N.M. Stat. § 39-3-3 (2026)

A. By the defendant. In any criminal proceeding in district court an appeal may be
taken by the defendant to the supreme court or court of appeals, as appellate
jurisdiction may be vested by law in these courts:
       (1)    within thirty days from the entry of any final judgment;

       (2)    within ten days after entry of an order denying relief on a petition to review
conditions of release pursuant to the Rules of Criminal Procedure [Rule 5-101 NMRA];
or

        (3)    by filing an application for an order allowing an appeal in the appropriate
appellate court within ten days after entry of an interlocutory order or decision in which
the district court, in its discretion, makes a finding in the order or decision that the order
or decision involves a controlling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from such order or decision may
materially advance the ultimate termination of the litigation.

    B. By the state. In any criminal proceeding in district court an appeal may be taken
by the state to the supreme court or court of appeals, as appellate jurisdiction may be
vested by law in these courts:

      (1)     within thirty days from a decision, judgment or order dismissing a
complaint, indictment or information as to any one or more counts;

        (2)     within ten days from a decision or order of a district court suppressing or
excluding evidence or requiring the return of seized property, if the district attorney
certifies to the district court that the appeal is not taken for purpose of delay and that the
evidence is a substantial proof of a fact material in the proceeding.

   C. No appeal shall be taken by the state when the double jeopardy clause of the
United States constitution or the constitution of the state of New Mexico prohibits further
prosecution.

History: 1953 Comp., § 21-10-2.1, enacted by Laws 1972, ch. 71, § 2.

                                      ANNOTATIONS

Cross references. — For supreme court jurisdiction, see N.M. Const., art. VI, § 2; 38-3-
2, 39-3-4 NMSA 1978.

For court of appeals jurisdiction, see N.M. Const., art. VI, § 29; 34-5-8 NMSA 1978.

For Uniform Certification of Questions of Law Act, see Chapter 39, Article 7 NMSA
1978.

For how and when appeal as of right taken, see Rule 12-201 NMRA.

For interlocutory appeals by permission, see Rule 12-203 NMRA.
For appeals from orders regarding release entered prior to a judgment of conviction,
see Rule 12-204 NMRA.

For procedure on certiorari to review decision of court of appeals, see Rule 12-502
NMRA.

For procedure on certification from court of appeals, see Rule 12-606 NMRA.

State’s appeal was proper where district court’s ruling adversely impacted the
state’s capacity to present evidence. — Where defendant was charged with homicide
by vehicle and driving while under the influence of intoxicating liquor or drugs, the
state’s appeal of the district court’s pretrial ruling prohibiting one of the state’s
witnesses from testifying as an expert was proper under this section, because the
district court’s ruling adversely impacted the state’s capacity to present evidence that
went to the heart of the proof required to establish the element of causation. State v.
Ruffin, 2019-NMCA-009.

Repeals and reenactments. — Laws 1972, ch. 71, § 2 repealed 21-10-2.1, 1953
Comp., relating to allowing appeals to defendants, and enacted a new section.

Dismissal of charges was not an acquittal and was subject to appeal. — Where
defendant's codefendant was acquitted in a separate trial of the identical charges that
had been filed against defendant and the trial court adjudged defendant not guilty based
on the codefendant's acquittal and dismissed the charges against defendant before
defendant's trial had begun, the order of dismissal was not an acquittal of defendant and
was appealable by the state. State v. Arevalo, 2002-NMCA-062, 132 N.M. 306, 47 P.3d
866.

Double jeopardy did not bar state appeal. — Where defendant moved to dismiss the
charges for lack of venue at jury selection and the trial court reserved a ruling until the
close of the state's case in chief where the trial court granted defendant's motion, and
double jeopardy had attached, double jeopardy did not bar the state's appeal. State v.
Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCER-
003, 139 N.M. 353, 132 P.3d 1039.

