2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 15 - Public Defenders › Section 31-15-12 - Explanation of rights; waiver of counsel; application fee; indigency determination.

A. If any person charged with any crime or a delinquent act that carries a possible sentence of imprisonment appears in any court without counsel, the judge shall inform the person of the person's right:
(1) to confer with the district public defender; and
(2) if the person is financially unable to obtain counsel, to be represented by the district public defender at all stages of the proceedings against the person.
B. Following notification of any person under Subsection A of this section, the judge shall notify the district public defender and continue the proceedings until the person has applied with the district public defender.
C. A person shall pay a nonrefundable application fee of ten dollars ($10.00) at the time the person applies with the public defender for representation. The fee shall be deposited in the public defender automation fund. The public defender shall determine if the person is indigent and unable to pay the fee, subject to review by the court. When the person remains in custody and is unable to pay the fee, the court may waive payment of the fee. A child subject to the provisions of the Delinquency Act [Chapter 32A, Article 2 NMSA 1978] shall not be required to pay the application fee.
D. Peace officers shall notify the district public defender of any person not represented by counsel who is being forcibly detained and who is charged with, or under suspicion of, the commission of any crime that carries a possible sentence of imprisonment, unless the person has previously appeared in court upon that charge.
E. Any person entitled to representation by the district public defender may intelligently waive the right to representation. The waiver may be for all or any part of the proceedings. The waiver shall be in writing and countersigned by a district public defender.
History:
1953 Comp., § 41-22A-12, enacted by Laws 1973, ch. 156, § 12; 1993, ch. 79, § 1; 2021, ch. 15, § 2.
ANNOTATIONS
Cross references.
— For explanation of rights, opportunity to call attorney,
see
Rule 6-501A NMRA.
The 2021 amendment,
effective June 18, 2021, eliminated, for children subject to the provisions of the Delinquency Act, the application fee for applying for representation with the public defender, and made technical, nonsubstantive changes; and in Subsection C, after "the court may waive payment of the fee", added "A child subject to the provisions of the Delinquency Act shall not be required to pay the application fee."
The 1993 amendment,
effective July 1, 1993, inserted "application fee; indigency determination" in the catchline; inserted "or a delinquent act" in the introductory paragraph of Subsection A; substituted "applied" for "conferred" near the end of Subsection B; added present Subsection C; redesignated former Subsections C and D as present Subsections D and E; and substituted "shall" for "must" in the second sentence of Subsection D.
Import of Subsection B.
— Inasmuch as the benefits of the Public Defender Act accrue only to those who are "financially unable to obtain counsel" and who are charged with certain crimes, obviously a determination of indigency is required. Inquiry into this feature is accomplished by the court, and the public defender is assigned to the case where indigency appears.
State v. Rascon
, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266.
Defendant must make showing of indigence.
— Although trial court failed to advise pro se defendant of his rights under the public defender laws, such failure was harmless error where defendant made no showing of indigence, but instead chose to represent himself, even after trial judge notified him of his constitutional right to counsel.
Attorney General v. Montoya
, 1998-NMCA-149, 126 N.M. 273, 968 P.2d 784, cert. denied, 126 N.M. 532, 972 P.2d 351.
Purpose of Subsection D.
— Subsection D does not expand upon or extend the constitutional rights of a person forcibly detained, under the constitutions of the United States or New Mexico. Rather, its prime purpose is to protect and implement the right of persons detained to be brought before a court without unnecessary delay.
State v. Rascon
, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266.
Public defender to make inquiries about forcibly detained persons.
— Subsection D is intended to advise the public defender of the names and whereabouts of persons who are being forcibly detained so that if they are not brought before a court for an initial appearance without unnecessary delay, the public defender may make inquiries, with demands upon the state to bring forth the prisoner if appropriate and with application to a court if necessary.
State v. Rascon
, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266.
Failure of police to comply with Subsection D
did not infringe upon defendant's rights against self-incrimination where defendant was advised of those rights both at time of arrest and booking, voluntarily acknowledged that he understood them and signed waiver of rights form.
State v. Rascon
, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266.
Counsel need not be notified before defendant questioned about unrelated offense.
— Where an accused has been charged with one offense and is represented by counsel with respect to that offense, police need not notify that counsel before questioning defendant about another unrelated offense.
State v. Seward
, 1986-NMCA-062, 104 N.M. 548, 724 P.2d 756, cert. denied, 104 N.M. 522, 724 P.2d 231.
Lack of a countersignature on defendant's waiver of counsel form
does not of itself make that waiver invalid for the purpose of enhancing later convictions.
State v. Pino
, 1997-NMCA-001, 122 N.M. 789, 932 P.2d 13, cert. denied, 122 N.M. 589, 929 P.2d 981.
No waiver where defendant was unaware of possibility of jail.
— There was no voluntary, knowing, and intelligent waiver of counsel where the defendant, who pled guilty, was not advised, and was not aware, of the possibility of jail when he waived his right to an attorney.
Smith v. Maldonado
, 1985-NMSC-115, 103 N.M. 570, 711 P.2d 15.
Lack of countersignature not considered on appeal.
— The fact that defendant's waiver form was not countersigned by a district public defender as required by Subsection E was not raised below nor briefed and supported by authority on appeal, and would not be considered by the appellate court.
State v. Ramirez
, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43,
overruled on other grounds by
City of Albuquerque v. Haywood
, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93, cert. denied, 124 N.M. 589, 953 P.2d 1087.
Law reviews.
— For article, "Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceedings," see 14 N.M.L. Rev. 275 (1984).