N.M. Stat. § 30-1-10 (2026)

No person shall be twice put in jeopardy for the same crime. The defense of double
jeopardy may not be waived and may be raised by the accused at any stage of a
criminal prosecution, either before or after judgment. When the indictment, information
or complaint charges different crimes or different degrees of the same crime and a new
trial is granted the accused, he may not again be tried for a crime or degree of the crime
greater than the one of which he was originally convicted.

History: 1953 Comp., § 40A-1-10, enacted by Laws 1963, ch. 303, § 1-10.

                                     ANNOTATIONS
Cross references. — For constitutional provision on former jeopardy, see N.M. Const.,
art. II, § 15.

                          I.     GENERAL CONSIDERATION.

Waiver of rights. — Double jeopardy rights may not be waived and may be raised by
the accused at any stage of a criminal prosecution either before or after judgment.
Defendant may raise the issue of violation of double jeopardy even though he expressly
waived the issue during a plea hearing. State v. Jackson, 1993-NMCA-092, 116 N.M.
130, 860 P.2d 772.

Finality of decision. — The trial court’s oral and written statements during the
proceedings did not constitute acquittals and therefore there was no violation of double
jeopardy protections when the court subsequently found the defendant guilty in the
same proceedings. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354,
cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Removal of child from the custody of the child’s parents pending an investigation
of child abuse is not a punishment. — Where the children, youth and families
department investigated defendants for child abuse and found the allegations to be
unsubstantiated; a tribal court held a custody hearing on the same allegations and
ultimately returned the child to defendants; the defendant who was the primary
caretaker agreed to temporary guardianship of the child during the investigation and
tribal court proceeding; and the removal of the child from the custody of defendants for
fourteen months during the child abuse investigation by the department and the custody
proceeding in tribal court was not intended to punish defendants, the state’s prosecution
of defendants for criminal child abuse did not violate double jeopardy. State v. Diggs,
2009-NMCA-099, 147 N.M. 122, 217 P.3d 608, cert. denied, 2009-NMCERT-007, 147
N.M. 361, 223 P.3d 358.

Identical counts and jury instructions. — Where multiple counts of criminal sexual
penetration of a minor in the indictment and the counts in the jury instructions were
carbon-copy counts of each other and where the child’s testimony distinguished facts
for each count and the defendant admitted to having sexual intercourse with the child on
several occasions, there was sufficient evidence from which a jury could find separate
incidents of criminal sexual penetration and there was no violation of double jeopardy.
State v. Martinez, 2007-NMCA-160, 143 N.M. 96, 173 P.3d 18, cert. denied, 2007-
NMCERT-011, 143 N.M. 155, 173 P.3d 762.

Constitutional provision. — This section provides the same protections as N.M.
Const., art. II, § 15, although those protections are more clearly stated in the statute.
State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

Reinstatement of convictions. — Where one of two otherwise valid convictions must
be vacated to avoid violation of double jeopardy protections, the conviction carrying the
shorter sentence must be vacated. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.
Where defendant and defendant’s companions were accosted by a rival gang in front of
defendant’s family home, guns were pulled on both sides and defendant’s sibling was
severely wounded by gunshots in the leg and abdomen; while defendant’s group were
trying to help defendant’s sibling in the driveway and stop the bleeding from the gunshot
wounds, the person in the rival gang who had been shooting at defendant and
defendant’s companions returned in a Ford Expedition; when defendant saw gunfire
coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle
and began shooting at the Expedition; the driver of Expedition was shot seven times
and died; the jury convicted defendant of voluntary manslaughter and shooting into a
motor vehicle resulting in great bodily harm, the conviction for voluntary manslaughter
should be vacated and the conviction for shooting into a motor vehicle upheld because
the conviction for shooting into a motor vehicle carried a more severe potential
sentence. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

State protections broader than those of federal constitution. — The differences
between N.M. Const., art. II, § 15, and this section suggest that the legislature was
attempting to articulate the protections of the state constitution as being broader than
those of the federal constitution. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74
P.3d 73.

When section applied. — The double jeopardy clause only comes to the aid of
defendants subjected to multiple prosecutions for the identical offense, or in such
situations in which collateral estoppel, the concept of lesser included offenses or the
same evidence test apply. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d
813.

This section precludes retrial of a greater offense only after an acquittal of that offense
and does not address the situation in which the state prosecutes various crimes or
degrees of crimes and the jury returns a verdict on less than all of the crimes charged.
State v. Martinez, 1995-NMSC-064, 120 N.M. 677, 905 P.2d 715.

The New Mexico supreme court’s statement in State v. Martinez, 1995-NMSC-064, 120
N.M. 677, 905 P.2d 715, that this section precludes a retrial of a greater offense only
after an acquittal of that offense, was not intended to introduce a new principle of law
into its double jeopardy jurisprudence, but rather was a summary of existing case law.
State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

This section precludes a retrial of a greater offense only after an (implied or explicit)
acquittal of that offense, provided that the greater offense was charged in the first trial.
State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

Section applies to children's court proceedings involving delinquent child. State v.
Doe, 1977-NMCA-058, 90 N.M. 536, 565 P.2d 1053.
Acquittal of accused protects against second prosecution for same crime.
Borrego v. Territory, 1896-NMSC-011, 8 N.M. 446, 46 P. 349, aff'd sub nom. Gonzales
v. Cunningham, 164 U.S. 612, 17 S. Ct. 182, 41 L. Ed. 572 (1896).