"Sufficiently aggrieved" rationale of finality rule. — One exception to the general
rule that an appeal lies only from a final judgment, or a practical construction of the term
"finality", exists when the consequences of an order that is not the last contemplated
order in the case are sufficiently severe that the aggrieved party should be granted a
right to appeal to alleviate hardship that would otherwise accrue if the appeal were
delayed. State v. Durant, 2000-NMCA-066, 129 N.M. 345, 7 P.3d 495.

"Sufficiently aggrieved" rationale allows appeal. — Where a jury convicted
defendant of felony charges, the trial court entered a conditional discharge order
pursuant to Section 31-20-13 NMSA 1978, which provided that without adjudication of
guilt, further proceedings would be deferred and ordered defendant to be placed on
probation, complete supervision required by the probation authorities, and complete
alcohol treatment, defendant had a right to appeal the conditional discharge order
because, unless defendant is permitted to appeal the order, the order could be used to
enhance the sentence under Section 31-18-17 NMSA 1978. State v. Durant, 2000-
NMCA-066, 129 N.M. 345, 7 P.3d 495.

Where a juvenile was sentenced to six months probation pursuant to a conditional
consent decree, the juvenile was sufficiently aggrieved by the decree to allow an appeal
even though the consent decree was not the last order contemplated in the case,
because even though the charges against the juvenile may be dismissed, the fact of the
charges and the consent decree may be considered if other charges arise while the
juvenile is a child. State v. Crystal B., 2001-NMCA-010, 130 N.M. 336, 24 P.3d 771.

State’s appeal of granting of suppression order. — The state cannot appeal the
exclusion of an inadmissible blood alcohol report under Section 39-3-3B(2) NMSA 1978,
and double jeopardy precludes the state from trying defendant again because the state
refused to present any evidence to satisfy the elements of the charged offense after the
jury was impaneled. State v. Gomez, 2006-NMCA-132, 140 N.M. 586, 144 P.3d 145.

Supreme court jurisdiction. — The legislature intended the supreme court to have
jurisdiction over interlocutory appeals in situations where a defendant may possibly be
sentenced to life imprisonment or death. State v. Smallwood, 2007-NMSC-005, 141
N.M. 178, 152 P.3d 821.

The supreme court has exclusive jurisdiction over interlocutory appeals from
pretrial release orders in cases where the defendant faces a possible sentence of life
imprisonment or death. State v. Brown, 2014-NMSC-038.

Children’s court cases. — Because juvenile delinquency proceedings are sufficiently
similar to criminal proceedings, Section 39-3-3B(2) NMSA 1978 governs in the
circumstances of interlocutory appeals of suppression orders from a children's court.
State v. Jade G., 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659.

Appellate jurisdiction over a district court’s decision in an on-record appeal from
metropolitan court. — This section does not distinguish the appeal of a judgment in a
criminal case originating in the district court from one originating in the metropolitan
court, nor does it distinguish the appeal of a district court’s on-record review from the
appeal of a district court’s de novo trial, and therefore the New Mexico court of appeals
has appellate jurisdiction to review decisions made in on-record appeals to the district
court from the metropolitan court. State v. Armijo, 2016-NMSC-021, aff’g 2014-NMCA-
013, 316 P.3d 902.

"Criminal proceeding" includes on-record appellate decisions of the district
court. — This section provides defendants in "any criminal proceeding" with the right to
appeal a final judgment of the district court to the court of appeals, a reasonable
interpretation of which includes a defendant’s right to appeal a district court’s review of
an on-record metropolitan court decision. State v. Carroll, 2015-NMCA-033, cert.
granted, 2015-NMCERT-001.

Where defendant was convicted of DWI following a bench trial in metropolitan court,
appealed the conviction to the district court for on-record review, which was affirmed by
the district court, and then appealed the district court’s decision to the court of appeals,
the state’s claim that there is no express right to appeal a district court’s on-record
appellate review of a metropolitan court conviction for DWI was in error; a reasonable
interpretation of "criminal proceeding" includes a district court’s on-record review of a
metropolitan court decision; therefore a defendant has the right to appeal a district
court’s review of an on-record metropolitan court decision. State v. Carroll, 2015-NMCA-
033, cert. granted, 2015-NMCERT-001.

