Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court. In all other cases, criminal and civil, the supreme court shall exercise appellate jurisdiction as may be provided by law; provided that an aggrieved party shall have an absolute right to one appeal. (As amended September 28, 1965.)

ANNOTATIONS

The 1965 amendment, which was proposed by S.J.R. No. 5, § 2 (Laws 1965) and adopted at a special election held on September 28, 1965, with a vote of 31,582 for and 18,477 against, amended this section to provide for a direct appeal to the supreme court in certain criminal cases and for other appeals to the supreme court as provided by law, and to guarantee an absolute right to one appeal. Prior to amendment, this section read: "The appellate jurisdiction of the supreme court shall be coextensive with the state, and shall extend to all final judgments and decisions of the district courts, and said court shall have such appellate jurisdiction of interlocutory orders and decisions of the district courts as may be conferred by law."

Cross references. — For supreme court's original jurisdiction, supervisory control and power to issue extraordinary writs, see N.M. Const., art. VI, § 3.

For appellate jurisdiction of supreme court, see 34-5-14 NMSA 1978.

For appeals from metropolitan court, see 34-8A-6 NMSA 1978.

For appeals from magistrate court, see 35-13-1 NMSA 1978.

For appeals from district court, see 39-3-2 to 39-3-7 NMSA 1978.

Comparable provisions. — Idaho Const., art. V, § 9.

Iowa Const., art. V, § 4.

Montana Const., art. VII, § 2.

Utah Const., art. VIII, § 3.

Wyoming Const., art. V, § 2.

No right of state to appeal. — Where there was sufficient evidence to support the state’s petition to revoke the defendant’s probation and the court considered the evidence in favor of revocation and recognized that it had jurisdiction to revoke the defendant’s probation, but exercised its discretionary authority to deny and dismiss the state’s petition, the disposition was not contrary to law and the state did not have a constitutional right to appeal the dismissal of the petition. 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.

Direct appeal of denial of motion to impose double jeopardy bar to retrial. — Where the trial court denied defendant’s motion to bar a retrial on the grounds that the prosecutor had committed misconduct in defendant’s initial trial, because hearsay statements as represented by the prosecutor to have been made by third parties were falsely stated, misleading and prejudicial to defendant’s rights, which invoked defendant's double jeopardy rights, defendant had a right to directly appeal the trial court’s order to the court of appeals. State v. McClaugherty, 2007-NMCA-041, 141 N.M. 468, 157 P.3d 33, aff'd, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234.

Right to appeal magistrate court's suppression order. — This section does not give the state the right to appeal a magistrate court's suppression order, because such an order is not a final judgment or order. State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040, aff'g 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627.

Provision does not apply to appeals from the metropolitan court. — Where defendant's bench trial on charges of driving under the influence and improper use of registration ended prematurely when the court declared a mistrial after the prosecutor revealed to the court the results of defendant's breath alcohol test prior to their admission into evidence, and where defendant subsequently filed a motion to dismiss, arguing that his right to be free from double jeopardy would be violated by a second trial because there was no manifest necessity for a mistrial and that mistrial was caused by prosecutorial misconduct, and where, following the denial of his motion to dismiss, defendant filed an application for interlocutory appeal to the New Mexico court of appeals, defendant's appeal was dismissed, because there is no constitutional authority that provides a defendant with the right to immediately appeal to the New Mexico court of appeals from metropolitan court orders denying motions to dismiss after mistrial. State v. Calderon, 2024-NMCA-005, cert. denied.

Appeal from final judgment exceptions. — State constitutional exceptions to the rule that an appeal may only be taken from a final judgment has been permitted where the court's order is practically final and where the state's interest is especially strong. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96 P.3d 1192.

Appeals from grant of jury trial in delinquency proceedings. — Trial court's grant of a jury trial to a child in delinquency proceedings was not reviewable because the state's interest was not compelling enough to justify an exception to the final judgment rule. In re Larry K., 1999-NMCA-078, 127 N.M. 461, 982 P.2d 1060.

