N.M. Stat. » N.M. Stat. / Chapter 31 / Article 3
New Mexico Statutes

N.M. Stat. § 31-3-9 (2026)

Failure to appear; penalty.

✓ current as of May 2026
Find cases: SyfertCases citing this section NM-LEGnmonesource.com JustiaChapter on Justia CornellLII Search CasesGoogle Scholar 
A person released pending any proceeding related to the prosecution or appeal of a
criminal offense or a probation revocation proceeding who willfully fails to appear before
any court or judicial officer as required:

   A. is guilty of a fourth degree felony, if he was released in connection with a felony
proceeding; or

   B. is guilty of a petty misdemeanor, if he was released in connection with a
misdemeanor or a petty misdemeanor proceeding.

History: 1953 Comp., § 41-3-8, enacted by Laws 1973, ch. 73, § 6; 1999, ch. 150, § 1.

                                     ANNOTATIONS

Repeals. — Laws 1972, ch. 71, § 18, repealed former 41-3-8, 1953 Comp., relating to
procedures in the magistrate court after defendant's arrest.

The 1999 amendment, effective July 1, 1999, substituted "A" for "Any" and "any
proceeding related to the prosecution or appeal of a criminal offense or a probation
revocation proceeding" for "trial or appeal in any criminal action" in the first paragraph,
substituted "proceeding" for "charge" in Subsection A, and deleted "charge of a"
following "in connection with" and added "proceeding" in Subsection B.
This section is not unconstitutionally vague. State v. Aranda, 1980-NMCA-130, 94
N.M. 784, 617 P.2d 173.

Only general intent required. — Failure to appear is not a specific intent crime;
therefore, rejection of defendant's tendered instruction defining "willfulness" as requiring
specific intent to abscond or thwart legal process was not erroneous. State v. Elliott,
2001-NMCA-108, 131 N.M. 390, 37 P.3d 107, cert. quashed, 132 N.M. 288, 47 P.3d
447 (2002).

Sentencing proceedings included. — Failure to appear at sentencing is
encompassed by this section, since the word "trial", which formerly appeared in this
section, could be construed as including all those proceedings within the district court's
jurisdiction, at least through sentencing. State v. Peppers, 1990-NMCA-057, 110 N.M.
393, 796 P.2d 614, cert. denied, 110 N.M. 260, 794 P.2d 734.

Attorneys lack authority to compel appearance of individuals. — Although
attorneys are officers of the court, there is no authority under which attorneys can
require the appearance of an individual before a court unless authorized to do so by
court process, court rule or enabling legislation. Where no such authorization appeared
in the record, defendant who willfully failed to appear in district court after making oral
promise to assistant district attorney that he would do so to complete plea bargaining
agreement on drug charge was not required to appear for purposes of this section, and
could not be convicted under Subsection A. State v. Easterling, 1976-NMCA-078, 89
N.M. 486, 553 P.2d 1293.

No requirement of proving express notice to defendant. — The presence or
absence of notice to the defendant may have a bearing at trial on the question of
willfulness, depending upon the other facts of the case, but express notice to the
defendant is not an independent element, apart from the determination of willfulness,
which the state must prove at either the preliminary hearing or at trial. State v. Masters,
1982-NMCA-166, 99 N.M. 58, 653 P.2d 889.

Willful failure to appear is question of fact. — The word "willfully," as used in this
section, concerns the defendant's state of mind and is a factual question. State v.
Masters, 1982-NMCA-166, 99 N.M. 58, 653 P.2d 889.

Court order failed to compel appearance. — Facts as charged and as elicited at trial
simply did not constitute a violation of this section when "strictly construed" against the
State because: (1) the trial court's order violated due process in that it was unclear
whether or not the defendant was required to appear on the date in question; and (2)
courts would not extend punishment to cases that were not plainly within the statutory
language used. State v. Hicks, 2002-NMCA-038, 132 N.M. 68, 43 P.3d 1078, cert.
denied, 132 N.M. 83, 44 P.3d 529.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Failure to appear, and the like, resulting
in forfeiture or conditional forfeiture of bail, as affecting right to second admission to bail
in same noncapital criminal case, 29 A.L.R.2d 945.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