District court jurisdiction over issues not included in appeal. — Where defendant
was indicted by two separate grand juries; the two indictments were joined for trial;
defendant was convicted of violating an order of protection; the district court declared a
mistrial on the remaining charges, because the jury was unable to reach a verdict;
defendant appealed the conviction of violating an order of protection; and during the
pendency of defendant’s appeal, defendant was retried and convicted on the mistrial
charges, defendant’s appeal was limited to only the conviction of violating an order of
protection and the district court retained jurisdiction to retry the unresolved charges.
State v. Gutierrez, 2011-NMCA-088, 150 N.M. 505, 263 P.3d 282, cert. denied, 2011-
NMCERT-008, 268 P.3d 513.

Appeal of exclusion of statements made during a SANE examination. — Where the
trial court excluded the victim’s statements to a sexual assault nurse examiner on the
morning of trial; the jury had been impaneled, but not sworn; the victim’s statements
identified the defendant as the perpetrator and described the criminal acts; and the
victim was available to testify, the state’s appeal was timely and the evidence was
sufficiently material to support an appeal. State v. Mendez, 2009-NMCA-060, 146 N.M.
409, 211 P.3d 206, rev'd on other grounds, 2010-NMSC-044, 148 N.M. 761, 242 P.3d
328.

Appeal of exclusion of prior convictions in the penalty phase of a capital felony
case. — In a capital felony case, the state has a statutory right to an interlocutory
appeal of the district court’s pre-trial order excluding the per se introduction of the
defendant’s prior convictions during the penalty phase of the defendant’s trial when the
evidence is substantial proof of a fact material in the proceeding. State v. Sanchez,
2008-NMSC-066, 145 N.M. 311, 198 P. 3d 337.

An order denying and dismissing a petition to revoke probation is not an order
from which an appeal can be taken under this section. State v. Grossetete, 2008-
NMCA-088, 144 N.M. 346, 187 P.3d 692, cert. denied, 2008-NMCERT-005, 144 N.M.
331, 187 P.3d 677.
History of section. State v. Santillanes, 1980-NMCA-183, 96 N.M. 482, 632 P.2d 359,
cert. denied, 95 N.M. 426, 622 P.2d 1046, aff'd in part, rev'd in part, 1981-NMSC-064,
96 N.M. 477, 632 P.2d 354.

Computation of time period. — Rule 12-308A NMRA governs the computation of the
ten-day period under Paragraph B(2). State v. Fernandez, 1999-NMCA-128, 128 N.M.
111, 990 P.2d 224.

Late filing of appeal. — Because timely filing of an appeal is a mandatory precondition
rather than an absolute jurisdictional requirement, a trial court may, under unusual
circumstances, use its discretion and entertain an appeal even though it is not timely
filed. The decision to dismiss an appeal is extreme and must be determined on a case-
by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.

Court error may excuse late appeal. — One unusual circumstance that would warrant
permitting an untimely appeal is if the delay is a result of judicial error. To deny a party
the constitutional right to an appeal because of a mistake on the part of the court runs
against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-
024, 117 N.M. 273, 871 P.2d 369.

Supreme court has authority to issue writs of certiorari directed to the court of
appeals in a criminal case where the conditions of 34-5-14 NMSA 1978 are met, and
the court's original jurisdiction to issue writs of certiorari, as provided for in N.M. Const.,
art. VI, § 3, leaves no doubt as to the power of the court to issue such writs. State v.
Gunzelman, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55, overruled on other grounds
by State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.

Entry of judgment. — An appeal can be taken only after entry of judgment. State v.
Edmondson, 1991-NMCA-069, 112 N.M. 654, 818 P.2d 855, cert. quashed, 112 N.M.
641, 818 P.2d 419.

