supersedeas. — There is no provision under New Mexico law for a waiver of supersedeas. State v. Ramirez, 1966-NMSC-042, 76 N.M. 72, 412 P.2d 246.
Pending appeal, safekeeping of prisoner sheriff's duty. — Pending appeal, the judge has no power to order one under sentence to be committed to penitentiary for safekeeping. The power of removal is in the hands of the sheriff, who is charged with safekeeping the prisoner. Parks v. Hughes, 1918-NMSC-094, 24 N.M. 421, 174 P. 425.
State solely responsible for cost of maintenance of convict. — When convict under sentence of death is, under this statute, confined in state penitentiary, pending determination of his appeal, state has entire jurisdiction over such convict and cannot recover cost of his maintenance from county. State v. Board of Comm'rs, 1939-NMSC-059, 43 N.M. 521, 96 P.2d 290.
District court abused its discretion in requiring corporate surety to the exclusion of individual sureties on a property bond. State v. Lucero, 1970-NMCA-057, 81 N.M. 578, 469 P.2d 727.
Filing notice of appeal does not divest district court of jurisdiction to hold probation revocation hearing or revoke probation. State v. Rivera, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939.
Probationer's sentence runs during pendency of appeal. — Nowhere in this section has the legislature expressly prohibited a probationer's sentence from running during the pendency of his or her appeal; moreover, the primary goal of probation, defendant rehabilitation, could be defeated by delaying the commencement of a defendant's probationary sentence pending appeal. State v. Rivera, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939.
Section intended to function as appellate bail bond statute. — If the execution of a defendant's sentence was automatically stayed once he or she appealed, then the defendant would have had no need for a statutory right to post an appeal bond. State v. Rivera, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939.
If a defendant remains on probation during the pendency of his or her appeal, an appeal bond becomes unnecessary because the defendant is already submitting to the punishment that an appeal bond would be fashioned to prevent the defendant from attempting to evade; thus, one of the primary purposes of this section as a whole preventing the defendant from avoiding the consequences of his or her conviction and sentence is inapplicable once the defendant is placed on probation. State v. Rivera, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939.
Subsection C(2) is constitutional. — The appeal-bond statute does not unduly burden or interfere with the New Mexico's courts responsibilities, and thus, the statute is constitutional. State v. House, 1996-NMCA-052, 121 N.M. 784, 918 P.2d 370, cert. denied, 121 N.M. 676, 916 P.2d 1343.
Meaning of "substantial question". — A "substantial question" under Subsection C(2) is a question that is more than not frivolous. State v. House, 1996-NMCA-052, 121 N.M. 784, 918 P.2d 370, cert. denied, 121 N.M. 676, 916 P.2d 1343.
Test for post-conviction bail. — Bail pending appeal is appropriate if, assuming that the "substantial question" is determined favorably to defendant on appeal, that "substantial question" decision is likely to result in reversal or an order for a new trial on all counts on which imprisonment has been imposed. State v. House, 1996-NMCA-052, 121 N.M. 784, 918 P.2d 370.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 8 Am. Jur. 2d Bail and Recognizance § 15 et seq; 21 Am. Jur. 2d Criminal Law § 896 et seq.
Bail pending appeal from conviction, 19 A.L.R. 807, 45 A.L.R. 458, 77 A.L.R. 1235.
Supersedeas, stay on bail upon appeal in habeas corpus, 63 A.L.R. 1460, 143 A.L.R. 1354.
Mandamus to compel judge or other officer to grant accused bail or accept proffered sureties, 23 A.L.R.2d 803.
Effect of abolition of capital punishment on procedural rules governing crimes punishable by death-post-Furman decisions, 71 A.L.R.3d 453.
Right of defendant in state court to bail pending appeal from conviction - modern cases, 28 A.L.R.4th 227.
What is "a substantial question of law or fact likely to result in reversal or an order for a new trial" pursuant to 18 USCS § 3143(b)(2) respecting bail pending appeal, 79 A.L.R. Fed. 673.
Abatement effects of accused's death before appellate review of federal criminal conviction, 80 A.L.R. Fed. 446.
8 C.J.S. Bail; Release and Detention Pending Proceedings §§ 9, 24 to 30, 33 to 38.