N.M. R. App. P. 12-402

As amended through November 1, 2024

Rule 12-402 - Issuance and stay of mandate

A.Entry of disposition. Writings evidencing disposition by the appellate court shall be filed with the appellate court clerk and the filing constitutes entry thereof.

B.Supreme Court. Unless otherwise ordered, mandate shall not issue until expiration of fifteen (15) days after the latest of the following events:

(1) entry of disposition of the proceedings;

(2) the Supreme Court's modification of its disposition on the Court's own motion; or

(3) the Supreme Court's modification of its disposition following the grant of a timely motion for rehearing under Rule 12-404 NMRA.

C.Court of Appeals. Mandate from the Court of Appeals shall not issue until the time has elapsed for seeking certiorari in the Supreme Court. If certiorari is sought, mandate shall not issue until final disposition of the application for the writ or, if the writ is granted, until final action on the cause by the Supreme Court. For good cause shown, the Court of Appeals may recall its mandate within ten (10) days of issuance thereof.

D.Stipulated mandate. The appellate court may, on stipulation of the parties, issue mandate or other process prior to the time or times above specified.

E.Stay of mandate pending appeal or application for certiorari in the United States Supreme Court. A stay or recall of the mandate pending appeal or application to the United States Supreme Court for a writ of certiorari may be granted on motion. The stay shall not exceed sixty (60) days unless the period is extended for cause shown. If during the period of the stay there is filed with the appellate court clerk a notice from the clerk of the United States Supreme Court that the party who has obtained the stay has filed an appeal or a petition for the writ in that court, the stay shall continue until final disposition. On the filing of a copy of an order denying the petition for writ of certiorari or dismissing the appeal, or a judgment affirming the decision of the court, the mandate shall issue immediately. If the petition for writ of certiorari seeks review of a decision of the Court of Appeals, and if the Court of Appeals has denied a stay or recall of mandate under this paragraph, the petitioner may obtain review of the Court of Appeals' action in the Supreme Court by filing a motion in the Supreme Court within ten (10) days of the Court of Appeals' denial.

N.M. R. App. P. 12-402

As amended by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after12/31/2016.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, revised the timing for the issuance of the mandate, and made stylistic and technical changes; in Paragraph (A), after "appellate court clerk and", deleted "such" and added "the"; in Paragraph (B), after "(15) days after", deleted "entry of disposition of the proceedings and, if timely motion for rehearing is filed, then upon disposition of such motion for rehearing" and added "the latest of the following events"; added new Subparagraphs (B)(1), (B)(2), and (B)(3); in Paragraph (D), deleted "Upon" and added "The appellate court may, on", after "parties" added "issue", and after "process", deleted "may issue"; and in Paragraph (E), changed "upon" to "on" in two places.

For appeal as stay of execution, see Section 31-11-1 NMSA 1978. For continuation of case from term to term, see Section 39-3-6 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 41. Effect of judgment on parties who do not appeal. - Where part of a judgment appealed from is so interwoven and connected with the remainder of the judgment; the appeal from a part of the judgment involves a consideration of the whole; and reversal is ordered, the district court does not abuse its discretion by extending the order of reversal to the entire judgment. In re Estate of Duran, 2007-NMCA-068, 141 N.M. 793, 161 P.3d 290. District court not required to give notice as condition precedent to commitment order. - With the issuance of mandate by the appellate court, the district court is directed to issue a commitment order. Accordingly, the district court is not required to give notice to the defendant, his attorney, or his bondsmen as a condition precedent to the issuance of the commitment order. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861. Jurisdiction of Supreme Court. - Upon mandate having been issued by the Supreme Court and action having been taken thereon in the district court, jurisdiction of the Supreme Court would have been at an end under former Supreme Court Rules. Woodson v. Lee, 1964-NMSC-106, 74 N.M. 227, 392 P.2d 419. Supreme Court opinion, not mandate, conclusive. - Upon remand, the district court was required to look to the opinion of the Supreme Court, not to the mandate, and, if there was any conflict in the Supreme Court's opinion and the mandate, the mandate had to give way to the court's opinion as the law of the case under former Supreme Court Rules. Wilson v. Employment Sec. Comm'n, 1966-NMSC-147, 76 N.M. 652, 417 P.2d 455. Denials of petitions for certiorari writs. - The extension of finality for mandate issuance under Paragraph B of this rule does not apply to denials of petitions for writs of certiorari by the New Mexico Supreme Court. Mora v. Williams, 111 Fed. Appx. 537 (10th Cir. 2004). Time of final disposition. - Under former Supreme Court Rules, a civil case was considered to be finally disposed of and the mandate issued when time for filing a motion for rehearing had expired without a motion having been filed or if a motion had been filed, when the same was denied. Bobrick v. State, 1972-NMCA-048, 83 N.M. 657, 495 P.2d 1104. Under former Supreme Court Rules, a civil case was considered to be finally disposed of and the mandate issued when time for filing a motion for rehearing had expired without a motion being filed or if a motion had been filed, when the same was denied. If a new opinion had been filed after motion for rehearing, 20 days were allowed to elapse before mandate was issued, unless an order was entered directing otherwise. Woodson v. Lee, 1964-NMSC-106, 74 N.M. 227, 392 P.2d 419. Legal question on subsequent appeal. - If an appellate court had considered and passed upon a question of law and remanded the case for further proceedings, the legal question so resolved would not be determined in a different manner on a subsequent appeal under former Supreme Court Rules. Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 1972-NMSC-018, 83 N.M. 558, 494 P.2d 971. Law reviews. - For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 591 et seq. Reversal of judgment as affecting another judgment based on the reversed judgment and rendered pending the appeal, 81 A.L.R. 712. Power of appellate court to reconsider its decision after mandate has issued, 84 A.L.R. 579. Reversal upon appeal by, or grant of new trial to, one coparty defendant against whom judgment was rendered, as affecting judgment in favor of other coparty defendants, 166 A.L.R. 563. Stay or supersedeas on appellate review in mandamus, 88 A.L.R.2d 420. 5B C.J.S. Appeal and Error §§ 1835 to 2003.