N.M. R. App. P. 12-308
N.M. R. App. P. 12-308
Committee commentary. - In 2014, the Joint Committee on Rules of Procedure amended the time computation rules, including Rules 1-006, 2-104, 3-104, 5, 104, 6-104, 7-104, 8-104, 10-107, and 12-308 NMRA, and restyled the rules to more closely resemble the federal rules of procedure. See Fed. R. Civ. Pro. 6; Fed. R. Crim. Pro. 45.
Subparagraph (A)(4) of this rule contemplates that the court may be closed or unavailable for filing due to weather, technological problems, or other circumstances. When an appellate court permits the filing of a paper at alternate locations, and one of those locations is closed and therefore unavailable for filing under Subparagraph (A)(4) of this rule, the filing deadline is extended as if all locations are closed. A person relying on Subparagraph (A)(4) to extend the time for filing a paper should be prepared to demonstrate or affirm that any location of the court was closed or unavailable for filing at the time that the paper was due to be filed under Subparagraph (A)(1), (A)(2), or (A)(3).
[Adopted by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]
.ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, completely rewrote the rule; deleted the former title "Computation of time" and added the current title; deleted former Paragraph A which provided rules for computation of time by excluding the day of the event from which the period of time began to run, including the last day of the period of time, excluding Saturdays, Sundays, legal holidays and days of severe inclement weather, and defined legal holidays; deleted former Paragraph B which provided for a three day enlargement of the period of time when a party was served by mail; and added current Paragraphs A through C. The 2009 amendment, approved by Supreme Court Order No. 09-8300-020, effective September 4, 2009, added the last sentence of Paragraph B. The 1997 amendment, effective January 1, 1997, in Paragraph A, inserted "or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk inaccessible" and substituted "one of the aforementioned days" for "a Saturday, Sunday or a legal holiday" in the second sentence, and substituted the last two sentences for "For purposes of this rule a legal holiday means any day designated as a legal or public holiday in New Mexico pursuant to Section 12-5-2 NMSA 1978, as it may be amended or recompiled, or any day during which the office of the clerk of the appropriate court is closed for any consecutive period of three (3) hours or more between 8:00 a.m. and 5:00 p.m.". The 1993 amendment, effective September 1, 1993, substituted "upon the party" for "upon him" in Paragraph B. The 1991 amendment, effective for cases filed in the supreme court and court of appeals on and after September 1, 1991, in the last sentence in Paragraph A, substituted "legal holiday means any day designated as a legal public holiday in New Mexico pursuant to Section 12-5-2 NMSA 1978, as it may be amended or recompiled, or any day" for "legal holiday shall include any day".
For computation of time under constitutional and statutory provisions, see Section 12-2A-7 NMSA 1978. For legal holidays, see Section 12-5-1 NMSA 1978 et seq. For designation of legal holidays, see Section 12-5-2 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 26. Appeal from suppression order. - Paragraph A of this rule governs the computation of the ten-day period under Section 39-3-3B(2) NMSA 1978. State v. Fernandez, 1999-NMCA-128, 128 N.M. 111, 990 P.2d 224. Legal holidays. - Although under Section 12-5-2 NMSA 1978, Good Friday is not listed as a designated legal holiday, former Rule 23(a), N.M.R. App. P. (Civ.) (see now Paragraph A of this rule) defined as a "legal holiday" for the purpose of the rules set forth for appellate civil procedure. Public Serv. Co. v. Catron, 1982-NMSC-050, 98 N.M. 134, 646 P.2d 561. Time for motion for rehearing runs from the date of the filing of the appellate court's disposition, not its service on the parties. Mora v. Williams, 111 Fed. Appx. 537 (10th Cir. 2004). Notice of cross-appeal timely. - Notice of cross-appeal filed on Monday following expiration on Saturday of period after service of notice of appeal was timely. Sierra Life Ins. Co. v. First Nat'l Life Ins. Co., 1973 -NMSC-079, 85 N.M. 409, 512 P.2d 1245. Where plaintiff served his notice of appeal by mail on Friday, February 6, defendants' ten days in which to file their notice of cross-appeal did not end until Friday, February 20 and, because they had been served by mail, they still had an additional three days in which to file their notice of cross-appeal. A.D. Powers v. Miller, 1999-NMCA-080, 127 N.M. 496, 984 P.2d 177. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 513. Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249. Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482. Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date, 98 A.L.R.2d 1331. 4 C.J.S. Appeal and Error § 1 et seq.