No jeopardy if information fails to state offense. — Where information failed to state
an offense at time of arraignment and entry of plea of not guilty, defendant was not
placed in jeopardy. State v. Ardovino, 1951-NMSC-018, 55 N.M. 161, 228 P.2d 947.

No jeopardy if court lacks jurisdiction. — Since marijuana is not defined as a
narcotic drug under the relevant statutes, a charge of violating Section 30-31-20 NMSA
1978 (trafficking) in the first proceeding brought against defendant for selling marijuana
did not charge defendant with a public offense. Hence, as the court lacked jurisdiction in
the first proceeding, there was no basis for a claim of double jeopardy where defendant
was later charged under the proper section. State v. Mabrey, 1975-NMCA-098, 88 N.M.
227, 539 P.2d 617.

No jeopardy on retrial after appeal. — The former jeopardy clause does not preclude
retrial of defendant whose sentence is set aside because of error in the proceedings
leading to sentence or conviction. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435
P.2d 768; State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied,
386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Constitutional protection against double jeopardy does not prevent a second trial for the
same offense where the defendant himself, by an appeal, has invoked the action which
resulted in the second trial. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d
768.

No jeopardy after collateral attack. — Where a conviction is overturned on collateral
rather than direct attack, retrial is not precluded on double jeopardy grounds. State v.
Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S.
Ct. 1495, 18 L. Ed. 2d 605 (1967).

Waiver of defense by plea agreement. — The defendant waived his double jeopardy
defense by entering a plea agreement which provided that the state could pursue
additional habitual offender proceedings to enhance the defendant's sentence in the
event his probation was revoked or he otherwise failed to fulfill his obligations under the
agreement, and the provision precluding waiver of a double jeopardy defense did not
apply to prevent waiver in such case. Montoya v. New Mexico, 55 F.3d 1496 (10th Cir.
1995).

Charging in alternative. — The concept of double jeopardy was not involved in
charging defendant with fraud or in the alternative embezzlement since the charges
were in the alternative; nor were the concepts of included offenses, same evidence or
merger. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Trial de novo on alternative means of committing offense did not violate double
jeopardy. — When a defendant is convicted based on one of two alternative means of
committing a single crime, there is not an implied acquittal of the other alternative
unless the conviction logically excludes guilt of the other alternative; if there is no
implied acquittal, there is no constitutional prohibition against retrial of both alternatives
after a conviction is set aside. State v. Ben, 2015-NMCA-118, cert. denied, 2015-
NMCERT-011.

Where defendant was charged in magistrate court with multiple means of committing
DWI, per se DWI and impaired to the slightest degree, and was convicted on the per se
theory of DWI, defendant’s double jeopardy rights were not violated when he was
retried de novo on the impaired theory in the district court, because his conviction on the
per se theory of DWI was not logically inconsistent with a finding of impaired DWI. State
v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011.

Prosecution and forfeiture generally. — State v. Nunez, 2000-NMSC-013, 129 N.M.
63, 2 P.3d 264, does not stand for the proposition that a criminal prosecution may never
advance independently of a forfeiture proceeding. Rather, Nunez appears to mandate
only proper initiation of the dual penalty proceeding, meaning that the criminal charges
and the forfeiture proceeding must be merged or consolidated prior to the occurrence of
any event that signals the attachment of jeopardy. State v. Esparza, 2003-NMCA-075,
133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M. 771, 70 P.3d 761.

Civil penalty and criminal prosecution under the Voter Action Act. — The civil
penalty authorized under Section 1-19A-17 NMSA 1978 is remedial and does not
constitute punishment for double jeopardy purposes. The imposition of a civil penalty
does not bar a subsequent criminal prosecution under the Voter Action Act for the same
conduct for which the secretary of state assessed the civil penalty. State v. Block, 2011-
NMCA-101, 150 N.M. 598, 263 P.3d 940.

Where the secretary of state assessed civil penalties against defendant for violations of
the Voter Action Act and the attorney general subsequently filed criminal charges
against defendant for the same violations of the act, the assessment of the civil
penalties and the subsequent criminal prosecution did not violate double jeopardy. State
v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.

Civil forfeiture under Controlled Substances Act. — Because civil forfeiture under
the Controlled Substances Act is punishment for double-jeopardy purposes under the
New Mexico constitution, all forfeiture complaints and criminal charges for violations of
the Controlled Substances Act may both be brought only in a single, bifurcated
proceeding. State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264.

The legislature is not prevented from assessing both civil and criminal penalties for
violations of the Controlled Substances Act, Sections 30-31-1 to 30-31-41 NMSA 1978.
State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M.
771, 70 P.3d 761.
Civil penalties and criminal prosecution under Securities Act. — Criminal
prosecutions under the Securities Act, Sections 58-13B-1 to 58-13B-57 NMSA 1978
(now Sections 58-13C-101 to 58-13C-701 NMSA 1978), following administratively
imposed civil penalties under that Act, do not place defendants in double jeopardy
under N.M. Const., art. II, § 15, or under this section. State v. Kirby, 2003-NMCA-074,
133 N.M. 782, 70 P.3d 772, cert. denied, 133 N.M. 771, 70 P.3d 761.