Final order. — An order is final if all issues of law and fact necessary to be determined
have been determined and the case has been completely disposed of to the extent that
the court has power to dispose of it. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801
P.2d 660, cert. denied, 111 N.M. 164, 803 P.2d 253.

Initial orders not final. — Where the trial court had made only the initial orders in a
multi-part proceeding to determine defendant's competency to stand trial for murder, the
orders finding defendant dangerous and incompetent to stand trial from which he
appealed were not final orders subject to appellate review. State v. Webb, 1990-NMCA-
077, 111 N.M. 78, 801 P.2d 660, cert. denied, 111 N.M. 164, 803 P.2d 253.

Order allowing withdrawal of a plea agreement is not a final order for purpose of
filing an appeal under Subsection B(1) of this section. State v. Griego, 2004-NMCA-107,
136 N.M. 272, 96 P.3d 1192.
Where the district court specifically found that the state presented no witnesses or
evidence to substantiate its claim that its case would be prejudiced by a loss of
witnesses or evidence if the plea was withdrawn, without a factual basis in the record,
the state=s bare assertions of prejudice gives no reason to find such a substantial
interest so as to create an exception to the rule requiring appeals be taken only from
final orders. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96 P.3d 1192.

Magistrate court orders suppressing evidence were not final orders in either an
actual or practical sense. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d
627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040.

Order disqualifying counsel. — A trial court order disqualifying defendant's counsel is
not a final, appealable order. State v. Pacheco, 1993-NMCA-033, 115 N.M. 325, 850
P.2d 1028.

Review of disqualification of prosecutor. — On appeal from an order dismissing an
indictment the appellate courts may also review a second portion of the order that
disqualifies the prosecutor on grounds related to those supporting the dismissal of the
indictment. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269.

Allowance of interlocutory appeal is discretionary with the appellate court. State v.
Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied, 95 N.M. 299,
621 P.2d 516.

Trial court does not have authority to grant interlocutory appeal. State v. Garcia,
1977-NMCA-116, 91 N.M. 131, 571 P.2d 123.

When permission to appeal from interlocutory order is denied, the appellate court
never assumes jurisdiction of the matter, consequently, jurisdiction remains in the trial
court and there is nothing to prevent the trial court from proceeding to try the pending
case. State v. Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied,
95 N.M. 299, 621 P.2d 516.

Court of appeals granted interlocutory appeal on denied motion to dismiss. —
Where on the basis of the municipal court convictions defendant moved that the
indictment be dismissed, claiming the district court prosecution was barred by the
constitutional prohibition against double jeopardy which the district court denied, the
court of appeals granted an interlocutory appeal pursuant to this section. State v.
Tanton, 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269, rev'd on other grounds, 1975-
NMSC-057, 88 N.M. 333, 540 P.2d 813.

Exceptions to dismissal of indictment or information. — Although Subsection B(1)
of this section requires that the order dismiss the indictment or information, there are
exceptions to this general rule. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96
P.3d 1192.
No appeal from denial of motion to suppress. — Where defendant filed a motion to
suppress which was denied by the trial court, and defendant attempted to appeal from
that order, relying on language of the trial court attempting to grant an interlocutory
appeal, there was no final judgment in this case or any matter involving conditions of
release, and the appeal did not come within this section. State v. Garcia, 1977-NMCA-
116, 91 N.M. 131, 571 P.2d 123.

Appeal from suppression order. — Since the state has no constitutional appeal as of
right from a suppression order, the time for filing such an appeal is governed by the ten-
day limit in Paragraph B(2) of this section and not the thirty-day limit provided for in Rule
12-201A NMRA. State v. Alvarez, 1991-NMCA-115, 113 N.M. 82, 823 P.2d 324, cert.
denied, 113 N.M. 23, 821 P.2d 1060.