8 C.J.S. Bail; Release and Detention Pending Proceedings §§ 70 to 75.
Notes of Decisions
Cited in 24 cases (1 in the last 5 years), 1979–2022 · leading case: State v. Elliott, 37 P.3d 107 (N.M. Ct. App. 2001).
Sort: Relevance Newest Treatment
State v. Elliott, 37 P.3d 107 (N.M. Ct. App. 2001). · cites it 64× “{1} Defendant appeals from the judgment and sentence imposed after he was convicted by a jury of felony failure to appear, contrary to NMSA 1978, § 31-3-9 (1973, prior to 1999 amendment).”
State v. Hicks, 43 P.3d 1078 (N.M. Ct. App. 2002). · cites it 26× “” NMSA 1978, § 31-3-9 (1999). Defendant appeals his conviction for failure to appear.”
State v. Littlefield, 190 P.3d 1150 (N.M. Ct. App. 2008). · cites it 28× “Defendant argues that there is no provision in the rule for failure to return from a furlough and that failure to appear under Rule 5-604(B)(5) occurs only when a defendant fails to appear before a judicial officer at a scheduled hearing.”
State v. Foster, 965 P.2d 949 (N.M. Ct. App. 1998). · cites it 24× “See NMSA 1978, § 31-3-9 (1973). He raises two issues on appeal: (1) Defendant’s failure to appear did not violate Section 31-3-9 because a probation hearing is not a criminal proceeding; and (2) even if Section 31-3-9 applies, a petty misdemeanor is the greatest offense of which…”
State v. Aranda, 617 P.2d 173 (N.M. Ct. App. 1980). · cites it 6× “MISDEMEANOR CHARGE OF FAILURE TO APPEAR Defendant did not raise the issue that his failure to appear should have been brought as a misdemeanor rather than a felony charge (see § 31-3-9, N.M.S.A.1978), in his docketing statement.”
State v. Peppers, 796 P.2d 614 (N.M. Ct. App. 1990). · cites it 4× “Defendant raises three issues on appeal: (1) whether the district court properly denied his motion to withdraw his plea; (2) whether the failure-to-appear statute, NMSA 1978, Section 31-3-9 (Repl.Pamp.1984), applies to failure to appear for sentencing; and (3) whether the…”
State v. Granado, 158 P.3d 1018 (N.M. Ct. App. 2007). · cites it 2× “NMSA 1978, Section 31-3-9 (1999) is entitled, “Failure to appear,” and provides: A person released pending any proceeding related to the prosecution or appeal of a criminal offense or a probation revocation proceeding who willfully fails to appear before any court or judicial…”
State v. Fellhauer, 943 P.2d 123 (N.M. Ct. App. 1997). · cites it 2× “We appreciate that under Defendant’s house arrest order, he could have been charged with failure to appear under NMSA 1978, Section 31-3-9 (Repl.Pamp.1984) if he failed to appear for trial, sentencing, or as otherwise required by the court.”
State v. Quintin C., 2019 NMCA 069 (N.M. Ct. App. 2019). · cites it 2× “3d 107 (holding that NMSA 1978, Section 31-3-9 (1999), which penalizes the “willful failure to appear,” is not a specific intent statute because “[t]he crime of failure to appear does not require any intent to do a further action or achieve a further consequence”), with Holguin…”
State v. Lacey, 2002 NMCA 032 (N.M. Ct. App. 2002). · cites it 2× “See NMSA 1978, § 31-3-9(A) (1999). It requires only that a defendant be charged with a felony and that he or she wilfully fail to appear before any court or judicial officer as required.”
State v. Masters, 653 P.2d 889 (N.M. Ct. App. 1982). · cites it 2× “Defendant was charged by complaint in magistrate court with failure to appear, contrary to § 31-3-9, N.M.S.A.1978. Following a preliminary hearing, he was bound over on the offense charged.”
State v. Lacey, 41 P.3d 952 (N.M. Ct. App. 2002). · cites it 2× “See NMSA 1978, § 31-3-9(A) (1999). It requires only that a defendant be charged with a felony and that he or she wilfully fail to appear before any court or judicial officer as required.”
Show all 24 citing cases →
— N.M. Stat. § 31-3-9(A) — 6 cases
State v. Elliott, 37 P.3d 107 (N.M. Ct. App. 2001). “{1} Defendant appeals from the judgment and sentence imposed after he was convicted by a jury of felony failure to appear, contrary to NMSA 1978, § 31-3-9 (1973, prior to 1999 amendment).”
State v. Lacey, 2002 NMCA 032 (N.M. Ct. App. 2002). “See NMSA 1978, § 31-3-9(A) (1999). It requires only that a defendant be charged with a felony and that he or she wilfully fail to appear before any court or judicial officer as required.”
State v. Lacey, 41 P.3d 952 (N.M. Ct. App. 2002). “See NMSA 1978, § 31-3-9(A) (1999). It requires only that a defendant be charged with a felony and that he or she wilfully fail to appear before any court or judicial officer as required.”
State v. Hicks, 43 P.3d 1078 (N.M. Ct. App. 2002). “” NMSA 1978, § 31-3-9 (1999). Defendant appeals his conviction for failure to appear.”
State v. Aranda, 617 P.2d 173 (N.M. Ct. App. 1980). “MISDEMEANOR CHARGE OF FAILURE TO APPEAR Defendant did not raise the issue that his failure to appear should have been brought as a misdemeanor rather than a felony charge (see § 31-3-9, N.M.S.A.1978), in his docketing statement.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.