City ordinance. — The clear intent and purpose of the city ordinance is to establish a
remedial measure to protect the public from those drivers who persist in driving after
license revocation and from multiple driving while intoxicated offenses; therefore, civil
forfeiture proceedings are not punitive, and the drivers are not subjected to double
jeopardy. City of Albuquerque ex rel. Albuquerque Police Dep't v. One (1) 1984 White
Chevy UT., 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94.

Trial de novo after magistrate court conviction. — In a trial de novo resulting from a
defendant’s appeal of a magistrate court conviction, the district court has jurisdiction as
well as a constitutional and statutory obligation to consider the defendant’s pretrial
double jeopardy claim. State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824,
cert. denied, 134 N.M. 179, 74 P.3d 1071.

Greater sentence after trial de novo. — The greater sentence imposed by the district
court for violation of certain municipal ordinances after a trial de novo did not deprive
defendant of due process, nor did it amount to double jeopardy. City of Farmington v.
Sandoval, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.

Double jeopardy was not violated by amendment of defendant’s sentence. —
Where the district court initially determined that defendant’s 1972 uncounseled
misdemeanor DWI conviction could not be used to enhance defendant’s sentence for a
2009 aggravated DWI; the state asked the court to reconsider its ruling as a legal error
six days after the court entered the sentence; the state did not present any new or
supplemental evidence; the court determined that it had erred as a matter of law
because defendant had not been sentenced to jail for the 1972 conviction; and the court
amended defendant’s sentence based on the legal error regarding the 1972 conviction,
defendant did not have a reasonable expectation of finality in the original sentence
because the state moved for reconsideration of the court’s ruling on the validity of the
1972 sentence within the thirty days of the court’s entry of the sentence and double
jeopardy did not preclude the modification of defendant’s sentence based on the legal
error. State v. Redhouse, 2011-NMCA-118, 269 P.3d 8, cert. denied, 2011-NMCERT-
011.

Larceny of cattle distinct from disposition of hides. — Larceny of cattle, completed
on one day by driving the cattle away or killing them with intent to steal, was a distinct
offense from that of killing cattle and failing to keep the hides and an acquittal of former
was no bar to prosecution for latter. State v. Knight, 1929-NMSC-049, 34 N.M. 217, 279
P. 947.
Conspiracy and completed offense are separate offenses and conviction of both
does not amount to double jeopardy. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558
P.2d 1151.

The commission of a substantive offense and a conspiracy to commit it are separate
and distinct offenses, and a conviction for the conspiracy may be had though the
substantive offense was completed. The plea of double jeopardy is not a defense to
conviction for both offenses. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d
1151.

Evidence that a conspiracy to commit burglary was entered on the evening of
November 16th, that the conspirators unsuccessfully attempted to carry out the
conspiracy at 10:30 p.m. of that day, and that the burglary was performed between 9:00
and 9:30 a.m. of November 17th, showed two distinct crimes, and there was no factual
basis for the contention that they were either the same or so similar that multiple
convictions were prohibited. State v. Watkins, 1975-NMCA-126, 88 N.M. 561, 543 P.2d
1189, cert. denied, 89 N.M. 6, 546 P.2d 71.

Double use of prior felony. — It is not legally permissible for the state to present
evidence of the same prior felony to prove an essential element of the crime of felon in
possession of a firearm, and to rely upon this same evidence for purposes of enhancing
the defendants' sentences under the habitual offender criminal statute. State v.
Haddenham, 1990-NMCA-048, 110 N.M. 149, 793 P.2d 279, cert. denied, 110 N.M. 72,
792 P.2d 49, and 110 N.M. 183, 793 P.2d 865.

                                     II.    TESTS.

                        A.     LESSER INCLUDED OFFENSE.

Effect of conviction or acquittal of lesser included offense. — Conviction or
acquittal of a lesser offense necessarily included in a greater offense bars a subsequent
prosecution for the greater offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260,
561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Meaning of included offense. — For an offense to be included within another offense,
the offense must be necessarily included in the offense charged in the indictment, and
for an offense to be necessarily included, the greater offense cannot be committed
without also committing the lesser. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563
P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

Indictment source for determining lesser offense. — For a lesser offense to be
necessarily included, the greater offense cannot be committed without also committing
the lesser, and in determining whether an offense is necessarily included, the court will
look to the offense charged in the indictment. State v. Sandoval, 1977-NMCA-026, 90
N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.
Exception to rule. — Conviction of a lesser included offense bars prosecution of a
greater offense, subject to one exception: if the court does not have jurisdiction to try
the crime, double jeopardy cannot attach, since double jeopardy requires that a court
have sufficient jurisdiction to try the charge. Where the magistrate court had no
jurisdiction to try the charge of vehicular homicide while driving while intoxicated or
recklessly driving, double jeopardy should not bar the vehicular homicide by driving
while intoxicated charge. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Armed robbery and aggravated battery. — The concept of lesser included offenses is
not involved in a prosecution for armed robbery and aggravated battery because either
offense can be committed without committing the other offense. State v. Sandoval,
1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d
486.