Because the state did not intend to use at trial any of the physical evidence seized or
statements made as the result of a stop, the state would have been unable to, and
indeed was not required, to appeal the suppression order within ten days after the trial
court's ruling. State v. Harris, 1993-NMCA-115, 116 N.M. 234, 861 P.2d 275.

The right of the state to appeal orders of suppression from the district court is created
by statute as set forth in Subsection B of this section, which has been held not to be a
statutory codification of the state's constitutional right to appeal. State v. Heinsen, 2004-
NMCA-110, 136 N.M. 295, 97 P.3d 627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121
P.3d 1040.

The state may obtain judicial review of a suppression order of a magistrate court by
filing a nolle prosequi to dismiss some or all of the charges in the magistrate court after
the suppression order is entered, and refiling in the district court for a trial de novo.
State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040.

Timeliness of appeal. — Where the suppression orders were filed on January 15,
2003, and the notice of appeal was filed on January 24, 2003, it was timely under
Subsection B(2) of this section. State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108
P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659.

Tolling of appeal period. — Motions to reconsider filed within the permissible appeal
period suspend the finality of an appealable order or judgment and toll the time to
appeal until the district court has ruled on the motion. State v. Suskiewich, 2014-NMSC-
040.

Untimely notice of appeal. — Where state’s motion to reconsider district court’s order
suppressing evidence was filed outside the permissible ten-day appeal period set forth
in Subsection B(2) of this section, the motion did not toll the appeal period, and the
state’s notice of appeal, filed nine days after the denial of the motion to reconsider, was
untimely. State v. Suskiewich, 2014-NMSC-040.
Docketing statement treated as application for interlocutory appeal. — Where the
docketing statement proceeded on the basis that the appeal was as of right, and it was
not, the court of appeals treated the docketing statement as an application for an
interlocutory appeal, and denied it. State v. Garcia, 1977-NMCA-116, 91 N.M. 131, 571
P.2d 123.

State's right to appeal independent of statutory authority. — Where the district
court dismissed the state’s motion to revoke defendant’s probation on the ground that
the adjudicatory hearing on the motion did not occur within 100 days after defendant
was arrested contrary to the requirement of Rule 5-805 NMRA, the district court acted
as a matter of law and the state’s right to appeal stemmed from N.M. const., art. IV, § 2
and was independent of Section 39-3-3 NMSA 1978. 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.

State's constitutional right to appeal. — This section recognizes the state's
constitutional right to appeal, identifies circumstances permitting ordinary and
interlocutory appeals and affirms the constitutional prohibition against appeals that
would violate double jeopardy principles. State v. Santillanes, 1980-NMCA-183, 96 N.M.
482, 632 P.2d 359, aff'd in part, rev'd in part, 1981-NMSC-064, 96 N.M. 477, 632 P.2d
354.

The state has a constitutional right to appeal an order of the trial court which struck the
enhancement portion of an indictment and dismissed the enhancement proceeding, with
prejudice. State v. Santillanes, 1980-NMCA-183, 96 N.M. 482, 632 P.2d 359, aff'd in
part, rev'd in part, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354.

Certification is neither a jurisdictional limitation nor a mandatory precondition. —
New Mexico law does not bar appellate review when the state timely files its notice of
appeal but fails to make the necessary certification to the district court or attach a copy
of the certification to the notice of appeal. Section 39-3-3(B)(2) NMSA 1978 does not
limit the court of appeal’s general subject matter jurisdiction either expressly or
implicitly. Rule 12-202(D) NMRA does not establish a mandatory precondition to an
appeal. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107.