Phrase "provided by law" generally means "provided by statutes". State v. Watson, 1971-NMCA-104, 82 N.M. 769, 487 P.2d 197.

"Aggrieved party" is one whose personal interests are adversely affected by an order of the court. State v. Castillo, 1980-NMCA-020, 94 N.M. 352, 610 P.2d 756, cert. quashed, 94 N.M. 675, 615 P.2d 992.

State's right to appeal independent of statutory authority. — Where the district court acts as a matter of law, the state's right to appeal stems from Article IV, Section 2 of the constitution of New Mexico and is independent of statutory authority. 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.

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 Article IV, Section 2 of the constitution of New Mexico and was independent of 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 made "aggrieved party" by criminal disposition contrary to law. — Since the state is a party to every criminal proceeding in the district courts, a claim of disposition contrary to law is a valid and legal grievance which indisputably makes the state "an aggrieved party". 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 constitution guarantees the state's right to appeal a disposition that is contrary to law if the state is aggrieved by that disposition. State v. Griego, 2004-NMCA-107, 136 N.M. 272, 96 P.3d 1192.

State made "aggrieved party" when fair jury verdict set aside. — When the jury reaches a verdict after a trial which is fair and free from error, and such a verdict is set aside, the state is "aggrieved" within the meaning of this section, and, thus, has authority to appeal an order granting a new trial. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232.

State made "aggrieved party" by ruling that sentencing statute is unconstitutional. — The state is an "aggrieved party" where the trial court refuses to enforce a state sentencing statute on the basis that it is unconstitutional, and the state has a constitutional right to an appeal. State v. Aguilar, 1981-NMSC-027, 95 N.M. 578, 624 P.2d 520.

State does not have absolute right to appeal in every situation in which it may feel "aggrieved" by a trial court's ruling. State v. Aguilar, 1981-NMSC-027, 95 N.M. 578, 624 P.2d 520.

When state can appeal order granting new criminal trial. — 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 that either: the grant of a new trial was based on an erroneous conclusion; or prejudicial legal error occurred during the trial; or, newly-discovered evidence warranted 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.

Right of appeal was not granted by section prior to amendment. Jordan v. Jordan, 1923-NMSC-075, 29 N.M. 95, 218 P. 1035; State v. Rosenwald Bros. Co., 1918-NMSC-009, 23 N.M. 578, 170 P. 42; State v. Chacon, 1914-NMSC-079, 19 N.M. 456, 145 P. 125, superseded by constitutional amendment, State v. Griffin, 1994-NMSC-061, 117 N.M. 745, 877 P.2d 551.

Appeals by state. — This section, as it read prior to 1965 amendment, did not give state right to appeal from judgment sustaining plea in abatement to an indictment. Ex parte Carrillo, 1916-NMSC-047, 22 N.M. 149, 158 P. 800.

Under this section as it read prior to 1965 amendment, state could not appeal from district court judgment sustaining demurrer to an information charging trespass on a school section. State v. Dallas, 1917-NMSC-006, 22 N.M. 392, 163 P. 252.

Appeals from suppression orders. — 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 set forth in 39-3-3B(2) NMSA 1978 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.

Right to appeal criminal contempt conviction. — Under this section, as amended, the supreme court can no longer deny to an aggrieved party the right to an appeal; despite former supreme court rule denying appeal to one convicted of criminal contempt committed in the presence of the court, defendant had right to appeal such a conviction. State v. Watson, 1971-NMCA-104, 82 N.M. 769, 487 P.2d 197.

Right to appeal denial of motion implicating constitutional rights. — Under this section, the defendant had the right to appeal from an order denying a motion to dismiss a charge on the ground that trial of the charge would subject the defendant to double jeopardy. State v. Apodaca, 1997-NMCA-051, 123 N.M. 372, 940 P.2d 478.

Supreme court’s exclusive jurisdiction. — 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.