Aggravated burglary involving battery and aggravated battery involving deadly
weapon. — Where defendant entered the victims' home with intent to commit theft and
stabbed and beat the victims, defendant’s convictions of aggravated burglary involving
battery and aggravated burglary involving a deadly weapon did not violate double
jeopardy. State v. Swick, 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, cert. granted,
2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

Driving under the influence and homicide by vehicle. — Where the indictment
against defendant was phrased in the alternative charging him with homicide by vehicle
(former Section 64-22-1, 1953 Comp.) while violating either Section 64-22-2, 1953
Comp.(former driving under the influence) or Section 64-22-3, 1953 Comp. (former
reckless driving), the prosecution was not barred by a conviction in municipal court for
driving under the influence since the lesser offense of driving while under the influence
of intoxicating liquor is not necessarily included in the greater offense of homicide by
vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Possession and distribution. — Possession of marijuana was a lesser offense
necessarily included in the greater offense of distribution, arising out of the same
events, and since defendant was convicted of the lesser offense, double jeopardy
barred his prosecution for the greater. State v. Medina, 1975-NMCA-033, 87 N.M. 394,
534 P.2d 486.

Criminal sexual contact of minor and attempted criminal sexual penetration. —
The offenses of criminal sexual contact of a minor and attempted criminal sexual
penetration of a minor cannot be characterized as lesser included and greater inclusive
crimes because they each contain different elements and stand independently in
relation to one another. State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256,
cert. denied, 133 N.M. 727, 69 P.3d 237.

                               B.     SAME EVIDENCE.
Nature of test. — The test for determining whether two offenses are the same so as to
bring into operation the prohibition against double jeopardy is the "same evidence" test
which asks whether the facts offered in support of one offense would sustain a
conviction of the other. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813;
Owens v. Abram, 1954-NMSC-096, 58 N.M. 682, 274 P.2d 630, cert. denied, 348 U.S.
917, 75 S. Ct. 300, 99 L. Ed. 719 (1955).

Same evidence test. — The "same evidence" test is whether the facts offered in
support of one offense would sustain a conviction of the other offense. State v.
Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637,
567 P.2d 486.

Unitary test. — Where a defendant convicted of multiple offenses claims double
jeopardy, a reviewing court first determines whether defendant's conduct was unitary in
nature so that the same acts were used to prove both offenses; where the conduct is
unitary, the court must then examine the statutes in question to determine whether the
legislature intended that multiple punishments could be imposed for different criminal
offenses resulting from the same conduct. State v. Duran, 1998-NMCA-153, 126 N.M.
60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d 352, overruled on other
grounds, State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, cert. denied,
128 N.M. 149, 990 P.2d 823.

Proof of different facts. — If either information requires the proof of facts to support a
conviction which the other does not, the offenses are not the same and a plea of double
jeopardy is unavailing. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d
1353, cert. denied, 90 N.M. 637, 567 P.2d 486; Owens v. Abram, 1954-NMSC-096, 58
N.M. 682, 274 P.2d 630, cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 719
(1955).

If test met, section does not bar consecutive sentencing. — Under the "same
evidence" test, where different elements are required to be proved in order to sustain
each of three convictions, and different evidence is admitted to prove the different
elements, it appears that the three convictions are based in part on separate evidence
and the prohibition against double jeopardy does not bar consecutive sentencing under
the circumstances of the case. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d
280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653
P.2d 162.

Harassment and stalking. — Where the state relies on identical acts of an accused
involving the same course of conduct to prove both the offenses of harassment and of
stalking, double jeopardy provisions preclude multiple punishment, and the offense of
harassment is subsumed into the offense of misdemeanor stalking. State v. Duran,
1998-NMCA-153, 126 N.M. 60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d
352, overruled on other grounds by State v. Laguna, 1999-NMCA-152, 128 N.M. 345,
992 P.2d 896, cert. denied, 128 N.M. 149, 990 P.2d 823.
Felony murder and armed robbery are separate offenses, although they may arise
out of the same transaction. State v. Martinez, 1981-NMSC-016, 95 N.M. 421, 622 P.2d
1041.

Armed robbery and aggravated battery. — Since taking the victim's purse was a fact
required to be proved under the armed robbery charge, but not under the aggravated
battery charge, and application of force was a fact required to be proved under the
aggravated battery charge, while threatened use of force would be acceptable proof
under the armed robbery charge, the elements of the two crimes were not the same,
and the "same evidence" test did not apply. State v. Sandoval, 1977-NMCA-026, 90
N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Armed robbery and aggravated battery with a deadly weapon. — Where defendant
was convicted of armed robbery, conspiracy to commit armed robbery, false
imprisonment, possession of a firearm by a felon, aggravated battery with a deadly
weapon, and two counts of aggravated assault with a deadly weapon, based on
evidence that defendant, armed with a firearm, robbed a restaurant in Alamogordo, New
Mexico, defendant's right to be free from double jeopardy was violated where the
evidence established that the force elements for both armed robbery and aggravated
battery with a deadly weapon were satisfied simultaneously and the jury was instructed
that it could rely on the same conduct to satisfy the force elements of both armed
robbery and aggravated battery with a deadly weapon. Defendant's conviction for
aggravated battery was therefore subsumed by his armed robbery conviction. State v.
Reed, 2022-NMCA-025, cert. denied.