Remedy for failure to file a certification. — When the prosecutor files an interlocutory
appeal and fails to make a timely certification to the district court or fails to attach a copy
of the certification to the notice of appeal, the interlocutory appeal should not be
dismissed for lack of jurisdiction. Instead of summarily dismissing an appeal that may
affect a defendant’s substantive rights, the better policy is to assess the circumstances
of each case and hear the appeal when (1) the intent to appeal a specific judgment can
be fairly inferred, and (2) the defendant is not prejudiced by any technical error or
mistake. Sanctions are an appropriate means to ensure compliance with Rule 12-202
NMRA. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107.
Failure to file a certification. — Where defendant was charged with criminal sexual
contact of a minor child; the district court excluded the testimony of the child and the
parent of the child because the defense had not been able to interview them; the state
filed an interlocutory appeal that did not contain the district attorney’s certification to the
district court as provided for in 39-3-3(B)(2) NMSA 1978; and a year after filing the
interlocutory appeal and before the court of appeals heard the appeal, the state filed an
amended notice of appeal that included the certification language and stated that the
notice of appeal related back to the original notice of appeal; and the state’s intent to
appeal the exclusion of the two critical witnesses could be fairly inferred from the record
and defendant was not prejudiced by the state’s failure to attach a copy of the
certification to the notice of appeal, the court of appeals erred in dismissing the
interlocutory appeal for lack of jurisdiction. State v. Vasquez, 2014-NMSC-010, rev'g
2012-NMCA-107.

Certification language is mandatory. — Filing a timely appeal and the inclusion of the
certification that the appeal is not taken for purposes of delay and that the evidence that
has been suppressed is a substantial proof of a fact material in the proceeding in the
state’s notice of appeal are mandatory preconditions to the exercise of the court of
appeals’ jurisdiction to hear the state’s appeal and the court of appeals will not exercise
its discretion to hear the state’s appeal when the certification is lacking, absent a
showing of exceptional circumstances. State v. Vasquez, 2014-NMSC-010, rev'g 2012-
NMCA-107.

Where the district court excluded the testimony of the alleged victim and the victim’s
parent in a case of sexual contact of a minor, kidnapping and bribery of a witness; the
state filed a timely notice of appeal, but failed to certify that the appeal was not taken for
purposes of delay and that the excluded evidence was substantial proof of a material
fact in the case; the state filed an amended notice of appeal almost one year later which
included the required certification; the state never requested leave to amend the notice
of appeal or an extension of the filing deadline; and the state explained the failure to
include the certification in the notice of appeal as an inadvertent omission, the court of
appeals did not have jurisdiction to hear the appeal because the state failed to show
exceptional circumstances to justify its failure to file a notice of appeal that complied
with the mandatory statutory requirements and the amended notice of appeal did not
relate back to the filing of the original notice of appeal. State v. Vasquez, 2014-NMSC-
010, rev'g 2012-NMCA-107.

Appeals by state. — Although the state may appeal an order granting a new trial in a
criminal case, an immediate appeal is limited to an order in which it is claimed: (1) the
grant of a new trial was based on an erroneous conclusion; (2) prejudicial legal error
occurred during the trial; or, (3) newly-discovered evidence warrants a new trial. Thus,
an immediate appeal by the state of an order granting a new criminal trial is limited to
issues of law. State v. Griffin, 1994-NMSC-061, 117 N.M. 745, 877 P.2d 551.
The state may appeal any order dismissing one or more counts of a complaint,
indictment, or information, regardless of whether the dismissal is with prejudice. State v.
Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269.

The state has the right to appeal a ruling excluding the state's witness where the ruling
was based on an interpretation of the contributing to the delinquency of a minor statute
that controls the course of the presentation of material evidence in the case. State v.
Romero, 2000-NMCA-029, 128 N.M. 806, 999 P.2d 1038.

Appellate jurisdiction over a district court's order that was functionally equivalent
to a dismissal of a charged offense. — Where defendant was charged with second-
degree murder and the lesser included offense of voluntary manslaughter, and where
the district court judge found that there was no probable cause to bind defendant over
for trial on second-degree murder and entered an order binding defendant over for trial
on voluntary manslaughter alone, and where defendant argued that the New Mexico
court of appeals lacked jurisdiction to consider the state's appeal, claiming that the
district court did not "dismiss" the state's second-degree murder count, but rather
merely "diminished" the count to the lesser included offense of voluntary manslaughter,
the court of appeals had jurisdiction to review the district court's order because the
district court's order binding defendant over only on the lesser included offense of
voluntary manslaughter, when both second-degree murder and involuntary
manslaughter were charged in the state's criminal information, was functionally
equivalent to a dismissal of the second-degree murder charge, and the state is
authorized in a criminal case to appeal any order dismissing one or more counts of a
complaint, indictment or information, regardless of whether the dismissal is with or
without prejudice. State v. Benedict, 2022-NMCA-030, cert. granted.

