NM Stat § 39-3-3 (2021)
2021 New Mexico Statutes|Chapter 39 - Judgments, Costs, Appeals|Article 3 - Appeals|Section 39-3-3 - Appeals from district court in criminal cases.

A. By the defendant. In any criminal proceeding in district court an appeal may be taken by the defendant to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts: (1) within thirty days from the entry of any final judgment; (2) within ten days after entry of an order denying relief on a petition to review conditions of release pursuant to the Rules of Criminal Procedure [Rule 5-101 NMRA]; or (3) by filing an application for an order allowing an appeal in the appropriate appellate court within ten days after entry of an interlocutory order or decision in which the district court, in its discretion, makes a finding in the order or decision that the order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from such order or decision may materially advance the ultimate termination of the litigation. B. By the state. In any criminal proceeding in district court an appeal may be taken by the state to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts: (1) within thirty days from a decision, judgment or order dismissing a complaint, indictment or information as to any one or more counts; (2) within ten days from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property, if the district attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. C. No appeal shall be taken by the state when the double jeopardy clause of the United States constitution or the constitution of the state of New Mexico prohibits further prosecution. History: 1953 Comp., § 21-10-2.1, enacted by Laws 1972, ch. 71, § 2. ANNOTATIONSCross references. — For supreme court jurisdiction, see N.M. Const., art. VI, § 2; 38-3-2, 39-3-4 NMSA 1978. For court of appeals jurisdiction, see N.M. Const., art. VI, § 29; 34-5-8 NMSA 1978. For Uniform Certification of Questions of Law Act, see Chapter 39, Article 7 NMSA 1978. For how and when appeal as of right taken, see Rule 12-201 NMRA. For interlocutory appeals by permission, see Rule 12-203 NMRA. For appeals from orders regarding release entered prior to a judgment of conviction, see Rule 12-204 NMRA. For procedure on certiorari to review decision of court of appeals, see Rule 12-502 NMRA. For procedure on certification from court of appeals, see Rule 12-606 NMRA. State's appeal was proper where district court's ruling adversely impacted the state's capacity to present evidence. — Where defendant was charged with homicide by vehicle and driving while under the influence of intoxicating liquor or drugs, the state's appeal of the district court's pretrial ruling prohibiting one of the state's witnesses from testifying as an expert was proper under this section, because the district court's ruling adversely impacted the state's capacity to present evidence that went to the heart of the proof required to establish the element of causation.  State v. Ruffin, 2019-NMCA-009.Repeals and reenactments. — Laws 1972, ch. 71, § 2 repealed 21-10-2.1, 1953 Comp., relating to allowing appeals to defendants, and enacted a new section. Dismissal of charges was not an acquittal and was subject to appeal. — Where defendant's codefendant was acquitted in a separate trial of the identical charges that had been filed against defendant and the trial court adjudged defendant not guilty based on the codefendant's acquittal and dismissed the charges against defendant before defendant's trial had begun, the order of dismissal was not an acquittal of defendant and was appealable by the state. State v. Arevalo, 2002-NMCA-062, 132 N.M. 306, 47 P.3d 866. Double jeopardy did not bar state appeal. — Where defendant moved to dismiss the charges for lack of venue at jury selection and the trial court reserved a ruling until the close of the state's case in chief where the trial court granted defendant's motion, and double jeopardy had attached, double jeopardy did not bar the state's appeal. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCER-003, 139 N.M. 353, 132 P.3d 1039. "Sufficiently aggrieved" rationale of finality rule. — One exception to the general rule that an appeal lies only from a final judgment, or a practical construction of the term "finality", exists when the consequences of an order that is not the last contemplated order in the case are sufficiently severe that the aggrieved party should be granted a right to appeal to alleviate hardship that would otherwise accrue if the appeal were delayed. State v. Durant, 2000-NMCA-066, 129 N.M. 345, 7 P.3d 495. "Sufficiently aggrieved" rationale allows appeal. — Where a jury convicted defendant of felony charges, the trial court entered a conditional discharge order pursuant to Section 31-20-13 NMSA 1978, which provided