Armed robbery and aggravated assault with a deadly weapon. — Where defendant
was convicted of armed robbery, conspiracy to commit armed robbery, false
imprisonment, possession of a firearm by a felon, aggravated battery with a deadly
weapon, and two counts of aggravated assault with a deadly weapon, based on
evidence that defendant, armed with a firearm, robbed a restaurant in Alamogordo, New
Mexico, defendant's right to be free from double jeopardy was violated where the use of
force against the victim for the aggravated assault with a deadly weapon conviction was
the same use of force as that relied upon for the armed robbery conviction, and the
actions needed to effectuate aggravated assault with a deadly weapon, as charged in
this case, did not require anything more of defendant than the actions necessary to
effectuate armed robbery. Defendant's conviction for aggravated assault with a deadly
weapon was subsumed by his armed robbery conviction. State v. Reed, 2022-NMCA-
025, cert. denied.

Armed robbery and false imprisonment. — Where defendant was convicted of armed
robbery, conspiracy to commit armed robbery, false imprisonment, possession of a
firearm by a felon, aggravated battery with a deadly weapon, and two counts of
aggravated assault with a deadly weapon, based on evidence that defendant, armed
with a firearm, robbed a restaurant in Alamogordo, New Mexico, defendant's right to be
free from double jeopardy was violated where the State argued before the jury that it
could rely on pointing a gun at the victim or pressing a gun to her throat as the basis for
the "force or violence or threatened force or violence" necessary for armed robbery and
"the force or intimidation" necessary for the false imprisonment, and where the elements
of false imprisonment were subsumed by the elements of armed robbery because
nothing more was required of defendant to complete false imprisonment than was
required for his commission of armed robbery. State v. Reed, 2022-NMCA-025, cert.
denied.

Drunk driving and homicide by vehicle. — Where the facts offered in municipal court
to support a conviction for driving while under the influence of intoxicating liquors would
not necessarily sustain a conviction for homicide by vehicle in district court, under the
"same evidence" test there was no double jeopardy when the state sought to prosecute
the defendant for homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333,
540 P.2d 813.

      C.     MERGER, COLLATERAL ESTOPPEL AND SAME TRANSACTION.

Definition of merger. — Merger is the name applied to the concept of multiple
punishment when multiple charges are brought in a single trial; it is an aspect of double
jeopardy, concerned with whether more than one offense has occurred and is applied to
prevent a person from being punished twice for the same offense. State v. Sandoval,
1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d
486.

Nature of test. — The test of whether one criminal offense has merged in another is
not whether two criminal acts are successive steps in the same transaction (the rejected
"same transaction" test), but whether one offense necessarily involves the other. State
v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637,
567 P.2d 486.

Factors considered. — In determining whether the defendant's acts constituted a
single offense or multiple offenses for purposes of double jeopardy, factors considered
include the time between the acts, the location of the victim at the time of each act, the
existence of any intervening event, distinctions in the manner of committing the acts, the
defendant's intent, and the number of victims. State v. Handa, 1995-NMCA-042, 120
N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Merger concept has aspects of "same evidence" test because merger and the
"same evidence" test are both concerned with whether more than one offense has been
committed. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert.
denied, 90 N.M. 637, 567 P.2d 486.

Merger has aspects of included offense concept. — The merger concept has
aspects of the included offense concept, and in determining whether one offense
necessarily involves another offense so that merger applies, the decisions have looked
to the definitions of the crimes to see whether the elements are the same; this approach
is similar to the approach used in determining whether an offense is an included offense
(a determination of whether the greater offense can be committed without also
committing the lesser). State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d
1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Offense of aggravated battery did not merge with armed robbery. State v.
Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637,
567 P.2d 486.

Homicide. — Homicide resulting from great bodily harm was sufficient evidence for the
jury to find aggravated sodomy and first degree kidnapping, and there was no merger
with the murder charge on which defendant was acquitted. State v. Melton, 1977-
NMSC-014, 90 N.M. 188, 561 P.2d 461.

Assault. — An assault arising from a series of three successive shots fired at a single
victim, not separated by a significant amount of time, and arising from a single,
continuous intent constituted one offense, and conviction of the defendant on two
counts of assault violated his double jeopardy rights. State v. Handa, 1995-NMCA-042,
120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Definition of collateral estoppel. — Collateral estoppel means simply that when an
issue of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future lawsuit. State v.
Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535
P.2d 657.

Under the rule of collateral estoppel any right, fact or matter in issue, and directly
adjudicated upon, or necessarily involved in, the determination of an action before a
competent court in which a judgment or decree is rendered upon the merits is
conclusively settled by the judgment therein and cannot again be litigated between the
parties and privies whether the claim or demand, purpose or subject matter of the two
suits is the same or not. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641,
cert. denied, 87 N.M. 450, 535 P.2d 657.

Part of constitutional guarantee. — The principle of collateral estoppel is embodied in
the U.S. Const., amend. V guaranty against double jeopardy and is fully applicable to
states by force of U.S. Const., amend. XIV. State v. Nagel, 1975-NMCA-026, 87 N.M.
434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

When constitutionally required. — The principle of collateral estoppel is only
constitutionally required after a previous acquittal on issues raised in a second
prosecution, and bars relitigation between the same parties of issues actually
determined at the previous trial. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540
P.2d 813.