State’s right to appeal. — Where the district court dismissed the state’s case without
prejudice after a finding that the state was not ready to proceed to trial after substitute
counsel indicated that the state would be ready to proceed, the order of dismissal was
appealable pursuant to this section regardless of whether the dismissal was without
prejudice, because the legislature intended to permit the state to appeal any order
dismissing one or more counts of a complaint, indictment, or information, regardless of
whether the dismissal is without prejudice. State v. Lucero, 2017-NMCA-079, cert.
denied.

"Substantial proof of a fact material in the proceeding" construed. — The state
may appeal pursuant to Subsection B of this section when the excluded evidence is
important or significant, as opposed to evidence of minor consequence. State v. Adams,
2019-NMCA-043, 447 P.3d 1142, aff'd by 2022-NMSC-008.

State had the right to appeal the exclusion of important or significant evidence. —
Where defendant was arrested for DWI, and where the district court excluded the
results of defendant's blood test on the basis that the emergency medical technician
who drew defendant's blood was not authorized to do so under the Implied Consent Act,
66-8-105 to 66-8-112 NMSA 1978, the state had the right to appeal the exclusion of
evidence because while the test results did not register any blood alcohol content,
defendant's blood tested positive for marijuana-related metabolites, benzodiazepines,
and synthetic opioids, and the test results were necessary to prove the amount of drugs
remaining in defendant's system at the time of arrest in order to show that he was still
impaired. Defendant's blood test results were "important or significant" under the
circumstances of this case, and therefore constitute substantial proof of a fact material
sufficient to allow an interlocutory appeal. State v. Adams, 2019-NMCA-043, 447 P.3d
1142, aff'd by 2022-NMSC-008.

Appeal after remand to magistrate. — District court's order remanding defendant's
misdemeanor DWI trial to magistrate court was, in effect, a dismissal of the charges
against defendant; thus, under the doctrine of practical finality, the appellate court had
jurisdiction to review the state's appeal. State v. Ahasteen, 1998-NMCA-158, 126 N.M.
238, 968 P.2d 328, cert. denied, 126 N.M. 532, 972 P.2d 351.

Rule restricting state's bases for appeal retracted. — Restrictive nature of Rule
71(b), N.M.R.P. Metro. Cts. (now Rule 7-703B), in providing only two bases for appeal
by the state, unconstitutionality of statute and insufficiency of complaint, limits the
state's substantive right to appeal provided by the New Mexico constitution and is
therefore invalid and retracted. Smith v. Love, 1984-NMSC-061, 101 N.M. 355, 683
P.2d 37 (decided under prior law).

Post-conviction proceedings must be invoked before habeas corpus may be
sought. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861.

Federal habeas review denied. — Because of the petitioner's default in not appealing
his convictions and sentences directly in state court, federal habeas review of his claims
is barred unless the petitioner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation; the petitioner would have to show that
some objective factor external to the defense impeded his efforts to comply with the
state's procedural rule. Lepiscopo v. Tansy, 38 F.3d 1128 (10th Cir. 1994), cert. denied,
514 U.S. 1025, 115 S. Ct. 1376, 131 L. Ed. 2d 230 (1995).

Presumption of ineffective assistance of counsel. — The conclusive presumption of
ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105
N.M. 231, 731 P.2d 374 applies to appeals from a de novo trial in district court following
a conviction in magistrate or municipal court. State v. Cannon, 2014-NMCA-058, cert.
denied, 2014-NMCERT-006.

