N.M. R. App. P. 12-303

As amended through August 23, 2024

Rule 12-303 - Appointment of counsel

A.Criminal cases and delinquency proceedings.

(1)Appeal by the defendant or respondent. Unless trial counsel intends to continue the representation or appellate counsel has been retained, trial counsel for the defendant in a criminal case or the respondent in a children's court delinquency proceeding shall, before filing of the notice of appeal, seek a district court order appointing the appellate division of the public defender department. If the district court orders the appointment, and the public defender appellate division is unable to represent the defendant or respondent on appeal or is unable to arrange for contract representation, the district court shall appoint appellate counsel. Before making an appointment, the district court, in its discretion, may hold a hearing to determine the eligibility for appointed counsel.

(2)Appeal by the state. If the notice of appeal has been filed by the state, trial counsel for the defendant in a criminal case or the respondent in a delinquency proceeding shall be responsible for representing the defendant or respondent on appeal unless, within five (5) days after service of the notice of appeal, the district court orders the appointment of the appellate division of the public defender department.

(3)Filing and mailing of order. If the district court appoints the appellate division of the public defender department or other counsel to represent on appeal a defendant in a criminal case or a respondent in a delinquency proceeding, the district court shall file the order appointing counsel and promptly submit a copy to the appellate court, appellate division of the office of the attorney general, and appellate division of the public defender department.

(4)Review by appellate court. Within ten (10) days after entry of a district court order denying the appointment of counsel, the defendant in a criminal case or the respondent in a delinquency proceeding may file in the appellate court a motion to review the district court order. The motion shall describe any relevant testimony presented to the district court and shall be accompanied by a copy of the motion filed in the district court, along with a copy of any relevant documentary evidence presented to the district court, and a copy of the order denying the motion. Review under this paragraph shall proceed in accordance with the procedure set forth in Rule 12-204(B)-(C) NMRA except that the public defender shall also be entitled to file a response.

B.Abuse and neglect proceedings. Unless trial counsel intends to continue the representation or appellate counsel has been retained to represent the respondent in an abuse and neglect proceeding, including a proceeding to terminate parental rights, trial counsel shall be responsible for seeking an order from the Court of Appeals appointing appellate counsel.

N.M. R. App. P. 12-303

As amended by Supreme Court Order No. 14-8300-004, effective for all cases filed on or after7/1/2014.

Committee commentary. - This rule addresses appointment of appellate counsel in criminal cases and in children's court cases governed by the Children's Court Rules. See Rule 10-101(A)(1) NMRA. The committee revised this rule in 2014 to clarify that the Court of Appeals, not the district court, appoints appellate counsel in abuse and neglect proceedings, including proceedings to terminate parental rights.

In the unusual circumstance of an appeal from proceedings under the Families in Need of Court-Ordered Services Act, NMSA 1978, §§ 32A-3B-1 to -22, the appointment of appellate counsel would be governed by Paragraph B of this rule. See Rule 10-101(A)(6) NMRA ("[U]nless otherwise provided, the rules and forms governing abuse and neglect proceedings shall apply to proceedings pursuant to the Families in Need of Court-Ordered Services Act.").

[Adopted by Supreme Court Order No. 14-8300-004, effective for all cases filed on or after July 1, 2014.]

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ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-004, effective July 1, 2014, clarified and simplified the language for appointment of appellate counsel in criminal cases and in children's court cases; in Paragraph A, in the title of the paragraph, after "Criminal", added "cases and" and after "delinquency", deleted "and need of supervision cases" and added "proceedings"; in Subparagraph (1) of Paragraph A, added the title; in Subparagraph (1) of Paragraph A, in the first sentence, after "Unless", added "trial counsel intends to continue the representation or", after "has been retained", deleted "to represent" and added "trial counsel for the defendant in a criminal case or", after "children's court delinquency", deleted "or need of supervision", after "delinquency proceeding", deleted "or the defendant in a criminal case, prior to the" and added "shall, before", and after "notice of appeal", deleted "trial counsel shall obtain from the district judge and file in the", added "seek a", after "seek a district court", deleted "an", and after "public defender department", deleted "as appellate counsel"; in Subparagraph (1) of Paragraph A, in the second sentence, deleted "In the event that" and added "If the district court orders the appointment, and", after "unable to represent the", added "defendant or", after "defendant or respondent", deleted "or defendant", and after "on appeal", added "or is unable to arrange for contract representation"; in Subparagraph (1) of Paragraph A, in the third sentence, deleted "Prior to entering an order" and added "Before making an appointment"; in Subparagraph (2) of Paragraph A, in the title, after "Appeal by", added "the", after "trial counsel for the" added "defendant in a criminal case or the", after "in a delinquency", deleted "or need of supervision case or for the defendant in a criminal case" and added "proceeding", after "responsible for representing the", added "defendant or", after "defendant or respondent", deleted "or defendant", and after "notice of appeal", deleted "trial counsel obtains and files in the district court the order appointing" and added "the district court orders the appointment"; in Subparagraph (3) of Paragraph A, after "If", deleted "an order is entered by", after "If the district court", deleted "appointing" and added "appoints", after "counsel to represent on appeal a", added "defendant in a criminal case or a", after "respondent in a delinquency", deleted "or need of supervision case or a defendant in a criminal case, it" and added "proceeding, the district court", after "the district court shall", deleted "be the responsibility of trial counsel to file the order with the district court clerk. The district court clerk shall" and added "file the order appointing counsel and", after "promptly", deleted "mail" and added "submit", after "submit a copy", deleted "of the order appointing the appellate division of the public defender department or other counsel as counsel for the appeal"; in Subparagraph (4) of Paragraph A, in the first sentence, after "defendant in a criminal case", added "or", after "respondent in a delinquency", deleted "or need of supervision case or the respondent in a termination of parental rights case" and added "proceeding"; in Subparagraph (4) of Paragraph A, in the second sentence, after "The motion", added "shall describe any relevant testimony presented to the district court and", after "shall be accompanied", deleted "by the docket fee and", and after "filed in the district court", added "along with a copy of any relevant documentary evidence presented to the district court"; in Subparagraph (4) of Paragraph A, in the third sentence, after "Review", deleted "pursuant to" and added "under", after "set forth in", deleted "Paragraphs B and C of", and after "Rule 12-204", added "(B)-(C)"; deleted former Paragraph B, which provided for the appointment of appellate counsel in a proceeding terminating parental rights when appellate counsel had not been retained; and added a new Paragraph B. Am. Jur. 2d, A.L.R. and C.J.S. references. - Existence and extent of right of litigant in civil case, or of criminal defendant, to represent himself before state appellate courts, 24 A.L.R.4th 430.