Double use of conditional discharge. — Use of the defendant's prior conditional
discharge to prove that he was a felon in order to convict him of the crime of felon in
possession of a firearm and to enhance his sentence for underlying assault convictions
did not violate his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M.
38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Sanity during commission of different crimes. — Where defendant's sanity was
raised as an affirmative defense in a first trial, was actually litigated and was absolutely
necessary to a decision in that trial, the sanity of the defendant in a second trial for
offenses committed some 16 hours prior to the crime which was the subject of the first
trial was the same issue of fact as the question of his insanity at the first trial and having
been decided there in his favor collateral estoppel was a bar to the second trial. State v.
Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535
P.2d 657.

Traffic violations and homicide by vehicle. — Where defendant was convicted in
municipal court of violation of certain traffic ordinances, he had no acquittal to raise in
his defense in district court on charges of homicide by vehicle, and application of the
principle of collateral estoppel was therefore inappropriate. State v. Tanton, 1975-
NMSC-057, 88 N.M. 333, 540 P.2d 813.

Same transaction test rejected. — The "same transaction" test, which is concerned
with whether offenses were committed at the same time, were part of a continuous
criminal act and inspired by the same criminal intent, has not been imposed by the
United States supreme court on the states in double jeopardy cases, and its use is not
mandated by N.M. Const., art. II, § 15. It is rejected and disapproved. State v. Tanton,
1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

                                      III.    MISTRIAL.

Manifest necessity. — Where a mistrial is granted not at the behest of defendant, a
second trial is precluded by the double jeopardy clause of the U.S. Const., amend. V
unless it can be said that there was a "manifest necessity" or " compelling reason" for
the granting of a mistrial. Upon appellate review, the question to be decided is whether
the trial court exercised sound judicial discretion to ascertain that there was a manifest
necessity for the declaration of the mistrial. State v. Sedillo, 1975-NMCA-089, 88 N.M.
240, 539 P.2d 630.

Basis of manifest necessity. — The court of appeals would decline to hold there was
a manifest necessity for a mistrial based on the state's supposedly prejudiced right to
appeal when no appeal was attempted. State v. Aragon, 1976-NMCA-018, 89 N.M. 91,
547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson,
1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Ends of public justice. — In determining whether a mistrial should be declared, the
trial court must consider whether the ends of public justice would be defeated by
carrying the first trial to a final verdict; this consideration for the ends of public justice is
a concept separate from manifest necessity. State v. Aragon, 1976-NMCA-018, 89 N.M.
91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v.
Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Prejudice to state. — The failure of defendant to file a timely motion to suppress his
statement resulted in prejudice to the state, and since in such circumstances it would be
contrary to the ends of public justice to carry the first trial to a final verdict, the trial court
did not abuse its discretion in declaring a mistrial; there was no double jeopardy. State
v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549
P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d
1183.

Need for responsible professional conduct. — In considering whether a mistrial was
proper unquestionably an important factor to be considered is the need to hold litigants
on both sides to standards of responsible professional conduct in the clash of an
adversary criminal process. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d
574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-
NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Further interests of defendant. — In determining whether a defendant's retrial will
place him in double jeopardy after a prior trial has ended with a declaration of a mistrial
not at defendant's request include defendant's interest in having his fate determined by
the jury first impaneled, which encompasses not only his right to have his trial
completed by a particular panel, but also his interest in ending the dispute then and
there with an acquittal, which factor would weigh heavily against retrial in all situations
where jeopardy has attached, and also the factor of avoiding giving the state a second
bite of the apple in order to either strengthen its case or to alter its trial strategy to obtain
a conviction. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert.
denied, 89 N.M. 6, 546 P.2d 71.

Discretion of trial court. — The law has invested courts of justice with the authority to
discharge a jury from giving any verdict, whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for the act, or the ends
of public justice would otherwise be defeated; they are to exercise a sound discretion on
the subject, and it is impossible to define all the circumstances, which would render it
proper to interfere, but the power ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes. State v. C. De Baca,
1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Upon appellate review of the declaration of a mistrial the question is whether the trial
court exercised a sound discretion to ascertain that there was a manifest necessity for a
mistrial. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert.
denied, 89 N.M. 6, 546 P.2d 71.

Mistrial on abuse of discretion. — Where, after the second day of a trial, when jury
instructions had already been settled, one of the jurors was frightened by a telephone
call unrelated to the trial, and exploring her possible bias for use on voir dire in a future
case, and the record did not show that the juror's fear involved either the state or the
defendant, the trial court failed to exercise that sound discretion required of him in
determining whether a manifest necessity or proper judicial administration mandated a
mistrial. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert.
denied, 89 N.M. 6, 546 P.2d 71.

Duty of court before declaring mistrial. — Where there is no manifest necessity for
declaring a mistrial, the trial court has some duty to inquire as to possible alternatives
thereto; affecting the scope of inquiry required are the factors of magnitude of prejudice
and the point at which the proceedings are terminated, and as the magnitude of
possible prejudice increases, less effort need be expended in seeking alternative
resolutions, while conversely, as the length of trial wears on, more effort should be
expended. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert.
denied, 89 N.M. 6, 546 P.2d 71.