that without adjudication of guilt, further proceedings would be deferred and ordered defendant to be placed on probation, complete supervision required by the probation authorities, and complete alcohol treatment, defendant had a right to appeal the conditional discharge order because, unless defendant is permitted to appeal the order, the order could be used to enhance the sentence under Section 31-18-17 NMSA 1978. State v. Durant, 2000-NMCA-066, 129 N.M. 345, 7 P.3d 495. Where a juvenile was sentenced to six months probation pursuant to a conditional consent decree, the juvenile was sufficiently aggrieved by the decree to allow an appeal even though the consent decree was not the last order contemplated in the case, because even though the charges against the juvenile may be dismissed, the fact of the charges and the consent decree may be considered if other charges arise while the juvenile is a child. State v. Crystal B., 2001-NMCA-010, 130 N.M. 336, 24 P.3d 771. State's appeal of granting of suppression order. — The state cannot appeal the exclusion of an inadmissible blood alcohol report under Section 39-3-3B(2) NMSA 1978, and double jeopardy precludes the state from trying defendant again because the state refused to present any evidence to satisfy the elements of the charged offense after the jury was impaneled. State v. Gomez, 2006-NMCA-132, 140 N.M. 586, 144 P.3d 145. Supreme court jurisdiction. — The legislature intended the supreme court to have jurisdiction over interlocutory appeals in situations where a defendant may possibly be sentenced to life imprisonment or death. State v. Smallwood, 2007-NMSC-005, 141 N.M. 178, 152 P.3d 821. The supreme court has exclusive jurisdiction over interlocutory appeals from pretrial release orders in cases where the defendant faces a possible sentence of life imprisonment or death. State v. Brown, 2014-NMSC-038. Children's court cases. — Because juvenile delinquency proceedings are sufficiently similar to criminal proceedings, Section 39-3-3B(2) NMSA 1978 governs in the circumstances of interlocutory appeals of suppression orders from a children's court. State v. Jade G., 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Appellate jurisdiction over a district court's decision in an on-record appeal from metropolitan court. — This section does not distinguish the appeal of a judgment in a criminal case originating in the district court from one originating in the metropolitan court, nor does it distinguish the appeal of a district court's on-record review from the appeal of a district court's de novo trial, and therefore the New Mexico court of appeals has appellate jurisdiction to review decisions made in on-record appeals to the district court from the metropolitan court. State v. Armijo, 2016-NMSC-021, aff'g 2014-NMCA-013, 316 P.3d 902. "Criminal proceeding" includes on-record appellate decisions of the district court. — This section provides defendants in "any criminal proceeding" with the right to appeal a final judgment of the district court to the court of appeals, a reasonable interpretation of which includes a defendant's right to appeal a district court's review of an on-record metropolitan court decision. State v. Carroll, 2015-NMCA-033, cert. granted, 2015-NMCERT-001. Where defendant was convicted of DWI following a bench trial in metropolitan court, appealed the conviction to the district court for on-record review, which was affirmed by the district court, and then appealed the district court's decision to the court of appeals, the state's claim that there is no express right to appeal a district court's on-record appellate review of a metropolitan court conviction for DWI was in error; a reasonable interpretation of "criminal proceeding" includes a district court's on-record review of a metropolitan court decision; therefore a defendant has the right to appeal a district court's review of an on-record metropolitan court decision. State v. Carroll, 2015-NMCA-033, cert. granted, 2015-NMCERT-001. District court jurisdiction over issues not included in appeal. — Where defendant was indicted by two separate grand juries; the two indictments were joined for trial; defendant was convicted of violating an order of protection; the district court declared a mistrial on the remaining charges, because the jury was unable to reach a verdict; defendant appealed the conviction of violating an order of protection; and during the pendency of defendant's appeal, defendant was retried and convicted on the mistrial charges, defendant's appeal was limited to only the conviction of violating an order of protection and the district court retained jurisdiction to retry the unresolved charges. State v. Gutierrez, 2011-NMCA-088, 150 N.M. 505, 263 P.3d 282, cert. denied, 2011-NMCERT-008, 268 