Where defendant was convicted of aggravated DWI by a jury in magistrate court;
defendant timely appealed the conviction to district court and filed a demand for a jury
trial; the district court denied defendant’s request for a jury trial; at a bench trial, the
district court found defendant guilty of DWI; and defendant filed an untimely notice of
appeal with the district court, defense counsel was conclusively presumed to be
ineffective. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006.
Presumption of ineffective assistance of counsel applies to failure to file timely
notice of appeal. — A criminal defendant, whose counsel files an untimely notice of
appeal from the district court’s on-record review of a metropolitan court decision, is
entitled to a conclusive presumption of ineffective assistance of counsel. State v. Vigil,
2014-NMCA-096, cert. granted, 2014-NMCERT-009.

Presumption of ineffective assistance of counsel for failure to timely file a notice
of appeal still applies after four years of inaction. — The first and foremost reason
that the passage of time alone does not prevent application of the presumption of
ineffective assistance of counsel for failure to timely file a notice of appeal is based on
the fundamental premise that the rights implicated by the presumption, the right to
appeal and the right to effective assistance of counsel, protect a defendant’s
fundamental liberty interest in a fair trial. This interest is no less significant after the
deadline for appeal than it was before the deadline, nor does it diminish over time, and
therefore where defendant appealed from a stipulated corrected sentence that was
entered four years after the original judgment and sentence, after which defendant filed
neither an appeal nor an affidavit of waiver, the presumption of ineffective assistance of
counsel for failure to file a timely notice of appeal still applied. State v. Dorais, 2016-
NMCA-049, cert. denied.

Untimely notice waived where counsel ineffective. — Where defendant’s counsel
filed a notice of appeal sixty-two days after the entry of an order revoking defendant’s
probation and failed to timely file a motion for an extension of time; the court of appeals
determined that defendant had a right to counsel at the probation revocation hearing
because defendant raised issues that required assistance of counsel, the filing of the
notice of appeal was defendant’s counsel’s responsibility because it is only after the
filing of the docketing statement that trial counsel’s responsibility to the client ceases,
defendant had a fundamental liberty interest at stake in the revocation of defendant’
probation that entitled defendant to minimal due process, and defendant had a right to
appeal the revocation which defendant had not waived, the court of appeals presumed
that defendant’s counsel’s failure to timely file a notice of appeal was per se ineffective
assistance of counsel and considered defendant’s appeal as if timely filed. State v.
Leon, 2013-NMCA-011, 292 P.3d 493, cert. granted, 2012-NMCERT-012.

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and
Procedure," see 11 N.M.L. Rev. 85 (1981).

For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev.
271 (1982).

For article, "Jurisdiction as May Be Provided by Law: Some Issues of Appellate
Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Appellate Review § 223
et seq.
Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941, 149 A.L.R. 740.

Lower court's consideration, on the merits, of unseasonable application for new trial,
rehearing, or other reexamination, as affecting time in which to apply for appellate
review, 148 A.L.R. 795.

Failure, due to fraud, duress, or misrepresentation by adverse party, to file notice of
appeal within prescribed time, 149 A.L.R. 1261.

Construction of federal statute (28 USC § 2255), dealing with vacation, by direct attack,
of sentence in criminal case on ground that it violated Constitution or laws, or exceeded
jurisdiction, or is otherwise subject to collateral attack, 20 A.L.R.2d 976.

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or
perfecting appellate review, 61 A.L.R.2d 482.

Appealability of order arresting judgment in criminal case, 98 A.L.R.2d 737.

When criminal case becomes moot so as to preclude review of or attack on conviction
or sentence, 9 A.L.R.3d 462.

Adequacy of defense counsel's representation of criminal client regarding appellate and
postconviction remedies, 15 A.L.R.4th 582.

Appealability of state criminal court order requiring witness other than accused to
undergo psychiatric examination, 17 A.L.R.4th 867.

4 C.J.S. Appeal & Error § 264 et seq.