N.M. R. Crim. P. Dist. Ct. 5-801
N.M. R. Crim. P. Dist. Ct. 5-801
Committee commentary. - Motions to correct clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission should be brought under Rule 5-113(B) NMRA. Motions challenging the legal validity of a conviction or a sentence should be brought under Rule 5-802 or Rule 5-803 NMRA. This rule authorizes motions seeking discretionary reduction of a sentence.
This rule was originally drafted to be substantially the same as Rule 35 of the Federal Rules of Criminal Procedure. Prior to the adoption of Rule 5-801 NMRA there was confusion as to when the district court could modify a sentence. The New Mexico rule was that the district court could modify a sentence of a prisoner during the same term of the conviction, even if the defendant had already commenced to serve his sentence. See State v. White, 1962-NMSC-139, ¶ 12, 71 N.M. 342, 378 P.2d 379. The district court, however, lost all power to modify a judgment after the filing of the notice of appeal. See id. ¶ 14. The Rules of Criminal Procedure for the District Courts abolished the concept of terms of court and therefore it was desirable to have a specific rule setting forth the limits of power of the district court.
The rule, as originally drafted, limited the period of time that district court could modify a sentence to a period of thirty (30) days after imposition of sentence. Rule 5-801 was revised in 1988 to comply with the Supreme Court's decision in Hayes v. State, 1988-NMSC-021, 106 N.M. 806, 751 P.2d 186. In Hayes, the Supreme Court held that if the motion to reduce a sentence is filed within thirty (30) days after the mandate on appeal, the trial court could reduce the sentence within a reasonable time after the filing of the motion. Id. ¶ 8. The Supreme Court suggested that ninety (90) days from a timely filed motion was a reasonable time. See also Rule 35, Federal Rules of Criminal Procedure for the United States District Courts.
Under this rule, no modification of sentence can be considered by the trial court after the filing of notice of appeal. However, the trial court may modify the sentence within thirty (30) days after receipt of the mandate.
This rule is not to be construed as allowing the reduction, deferral or suspension of a sentence unless such modification of sentence is consistent with applicable New Mexico law.
A motion under this rule that is filed not later than thirty (30) days after the filing of the judgment tolls the time for appeal under the Rules of Appellate Procedure. See Rule 12-201(D)(1)(b) NMRA (2016); see also State v. Romero, 2014-NMCA-063, ¶¶ 5-13, 327 P.3d 525 (concluding that timely filing of post-judgment motion under Rule 5-801 suspends finality of judgment until a written ruling on the motion is entered).
[As amended by Supreme Court Order No. 14-8300-014, effective for all cases filed on or after December 31, 2014; as amended by Supreme Court Order No. 16-8300-014, effective for all cases pending or filed on or after December 31, 2016.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-014, effective December 31, 2016, in the committee commentary, added the last sentence regarding tolling the time for appeal under the Rules of Appellate Procedure. The 2014 amendment, approved by Supreme Court Order No. 14-8300-014, effective December 31, 2014, provided for the reduction of a sentence; in the title of the rule and Paragraph A, deleted "Modification" and added "Reduction"; deleted former Paragraph A, which authorized the court to correct an illegal sentence and a sentence imposed in an illegal manner; relettered former Paragraph B as new Paragraph A, and in the first sentence, after "the appellate court", added "on direct appeal"; and at the beginning of relettered Paragraph B, deleted "Paragraph B of". The 2009 amendment, approved by Supreme Court Order 09-8300-006, effective May 6, 2009, in Paragraph B, deleted the last sentence, which provided that the court shall determine the motion within ninety days after the date it is filed or the motion is deemed to be denied. The 1992 amendment, effective for cases filed in the district courts on or after August 1, 1992, substituted "ninety (90) days" for "thirty (30) days" in three places in the first sentence of Paragraph B. Applicability. - This rule has not been preempted by Rule 5-802 NMRA. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614. The 1986 amendment of this rule has only prospective effect. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349. Jurisdiction for motions. - Insofar as the filing of motions under this rule is concerned, this rule is jurisdictional, so that motions must be filed within 30 (now 90) days of the entry of the appellate judgment. As to the disposition of the motion, however, the court possesses discretion to hear and decide motions after 30 days. Hayes v. State, 1988-NMSC-021, 106 N.M. 806, 751 P.2d 186. Trial courts have subject matter jurisdiction to consider motions made pursuant to this rule and the denial of these motions is a final, appealable order. State v. Neely, 1994-NMSC-057, 117 N.M. 707, 876 P.2d 222. Abrogation of common law jurisdiction to correct illegal sentences. - Paragraph A of Rule 5-801 NMRA abrogated the common law principle that a district court has inherent and unlimited jurisdiction to correct illegal sentences. State v. Torres, 2012-NMCA-026, 272 P.3d 689, cert. granted, 2012-NMCERT-003, overruling State v. Abril, 2003-NMCA-111, 134 N.M. 326, 76 P.3d 644. Paragraph A of Rule 5-801 NMRA, which abrogated the common law jurisdiction of the district court to correct illegal sentences, does not violate the separation of powers doctrine. State v. Torres, 2012-NMCA-026, 272 P.3d 689, cert. granted, 2012-NMCERT-003. District court has no jurisdiction to correct illegal sentence. - Paragraph A of Rule 5-801 NMRA strictly limits the district court's jurisdiction to correct an illegal sentence to habeas corpus proceedings. State v. Torres, 2012-NMCA-026, 272 P.3d 689, cert. granted, 2012-NMCERT-003. Where defendant was sentenced to an unlawfully light term of imprisonment in 1988 and in 2006 the state discovered the error and filed a motion under Rule 5-801 NMRA to increase defendant's sentence by an additional eight