P.3d 513. Appeal of exclusion of statements made during a SANE examination. — Where the trial court excluded the victim's statements to a sexual assault nurse examiner on the morning of trial; the jury had been impaneled, but not sworn; the victim's statements identified the defendant as the perpetrator and described the criminal acts; and the victim was available to testify, the state's appeal was timely and the evidence was sufficiently material to support an appeal. State v. Mendez, 2009-NMCA-060, 146 N.M. 409, 211 P.3d 206, rev'd on other grounds, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328. Appeal of exclusion of prior convictions in the penalty phase of a capital felony case. — In a capital felony case, the state has a statutory right to an interlocutory appeal of the district court's pre-trial order excluding the per se introduction of the defendant's prior convictions during the penalty phase of the defendant's trial when the evidence is substantial proof of a fact material in the proceeding. State v. Sanchez, 2008-NMSC-066, 145 N.M. 311, 198 P. 3d 337. An order denying and dismissing a petition to revoke probation is not an order from which an appeal can be taken under this section. State v. Grossetete, 2008-NMCA-088, 144 N.M. 346, 187 P.3d 692, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677. History of section. State v. Santillanes, 1980-NMCA-183, 96 N.M. 482, 632 P.2d 359, cert. denied, 95 N.M. 426, 622 P.2d 1046, aff'd in part, rev'd in part, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354. Computation of time period. — Rule 12-308A NMRA governs the computation of the ten-day period under Paragraph B(2). State v. Fernandez, 1999-NMCA-128, 128 N.M. 111, 990 P.2d 224. Late filing of appeal. — Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Court error may excuse late appeal. — One unusual circumstance that would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Supreme court has authority to issue writs of certiorari directed to the court of appeals in a criminal case where the conditions of 34-5-14 NMSA 1978 are met, and the court's original jurisdiction to issue writs of certiorari, as provided for in N.M. Const., art. VI, § 3, leaves no doubt as to the power of the court to issue such writs. State v. Gunzelman, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55, overruled on other grounds by State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146. Entry of judgment. — An appeal can be taken only after entry of judgment. State v. Edmondson, 1991-NMCA-069, 112 N.M. 654, 818 P.2d 855, cert. quashed, 112 N.M. 641, 818 P.2d 419. Final order. — An order is final if all issues of law and fact necessary to be determined have been determined and the case has been completely disposed of to the extent that the court has power to dispose of it. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801 P.2d 660, cert. denied, 111 N.M. 164, 803 P.2d 253. Initial orders not final. — Where the trial court had made only the initial orders in a multi-part proceeding to determine defendant's competency to stand trial for murder, the orders finding defendant dangerous and incompetent to stand trial from which he appealed were not final orders subject to appellate review. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801 P.2d 660, cert. denied, 111 N.M. 164, 803 P.2d 253. Order allowing withdrawal of a plea agreement is not a final order for purpose of filing an appeal under Subsection B(1) of this section. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96 P.3d 1192. Where the district court specifically found that the state presented no witnesses or evidence to substantiate its claim that its case would be prejudiced by a loss of witnesses or evidence if the plea was withdrawn, without a factual basis in the record, the state=s bare assertions of prejudice gives no reason to find such a substantial interest so as to create an exception to the rule requiring appeals be taken only from final orders. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96 P.3d 1192. Magistrate court orders suppressing evidence were not final orders in either an actual or practical sense. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Order disqualifying counsel. — A trial court order disqualifying defendant's counsel is not a final, appealable order. State v. Pacheco, 1993-NMCA-033, 115 N.M. 325, 850 P.2d 1028. Review of disqualification of prosecutor. — On appeal from an order dismissing an indictment the appellate courts may also review a second portion of the order that disqualifies the prosecutor on grounds related to those supporting the dismissal of the indictment. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269. Allowance of interlocutory appeal is discretionary with the appellate court. State v. Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied, 95 N.M. 299, 621 P.2d 516. Trial court does not have authority to grant interlocutory appeal. State v. Garcia, 1977-NMCA-116, 91 N.M. 131, 571 P.2d 123. When permission to appeal from interlocutory order is denied, the appellate court never assumes jurisdiction of the matter, consequently, jurisdiction remains in the trial court and there is nothing to prevent the trial court from proceeding to try the pending case. State v. Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied, 95 N.M. 299, 621 P.2d 516. Court of appeals granted interlocutory appeal on denied motion to dismiss. — Where on the basis of the municipal court convictions defendant moved that the indictment be dismissed, claiming the district court prosecution was barred by the constitutional prohibition against double jeopardy which the district court denied, the court of appeals granted an interlocutory appeal pursuant to this section. State v. Tanton, 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269, rev'd on other grounds, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813. Exceptions to dismissal of indictment or information. — Although Subsection B(1) of this section requires that the order dismiss the indictment or information, there are exceptions to this general rule. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96 P.3d 1192. No appeal from denial of motion to suppress. — Where defendant filed a motion to suppress which was denied by the trial court, and defendant attempted to appeal from that order, relying on language of the trial court attempting to grant an interlocutory appeal, there was no final judgment in this case or any matter involving conditions of release, and the appeal did not come within this section. State v. Garcia, 1977-NMCA-116, 91 N.M. 131, 571 P.2d 123. Appeal from suppression order. — Since the state has no constitutional appeal as of right from a suppression order, the time for filing such an appeal is governed by the ten-day limit in Paragraph B(2) of this section and not the thirty-day limit provided for in Rule 12-201A NMRA. State v. Alvarez, 1991-NMCA-115, 113 N.M. 82, 823 P.2d 324, cert. denied, 113 N.M. 23, 821 P.2d 1060. Because the state did not intend to use at trial any of the physical evidence seized or statements made as the result of a stop, the state would have been unable to, and indeed was not required, to appeal the suppression order within ten days after the trial court's ruling. State v. Harris, 1993-NMCA-115, 116 N.M. 234, 861 P.2d 275. The right of the state to appeal orders of suppression from the district court is created by statute as set forth in Subsection B of this section, which has been held not to be a statutory codification of the state's constitutional right to appeal. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. The state may obtain judicial review of a suppression order of a magistrate court by filing a nolle prosequi to dismiss some or all of the charges in the magistrate court after the suppression order is entered, and refiling in the district court for a trial de novo. State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Timeliness of appeal. — Where the suppression orders were filed on January 15, 2003, and the notice of appeal was filed on January 24, 2003, it was timely under Subsection B(2) of this section. State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Tolling of appeal period. — Motions to reconsider filed within the permissible appeal period suspend the finality of an appealable order or judgment and toll the time to appeal until the district court has ruled on the motion. State v. Suskiewich, 2014-NMSC-040. Untimely notice of appeal. — Where state's motion to reconsider district court's order suppressing evidence was filed outside the permissible ten-day appeal period set forth in Subsection B(2) of this section, the motion did not toll the appeal period, and the state's notice of appeal, filed nine days after the denial of the motion to reconsider, was untimely. State v. Suskiewich, 2014-NMSC-040. Docketing statement treated as application for interlocutory appeal. — Where the docketing statement proceeded on the basis that the appeal was as of right, and it was not, the court of appeals treated the docketing statement as an application for an interlocutory appeal, and denied it. State v. Garcia, 1977-NMCA-116, 91 N.M. 131, 571 P.2d 123. State's right to appeal independent of statutory authority. — Where the district court dismissed the state's motion to revoke defendant's probation on the ground that the adjudicatory hearing on the motion did not occur within 100 days after defendant was arrested contrary to the requirement of Rule 5-805 NMRA, the district court acted as