Failure to oppose mistrial. — Defense counsel's silence after declaration of a mistrial
by the trial court, sua sponte, where simultaneously the defense attorney himself had
been held in contempt for implicitly challenging a police officer on recross-examination
to take a polygraph test, could not, under the circumstances, be construed as an
intentional relinquishment of a known right, the right against double jeopardy, or as the
mere play of wits of the sharp practitioner. State v. Sedillo, 1975-NMCA-089, 88 N.M.
240, 539 P.2d 630.

Retrial after mistrial. — Two considerations must be balanced against the weighty
interests of the defendant against retrial after declaration of a mistrial not at his request,
namely, whether there was a manifest necessity for the discharge of the first jury, and
also whether the ends of public justice would have been defeated by carrying the first
trial to final verdict. When the irregularity occurring at trial is of a procedural nature, not
rising to the level of jurisdictional error, the necessity to discharge the jury has been
held to be not manifest, but where the irregularity involves possible partiality within the
jury, it has been more often held that the public interest in fair verdicts outweighs
defendant's interest in obtaining a verdict by his first choice of jury. State v. C. De Baca,
1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71. A
retrial after a mistrial is not barred by double jeopardy unless the mistrial was caused by
prosecutorial overreaching. State v. Mazurek, 1975-NMCA-066, 88 N.M. 56, 537 P.2d
51.

Retrial prohibited for prosecutorial misconduct. — Retrial is barred when improper
official conduct is so unfairly prejudicial that it cannot be cured by means short of a
mistrial or a motion for a new trial, and the official knows that the conduct is improper
and prejudicial and the official either intends to provoke a mistrial or acts in willful
disregard of the resulting mistrial, retrial, or reversal. State v. Breit, 1996-NMSC-067,
122 N.M. 655, 930 P.2d 792.

Prosecutorial misconduct not bar to retrial. — Double jeopardy did not bar
reprosecution where a mistrial was declared on motion of defendants for the
prosecutor's discovery abuses because the defendants failed to show why any
prejudice resulting from the prosecutor's late disclosure could not have been cured by a
remedy short of a mistrial. State v. Lucero, 1999-NMCA-102, 127 N.M. 672, 986 P.2d
468, cert. denied, 128 N.M. 149, 990 P.2d 823.

To bar a retrial on double jeopardy grounds, the misconduct must be
extraordinary. — Where defendant was charged with multiple crimes following a two-
vehicle collision, including homicide by vehicle, great bodily harm by vehicle, driving
under the influence of intoxicating liquor or drugs, and reckless driving, and where, prior
to trial, the district court judge specifically excluded by motion in limine hearsay
testimony that defendant had confessed to another officer about being behind the wheel
at the time of the accident, and where, at trial, the officer failed to adhere to the court’s
admonishment, double jeopardy did not bar a retrial where it was the state’s witness,
not the prosecutor, that injected the precluded testimony into the trial, and where there
was no evidence that the prosecutor intentionally elicited testimony about the purported
confession that had been suppressed. State v. Hernandez, 2017-NMCA-020, cert.
denied.

Mistrial on one of two separate charges. — Since the defendant was charged with
attempted murder and aggravated battery and was convicted of aggravated battery, and
since the two offenses were in separate counts and the jury was not instructed that it
could convict on only one offense, its inability to return a verdict on the attempted
murder charge was not an implicit acquittal and the state was not barred from pursuing
an attempted murder charge on remand. State v. Martinez, 1995-NMSC-064, 120 N.M.
677, 905 P.2d 715.

Reprosecution after unnecessary mistrial. — Defense counsel's implicit challenge to
a police officer to take a polygraph test, absent repeated misconduct, was not a type of
misconduct that would go to the very vitals of the trial itself, and hence, where the trial
judge sua sponte declared a mistrial, having made no effort to cure the error or to
assure that there was manifest necessity for such a step, reprosecution of the
defendant would violate his right under the U.S. Const., amend. V not to be put in
jeopardy twice for the same offense. State v. Sedillo, 1975-NMCA-089, 88 N.M. 240,
539 P.2d 630.

                             IV.    RAISING THE DEFENSE.

Estoppel. — An accused is estopped at a second trial to plead the bar of a prior
conviction, judgment and sentence of which have been reversed on appeal. State v.
Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

Factual basis must appear in record in order to support a double jeopardy defense.
State v. Wood, 1994-NMCA-060, 117 N.M. 682, 875 P.2d 1113, cert. denied, 117 N.M.
744, 877 P.2d 44.
Defendants could raise their state-based double jeopardy claim for the first time on
appeal, provided the factual basis for the state constitutional argument could be found in
the record of proceedings below. State v. Lucero, 1999-NMCA-102, 127 N.M. 672, 986
P.2d 468, cert. denied, 128 N.M. 149, 990 P.2d 823.

Raising issue on appeal despite failure to object below. — Even though defendant
made no objection at second trial (held after remand of initial trial which had resulted in
verdict of first degree murder with recommendation of clemency) to instruction that the
jury could find defendant guilty of murder in the first degree and might or might not
recommend clemency, the question of whether this constituted double jeopardy could
nevertheless be raised on appeal. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435
P.2d 768.

Defendant's argument that the state split one criminal defense into five separate
prosecutions and that his convictions were not authorized by the legislature under the
statute prohibiting the unauthorized practice of law amounted to a defense of double
jeopardy which the defendant could raise for the first time on appeal. State v. Edwards,
1984-NMCA-070, 102 N.M. 413, 696 P.2d 1006, cert. quashed, 102 N.M. 412, 696 P.2d
1005 (1985).

