2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 1 - General Provisions › Section 30-1-9 - Tolling of time limitation for prosecution for crimes.

A. If after any crime has been committed the defendant shall conceal himself, or shall flee from or go out of the state, the prosecution for such crime may be commenced within the time prescribed in Section 1-8 [30-1-8 NMSA 1978], after the defendant ceases to conceal himself or returns to the state. No period shall be included in the time of limitation when the party charged with any crime is not usually and publicly a resident within the state.
B. When
(1) an indictment, information or complaint is lost, mislaid or destroyed;
(2) the judgment is arrested;
(3) the indictment, information or complaint is quashed, for any defect or reason; or
(4) the prosecution is dismissed because of variance between the allegations of the indictment, information or complaint and the evidence; and a new indictment, information or complaint is thereafter presented, the time elapsing between the preferring of the first indictment, information or complaint and the subsequent indictment, information or complaint shall not be included in computing the period limited for the prosecution of the crime last charged; provided that the crime last charged is based upon and grows out of the same transaction upon which the original indictment, information or complaint was founded, and the subsequent indictment, information or complaint is brought within five years from the date of the alleged commission of the original crime.
History:
1953 Comp., § 40A-1-9, enacted by Laws 1963, ch. 303, § 1-9.
ANNOTATIONS
Cross references.
— For defects, errors and omissions in a complaint, indictment or information, and variances between the allegations therein and the evidence,
see
Rule 5-204 NMRA.
This section is a tolling statute, not a statute of limitations,
and does not independently limit the period within which prosecution must commence.
State v. Hill
, 2008-NMCA-117, 144 N.M. 775, 192 P.3d 770, cert. quashed, 2009-NMCERT-009, 147 N.M. 423, 224 P.3d 650.
Constitutionality.
— The application of the tolling provision did not violate either defendant's right to travel or his constitutional guarantee of equal protection of the laws.
State v. Cawley
, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574.
Statute not exclusive.
— Although this section does show a legislative intent that the limitation period is not to be utilized to bar a prosecution delayed by procedural problems, it does not evince an intent to bar prosecutions not beset with procedural problems.
State v. Martinez
, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.
Indictment timely because complaint had tolled statute.
— An indictment filed prior to dismissal of a complaint but more than three years after the commission of a third degree felony is timely because the limitation period was tolled by the filing of the complaint within the three-year period.
State v. Martinez
, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.
Period between dismissed complaint and refiled charges was not tolled.
— Where defendant was charged in Santa Fe county with embezzlement and computer access with intent to defraud or embezzle on June 28, 2018, and where defendant filed an objection to the venue on November 29, 2018, and where the district court granted defendant's motion to dismiss both counts with prejudice for improper venue, and where, almost two months later, on August 1, 2019, a grand jury indicted defendant on the same charges in Sandoval county for conduct that occurred between December 19, 2011 and January 22, 2013, and where defendant moved to dismiss both charges, claiming that the statute of limitations had expired, the district court erred in denying defendant's motion to dismiss, because this section did not exclude the period between the timely filed but dismissed complaint and the refiled charges or toll any time from the six-year statutory limitation period, and no nonstatutory tolling otherwise extended the time for the state to pursue charges in the present case.
State v. Padilla
, 2023-NMCA-047, cert. denied.
Evidence of absence from state insufficient.
— Where there was no evidence tending to show defendant's whereabouts from the time of his escape from prison on September 17, 1956 until his apprehension in Oklahoma on January 24, 1960, defendant's plea of not guilty put the statute of limitations in issue, and his motion for a directed verdict on the grounds that the three-year statute of limitations was a bar to prosecution should have been granted.
State v. Oliver
, 1963-NMSC-015, 71 N.M. 317, 378 P.2d 135.
Evidence negating residence insufficient.
— There being no substantial evidence in record that defendant was not usually and publicly a resident of state, after commission of crime for sufficient time to toll statute of limitations, he was entitled to instructed verdict in his favor.
State v. Mersfelder
, 1927-NMSC-049, 34 N.M. 465, 284 P. 113.
"Concealing oneself" construed.
— The plain language of 30-1-9(A) NMSA 1978 suggests that a court will look to the actions of an offender after the crime was committed, and will necessarily undertake a fact-specific analysis of whether the offender's actions constituted an affirmative attempt to conceal his or her identity, and therefore, absent any evidence that the offender took affirmative steps to hide his or her identity, it is unlikely that the offender could be considered to have "concealed" himself or herself. Where a victim has submitted to a sexual assault evidence kit, the victim does not know the offender, and the offender has not been identified and the sexual assault evidence kit DNA has not been matched to an individual suspect, and therefore it is unlikely that a court would consider the offender to be concealing himself, because under these circumstances, there is no evidence that the offender took affirmative steps to hide his or her identity.
Retroactive Application of Criminal Statute
(4/27/17), Att'y Gen. Adv. Ltr. 2017-04.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 21 Am. Jur. 2d Criminal Law §§ 227, 228, 231, 233.
Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.
Imprisonment as tolling the statute of limitations, 76 A.L.R.3d 743.
Finding or return of indictment, or filing of information, as tolling limitation period, 18 A.L.R.4th 1202.
Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations, 71 A.L.R.4th 554.
22 C.J.S. Criminal Law §§ 202 to 204.