N.M. R. Child. Ct. 10-213
N.M. R. Child. Ct. 10-213
Committee commentary. - Due to the need for the timely disposition of matters under the Delinquency Act, the committee intends the ten (10)-day period stated in Paragraph B to apply irrespective of whether the child is in custody. Contra Rule 5-302(D) NMRA (providing that a preliminary hearing shall be held no later than sixty (60) days following the initial appearance if the defendant is not in custody); Rule 5-302A NMRA (providing no time limit for the initiation of grand jury proceedings). A waiver of the right to a probable cause determination shall be knowing, voluntary, and intelligent and shall be in writing substantially in the form approved by the Supreme Court. See Form 10-433 NMRA (waiver of preliminary examination and grand jury proceeding).
[As amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order No. 14-8300-015, effective December 31, 2014.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-015, effective December 31, 2014, provided that an extension of time to file a notice of intent to seek adult sanctions shall not exceed thirty days; provided a ten day time limitation to determine probable cause and a thirty day limit on extensions of time to determine probable cause; required that probable cause be determined in a preliminary examination; provided for the disposition of the case if there is a finding of no probable cause; provided that the failure to comply with the time limits precludes imposing adult sanctions against the child; in the title, deleted "Youthful" and added "Initiation of youthful" and after "proceedings", deleted "filing of notice" and added "probable cause determination"; in Paragraph A, in the first sentence, after "children's court a notice of intent to", deleted "request the court to treat the respondent child as a 'youthful offender', as that term is defined in the Children's Code" and added the remainder of the sentence, and in the second sentence, deleted "At any time prior to the commencement of the adjudicatory proceeding, upon good cause shown, the", after "The court may", deleted "permit the" and added "extend the time for", and after "filing of a notice of intent to", deleted "invoke an adult sentence" and added the remainder of the sentence; in Paragraph B, deleted the former language which required that a preliminary hearing be held within fifteen days after a notice of intent to invoke an adult sentence was filed unless the case was presented to a grand jury or the child waived a preliminary hearing or grand jury; in Paragraph B, added Subparagraphs (1) through (3); and added Paragraphs C and D. The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraphs A and B, changed "child" to "respondent child"; in Paragraph B, changed 10 days to 15 days, added the last sentence, and deleted the sentence which provided that a preliminary hearing may be conducted by the children's court judge or by a magistrate court or metropolitan court judge; deleted former Paragraph C which provided for the transfer of the case to the magistrate or metropolitan court for preliminary examination and the transfer back to the children's court judge with findings of no probable cause or probable cause; and deleted former Paragraph D which provided for the reopening of the case by the original children's court judge after transfer by the magistrate or metropolitan court. The 1999 amendment, effective for cases filed in the Children's Court on and after May 3, 1999, designated the existing paragraph as Paragraph A, and added Paragraphs B through D. The 1997 amendment, effective April 1, 1997, substituted "proceedings; filing of notice" for "hearing; general procedure" in the rule heading, deleted the Paragraph A designation and the former Paragraph A heading, substituted "child" for "respondent" and added "as that term is defined in the Children's Code" in the first sentence, and deleted former Paragraphs B and C relating to bail and criminal proceedings. The 1995 amendment, effective July 1, 1995, substituted "Youthful offender" for "Transfer" in the section heading and rewrote this rule. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-222 NMRA was recompiled as Rule 10-213 NMRA, effective January 15, 2009. Untimely preliminary hearing. - Where a preliminary hearing was held twenty-four days after the state filed notice of intent to charge the child as a youthful offender, the court did not commit reversible error in denying the child's motion to dismiss because neither Rule 10-213 NMRA nor Section 32A-2-20 NMSA 1978 provides a remedy for a violation of the time limits for holding a preliminary hearing. State v. Leticia T., 2012-NMCA-050, 278 P.3d 553, cert. granted, 2012-NMCERT-005. Denial of a transfer motion under either 32-1-29 or 32-1-30 NMSA 1978 is not final; it simply leaves the case in the children's court for further proceedings. State v. Doe, 1983-NMCA-015, 99 N.M. 460, 659 P.2d 912 (decided prior to 1995 amendment). And court empowered to reconsider denial. - The children's court has the inherent power to reconsider, by reason of its nonfinal nature, an order denying a motion to transfer. State v. Doe, 1983-NMCA-015, 99 N.M. 460, 659 P.2d 912 (decided prior to 1995 amendment). Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - Possibility of rehabilitation as affecting whether juvenile offender should be tried as adult, 22 A.L.R.4th 1162. 43 C.J.S. Infants § 45.