The defense of double jeopardy may be raised on appeal even though the defendant
failed to argue that issue in the court below. State v. Riley, 2010-NMSC-005, 147 N.M.
557, 226 P.3d 656; State v. Jensen, 1998-NMCA-034, 124 N.M. 726, 955 P.2d 195.

Defendant may raise a double jeopardy challenge on appeal regardless of preservation.
State v. Rodriguez, 2004-NMCA-125, 136 N.M. 494, 100 P.3d 200, cert. granted, 2004-
NMCERT-010, 136 N.M. 542, 101 P.3d 808, rev’d, 2006-NMSC-018, 139 N.M. 450, 134
P.3d 737.

Guilty plea not bar to raising issue on appeal. — The defendant was not barred by
pleading guilty to two counts in a three count indictment, which contained identical
language for all three counts including the name of the victim, from raising the double
jeopardy claim on appeal. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d
225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Law of case doctrine not bar. — When a trial court's decision that double jeopardy
barred reprosecution of defendant was reversed by the court of appeals, the law of the
case doctrine did not bar consideration of the double jeopardy issue on appeal of the
defendant's conviction at the second trial. State v. Breit, 1996-NMSC-067, 122 N.M.
655, 930 P.2d 792.

Waiver of defense. — Plea of former jeopardy must be interposed at the earliest
opportunity, otherwise it is waived; it cannot be raised for first time after verdict. State v.
Mares, 1921-NMSC-048, 27 N.M. 212, 199 P. 111 (decided under prior law).
Law reviews. — For survey of 1990-91 criminal procedure and evidence, see 22
N.M.L. Rev. 713 (1992).

For note, "Criminal Procedure – Civil Forfeiture and Double Jeopardy: State v. Nunez,"
see 31 N.M.L. Rev. 401 (2001).

For student article, "Criminal Law: Applying the General/Specific Statute Rule in New
Mexico – State v. Santillanes," see 32 N.M.L. Rev. 313 (2002).

For note and comment, "Adding Charges on Retrial: Double Jeopardy, Interstitialism
and State v. Lynch," see 34 N.M.L. Rev. 539 (2004).

For note and comment, "complying With Nunez: The Necessary Procedure for
Obtaining Forfeiture of Property and Avoiding Double Jeopardy After State v. Esparza,"
see 34 N.M.L. Rev. 516 (2004).

For article, "Developing a State Constitutional Law Strategy in New Mexico Criminal
Prosecutions," see 39 N.M.L. Rev. 407 (2009).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 243 to
320.

Occurrences during a view as warranting the jury's discharge without letting in plea of
former jeopardy upon subsequent trial, 4 A.L.R. 1266.

Statutes relating to sexual psychopaths, 24 A.L.R.2d 350.

Right to notice and hearing before revocation of suspension of sentence, parole,
conditional pardon, or probation, 29 A.L.R.2d 1074.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault
and battery or vice versa, 37 A.L.R.2d 1068.

Discharge of accused for holding him excessive time without trial as bar to subsequent
prosecution for same offense, 50 A.L.R.2d 943.

Conspiracy: conviction or acquittal of attempt to commit particular crime as bar to
prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Lesser offense: conviction of lesser offense as bar to prosecution for greater on new
trial, 61 A.L.R.2d 1141.

Appeal: conviction from which appeal is pending as bar to another prosecution for same
offense under rule against double jeopardy, 61 A.L.R.2d 1224.
Plea of guilty as basis of claim of double jeopardy in attempted subsequent prosecution
for same offense, 75 A.L.R.2d 683.

Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in
criminal case, 85 A.L.R.2d 486.

Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense
arising out of same set of facts, later charged in another court, as putting accused in
jeopardy of latter offense, 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as
constituting double jeopardy, 6 A.L.R.3d 905.

Earlier prosecution for offense during which homicide was committed as bar to
prosecution for homicide, 11 A.L.R.3d 834.

Increased punishment: propriety of increased punishment on new trial for same offense,
12 A.L.R.3d 978.

Larceny: single or separate larceny predicated upon stealing property from different
owners at the same time, 37 A.L.R.3d 1407.

Double jeopardy as bar to retrial after grant of defendant's motion for mistrial, 98
A.L.R.3d 997.

Right of defendant sentenced after revocation of probation to credit for jail time served
as condition of probation, 99 A.L.R.3d 781.

Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.

Conviction or acquittal in federal court as bar to prosecution in state court for state
offense based on same facts, 6 A.L.R.4th 802.

Retrial on greater offense following reversal of plea-based conviction of lesser offense,
14 A.L.R.4th 970.

What constitutes "manifest necessity" for state prosecutor's dismissal of action, allowing
subsequent trial despite jeopardy's having attached, 14 A.L.R.4th 1014.

Presence of alternate juror in jury room as ground for reversal of state criminal
conviction, 15 A.L.R.4th 1127.

Seizure or detention for purpose of committing rape, robbery, or other offense as
constituting separate crime of kidnapping, 39 A.L.R.5th 283.
Double jeopardy considerations in federal criminal cases - supreme court cases, 162
A.L.R. Fed. 415.

22 C.J.S. Criminal Law §§ 208 to 276.