years, the district court did not have jurisdiction to correct the illegal sentence. State v. Torres, 2012-NMCA-026, 272 P.3d 689, cert. granted, 2012-NMCERT-003. This rule permits alteration, but only to the extent of correcting an invalid sentence or reducing a valid sentence. State v. Sisneros, 1981-NMCA-085, 98 N.M. 279, 648 P.2d 318, aff'd in part, rev'd on other grounds, 1982-NMSC-068, 98 N.M. 201, 647 P.2d 403, aff'd, 1984-NMSC-085, 101 N.M. 679, 687 P.2d 736. Deferred sentence modified to conditional discharge. - Modification from a deferred sentence to a conditional discharge was an authorized sentence reduction under this rule. State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177. Defendant's presence not required. - It is implicit from the language of Section 39-1-1 NMSA 1978 that it is within the sound discretion of the trial court whether to direct a defendant be physically present before the court at a hearing to reconsider or modify a prior sentence. Construing the pertinent rules and statutes together, a defendant need not be present at a hearing to reconsider a sentence, except where the hearing results in the terms of the sentence being made more onerous. State v. Sommer, 1994-NMCA-070, 118 N.M. 58, 878 P.2d 1007. Unambiguous, statutorily authorized sentence not "illegal". - Defendants who received unambiguous sentences within the limits authorized by sentencing statutes cannot seek correction of "illegal sentences" under this rule. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986) (decided prior to 1986 amendment). Timing essential to modification of sentence. - Since the habeas corpus petition was not filed within ninety days of the rendition of the sentence, as required by Paragraph B, the district court did not have authority to modify the conditions of probation under this rule. State v. Trujillo, 1994-NMSC-066, 117 N.M. 769, 877 P.2d 575. Oral sentence subject to modification. - Since an orally pronounced sentence is not a final judgment and is subject to change until reduced to writing, a court has the authority to modify such sentence even though the defendant has taken actions to effect the probationary terms of the sentence. State v. Rushing, 1985-NMCA-091, 103 N.M. 333, 706 P.2d 875. Court cannot give good time credits for presentence confinement. - A district court does not have jurisdiction under this rule to correct or modify sentences by ordering that defendants be given good time credits against their sentences for the periods they spent in presentence confinement. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986). Limitation on modification of death sentence. - The district court does not have jurisdiction to modify a jury-imposed or a judge-imposed, at a nonjury trial, death sentence under the Capital Felony Sentencing Act, Section 31-20A-1 NMSA 1978 et seq. State v. Cheadle, 1985-NMSC-052, 102 N.M. 743, 700 P.2d 646. Once the jury has unanimously agreed on a sentence of death in conformance with the Capital Felony Sentencing Act, the district court has no discretion to impose a sentence of life imprisonment; it is the supreme court which automatically reviews the jury's judgment and sentence. State v. Guzman, 1985-NMSC-035, 102 N.M. 558, 698 P.2d 428. Modification of sentence based on restitution. - In a fraud case, the district court's order regarding payment of restitution within thirty days was not a proper method of achieving the district court's legitimate objective of determining whether the fraudulently obtained funds were recoverable. The district court must consider defendant's ability to pay restitution within thirty days before conditioning a portion of his term of imprisonment on payment of restitution within that time frame. State v. Whitaker, 1990-NMCA-014, 110 N.M. 486, 797 P.2d 275. Revocation of parole on only one count where probation granted on multiple concurrent sentences. - When a defendant was sentenced to multiple concurrent sentences, and the trial court suspended the sentences and placed the defendant on probation which he subsequently violated, the trial court could not invoke the original sentence on one count only and provide that probation would continue on the other counts. The effect of applying revocation to one count only and reserving probation on the remaining counts for possible imposition of imprisonment on any or all of the remaining counts upon future violations is to change an original valid concurrent sentence into consecutive sentences and creates an increase in penalty which violates the constitutional prohibition against double jeopardy. State v. Martinez, 1982-NMCA-185, 99 N.M. 248, 656 P.2d 911. Plea agreement to serve concurrent sentences out-of-state. - Where, in accordance with a plea bargain, in exchange for the defendant's guilty plea and his agreement to waive extradition to another state, the time to be served on concurrent New Mexico sentences was to be served out of the state concurrently with any sentence imposed by the out-of-state court, the New Mexico court could not later order the out-of-state court to return the defendant to New Mexico to serve concurrent out-of-state and New Mexico sentences here. State v. Sykes, 1982-NMCA-119, 98 N.M. 458, 649 P.2d 761. Upon the filing of notice of appeal from order, trial court loses jurisdiction of the case, except for the purpose of perfecting the appeal. State v. Garcia, 1983-NMCA-017, 99 N.M. 466, 659 P.2d 918. Effect of pending post-judgment motion on the finality of the judgment. - The timely filing of a post-judgment motion pursuant to Rule 5-801 NMRA suspends the finality of the preceding judgment and sentence until such time as a written ruling upon the motion is entered. State v. Romero, 2014-NMCA-063. Effect of pending post-judgment motion on an appeal. - Where defendants timely filed post-judgment motions to reconsider their sentences and while the motions were pending, defendants filed notices of appeal, the judgments were not final, the appeals were premature, and the Court of Appeals lacked jurisdiction. State v. Romero, 2014-NMCA-063. Am. Jur. 2d, A.L.R. and C.J.S. references. - Right of convicted defendant or prosecution to receive updated presentence report at sentencing proceedings, 22 A.L.R.5th 660.