a matter of law and the state's right to appeal stemmed from N.M. const., art. IV, § 2 and was independent of Section 39-3-3 NMSA 1978. State v. Montoya, 2011-NMCA-009, 149 N.M. 242, 247 P.3d 1127, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900. State's constitutional right to appeal. — This section recognizes the state's constitutional right to appeal, identifies circumstances permitting ordinary and interlocutory appeals and affirms the constitutional prohibition against appeals that would violate double jeopardy principles. State v. Santillanes, 1980-NMCA-183, 96 N.M. 482, 632 P.2d 359, aff'd in part, rev'd in part, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354. The state has a constitutional right to appeal an order of the trial court which struck the enhancement portion of an indictment and dismissed the enhancement proceeding, with prejudice. State v. Santillanes, 1980-NMCA-183, 96 N.M. 482, 632 P.2d 359, aff'd in part, rev'd in part, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354. Certification is neither a jurisdictional limitation nor a mandatory precondition. — New Mexico law does not bar appellate review when the state timely files its notice of appeal but fails to make the necessary certification to the district court or attach a copy of the certification to the notice of appeal. Section 39-3-3(B)(2) NMSA 1978 does not limit the court of appeal's general subject matter jurisdiction either expressly or implicitly. Rule 12-202(D) NMRA does not establish a mandatory precondition to an appeal. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Remedy for failure to file a certification. — When the prosecutor files an interlocutory appeal and fails to make a timely certification to the district court or fails to attach a copy of the certification to the notice of appeal, the interlocutory appeal should not be dismissed for lack of jurisdiction. Instead of summarily dismissing an appeal that may affect a defendant's substantive rights, the better policy is to assess the circumstances of each case and hear the appeal when (1) the intent to appeal a specific judgment can be fairly inferred, and (2) the defendant is not prejudiced by any technical error or mistake. Sanctions are an appropriate means to ensure compliance with Rule 12-202 NMRA. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Failure to file a certification. — Where defendant was charged with criminal sexual contact of a minor child; the district court excluded the testimony of the child and the parent of the child because the defense had not been able to interview them; the state filed an interlocutory appeal that did not contain the district attorney's certification to the district court as provided for in 39-3-3(B)(2) NMSA 1978; and a year after filing the interlocutory appeal and before the court of appeals heard the appeal, the state filed an amended notice of appeal that included the certification language and stated that the notice of appeal related back to the original notice of appeal; and the state's intent to appeal the exclusion of the two critical witnesses could be fairly inferred from the record and defendant was not prejudiced by the state's failure to attach a copy of the certification to the notice of appeal, the court of appeals erred in dismissing the interlocutory appeal for lack of jurisdiction. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Certification language is mandatory. — Filing a timely appeal and the inclusion of the certification that the appeal is not taken for purposes of delay and that the evidence that has been suppressed is a substantial proof of a fact material in the proceeding in the state's notice of appeal are mandatory preconditions to the exercise of the court of appeals' jurisdiction to hear the state's appeal and the court of appeals will not exercise its discretion to hear the state's appeal when the certification is lacking, absent a showing of exceptional circumstances. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Where the district court excluded the testimony of the alleged victim and the victim's parent in a case of sexual contact of a minor, kidnapping and bribery of a witness; the state filed a timely notice of appeal, but failed to certify that the appeal was not taken for purposes of delay and that the excluded evidence was substantial proof of a material fact in the case; the state filed an amended notice of appeal almost one year later which included the required certification; the state never requested leave to amend the notice of appeal or an extension of the filing deadline; and the state explained the failure to include the certification in the notice of appeal as an inadvertent omission, the court of appeals did not have jurisdiction to hear the appeal because the state failed to show exceptional circumstances to justify its failure to file a notice of appeal that complied with the mandatory statutory requirements and the amended notice of appeal did not relate back to the filing of the original notice of appeal. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Appeals by state. — Although the state may appeal an order granting a new trial in a criminal case, an immediate appeal is limited to an order in which it is claimed: (1) the grant of a new trial was based on an erroneous conclusion; (2) prejudicial legal error occurred during the trial; or, (3) newly-discovered evidence warrants a new trial. Thus, an immediate appeal by the state of an order granting a new criminal trial is limited to issues of law. State v. Griffin, 1994-NMSC-061, 117 N.M. 745, 877 P.2d 551. The state may appeal any order dismissing one or more counts of a complaint, indictment, or information, regardless of whether the dismissal is with prejudice. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269. The state has the right to appeal a ruling excluding the state's witness where the ruling was based on an interpretation of the contributing to the delinquency of a minor statute that controls the course of the presentation of material evidence in the case. State v. Romero, 2000-NMCA-029, 128 N.M. 806, 999 P.2d 1038. State's right to appeal. — Where the district court dismissed the state's case without prejudice after a finding that the state was not ready to proceed to trial after substitute counsel indicated that the state would be ready to proceed, the order of dismissal was appealable pursuant to this section regardless of whether the dismissal was without prejudice, because the legislature intended to permit the state to appeal any order dismissing one or more counts of a complaint, indictment, or information, regardless of whether the dismissal is without prejudice. State v. Lucero, 2017-NMCA-079, cert. denied. "Substantial proof of a fact material in the proceeding" construed. — The state may appeal pursuant to Subsection B of this section when the excluded evidence is important or significant, as opposed to evidence of minor consequence. State v. Adams, 2019-NMCA-043, cert. granted.State had the right to appeal the exclusion of important or significant evidence. — Where defendant was arrested for DWI, and where the district court excluded the results of defendant's blood test on the basis that the emergency medical technician who drew defendant's blood was not authorized to do so under the Implied Consent Act, 66-8-105 to 66-8-112 NMSA 1978, the state had the right to appeal the exclusion of evidence because while the test results did not register any blood alcohol content, defendant's blood tested positive for marijuana-related metabolites, benzodiazepines, and synthetic opioids, and the test results were necessary to prove the amount of drugs remaining in defendant's system at the time of arrest in order to show that he was still impaired. Defendant's blood test results were "important or significant" under the circumstances of this case, and therefore constitute substantial proof of a fact material sufficient to allow an interlocutory appeal. State v. Adams, 2019-NMCA-043, cert. granted.Appeal after remand to magistrate. — District court's order remanding defendant's misdemeanor DWI trial to magistrate court was, in effect, a dismissal of the charges against defendant; thus, under the doctrine of practical finality, the appellate court had jurisdiction to review the state's appeal. State v. Ahasteen, 1998-NMCA-158, 126 N.M. 238, 968 P.2d 328, cert. denied, 126 N.M. 532, 972 P.2d 351. Rule restricting state's bases for appeal retracted. — Restrictive nature of Rule 71(b), N.M.R.P. Metro. Cts. (now Rule 7-703B), in providing only two bases for appeal by the state, unconstitutionality of statute and insufficiency of complaint, limits the state's substantive right to appeal provided by the New Mexico constitution and is therefore invalid and retracted. Smith v. Love, 1984-NMSC-061, 101 N.M. 355, 683 P.2d 37 (decided under prior law). Post-conviction proceedings must be invoked before habeas corpus may be sought. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861. Federal habeas review denied. — Because of the petitioner's default in not appealing his convictions and sentences directly in state court, federal habeas review of his claims is barred unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation; the petitioner would have to show that some objective factor external to the defense impeded his efforts to comply with the state's procedural rule. Lepiscopo v. Tansy, 38 F.3d 1128 (10th Cir. 1994), cert. denied, 514 U.S. 1025, 115 S. Ct. 1376, 131 L. Ed. 2d 230 (1995). Presumption of ineffective assistance of counsel. — The conclusive presumption of ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105 N.M. 231, 731 P.2d 374 applies to appeals from a de novo trial in district court following a conviction in magistrate or municipal court. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006. Where defendant was convicted of aggravated DWI by a jury in magistrate court; defendant timely appealed the conviction to district court and filed a demand for a jury trial; the district court denied defendant's request for a jury trial; at a bench trial, the district court found defendant guilty of DWI; and defendant filed an untimely notice of appeal with the district court, defense counsel was conclusively presumed to be ineffective. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006. Presumption of ineffective assistance of counsel applies to failure to file timely notice of appeal. — A criminal defendant, whose counsel files an untimely notice of appeal from the district court's on-record review of a metropolitan court decision, is entitled to a conclusive presumption of ineffective assistance of counsel. State v. Vigil, 2014-NMCA-096, cert. granted, 2014-NMCERT-009. Presumption of ineffective assistance of counsel for failure to timely file a notice of appeal still applies after four years of inaction. — The first and foremost reason that the passage of time alone does not prevent application of the presumption of ineffective assistance of counsel for failure to timely file a notice of appeal is based on the fundamental premise that the rights implicated by the presumption, the right to appeal and the right to effective assistance of counsel, protect a defendant's fundamental liberty interest in a fair trial. This interest is no less significant after the deadline for appeal than it was before the deadline, nor does it diminish over time, and therefore where defendant appealed from a stipulated corrected sentence that was entered four years after the original judgment and sentence, after which defendant filed neither an appeal nor an affidavit of waiver, the presumption of ineffective assistance of counsel for failure to file a timely notice of appeal still applied. State v. Dorais, 2016-NMCA-049, cert. denied. Untimely notice waived where counsel ineffective. — Where defendant's counsel filed a notice of appeal sixty-two days after the entry of an order revoking defendant's probation and failed to timely file a motion for an extension of time; the court of appeals determined that defendant had a right to counsel at the probation revocation hearing because defendant raised issues that required assistance of counsel, the filing of the notice of appeal was defendant's counsel's responsibility because it is only after the filing of the docketing statement that trial counsel's responsibility to the client ceases, defendant had a fundamental liberty interest at stake in the revocation of defendant' probation that entitled defendant to minimal due process, and defendant had a right to appeal the revocation which defendant had not waived, the court of appeals presumed that defendant's counsel's failure to timely file a notice of appeal was per se ineffective assistance of counsel and considered defendant's appeal as if timely filed. State v. Leon, 2013-NMCA-011, 292 P.3d 493, cert. granted, 2012-NMCERT-012. Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981). For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982). For article, "Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006). Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Appellate Review § 223 et seq. Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941, 149 A.L.R. 740. Lower court's consideration, on the merits, of unseasonable application for new trial, rehearing, or other reexamination, as affecting time in which to apply for appellate review, 148 A.L.R. 795. Failure, due to fraud, duress, or misrepresentation by adverse party, to file notice of appeal within prescribed time, 149 A.L.R. 1261. Construction of federal statute (28 USC § 2255), dealing with vacation, by direct attack, of sentence in criminal case on ground that it violated Constitution or laws, or exceeded jurisdiction, or is otherwise subject to collateral attack, 20 A.L.R.2d 976. Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482. Appealability of order arresting judgment in criminal case, 98 A.L.R.2d 737. When criminal case becomes moot so as to preclude review of or attack on conviction or sentence, 9 A.L.R.3d 462. Adequacy of defense counsel's representation of criminal client regarding appellate and postconviction remedies, 15 A.L.R.4th 582. Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination, 17 A.L.R.4th 867. 4 C.J.S. Appeal & Error § 264 et seq.