Jurisdiction of an appeal of a lifetime criminal commitment lies with the supreme court. — Where defendant was charged with an open count of murder, and where the district court found by clear and convincing evidence that defendant committed first-degree murder, determined that defendant was dangerous and not competent to stand trial, and ordered that defendant be detained for life by the New Mexico department of health pursuant to 31-9-1.5(D) NMSA 1978, jurisdiction of defendant's appeal properly lied in the New Mexico supreme court, because commitment pursuant to 31-9-1.5 NMSA 1978 results in a loss of liberty, and the deprivation of liberty resulting from a lifetime criminal commitment is equivalent to the deprivation of liberty under a lifetime criminal sentence, and this section confers jurisdiction on the New Mexico supreme court for cases imposing a sentence of life imprisonment. State v. Baca, 2019-NMSC-014.

No direct appeal where indictment procedure challenged. — The right conferred by N.M. Const., art. II, § 14 is satisfied by an indictment valid on its face and returned by a legally constituted grand jury. Once such an indictment is returned, there exists no right for immediate review pursuant to a writ of error or pursuant to this section. State v. Augustin M., 2003-NMCA-065, 133 N.M. 636, 68 P.3d 182, cert. quashed, 2004-NMCERT-002, 135 N.M. 170, 86 P.3d 48.

Right to appeal sentence. — Upon conviction defendant, who pleaded guilty, had an undoubted right to appeal his sentence. Rodriguez v. District Court, 1971-NMSC-101, 83 N.M. 200, 490 P.2d 458.

Right to appeal involuntary commitment. — A person involuntarily committed to a mental hospital under 43-1-11 NMSA 1978 has a right to appeal under this section even though no appeal is provided for by statute. State v. Pernell, 1979-NMCA-008, 92 N.M. 490, 590 P.2d 638.

New trial mandated where appeal on record impossible. — Where defendant, convicted of larceny, gave timely notice of appeal, but due to unexplained technical difficulties, court reporter was unable to prepare a transcript of proceedings in the cause, and it was impossible to reconstruct a record of the proceedings because of trial counsel's inability to recall events at trial, defendant would be granted a new trial; to deny him a new trial would be to deny him his constitutional right of appeal. State v. Moore, 1975-NMCA-042, 87 N.M. 412, 534 P.2d 1124.

Supreme court determines death sentence proportionality. — The determination of death sentence proportionality is a matter to be addressed by the supreme court on appeal and is, by implication, within the supreme court's exclusive constitutional jurisdiction over death sentence appeals. Determinations of this type require review of the facts in the trial record pertaining to the crime, including evidence of aggravation and mitigation which is not fully developed until after conviction. State v. Wyrostek, 1994-NMSC-042, 117 N.M. 514, 873 P.2d 260.

Discharge of prisoner not accorded right to appeal. — Where judgment and order was entered in habeas corpus proceeding on June 15, 1971, requiring petitioner's unconditional release unless prior to June 30, he was allowed his right to appeal his conviction based upon a timely motion for appeal filed pro se the previous November, and due to the state's neglect the requisite order of the district court permitting an appeal came too late, being entered on June 30 itself and furthermore, the state did not attempt by motion to seek relief from the June 15 order until September 27, 1971, petitioner would be released; writ of prohibition seeking to prohibit his discharge was not available to the state. Rodriguez v. District Court, 1971-NMSC-101, 83 N.M. 200, 490 P.2d 458.

Dismissal for rule violations not abridgement of right to appeal. — The right of appeal is provided for in the constitution while the means for exercising that right are properly controlled by rules of procedure, and the defendant's constitutional right to appeal was not abridged by the dismissal for failure to follow procedural rules. Olguin v. State, 1977-NMSC-034, 90 N.M. 303, 563 P.2d 97.

Time for appeal. — The amendment to this section did not alter the effect of the court rule fixing the time in which the guaranteed right to appeal should be exercised; that the appeal should be within a reasonable time, fixed at 30 days, is a procedural requirement and not in any sense a deprivation of a guaranteed right. State v. Garlick, 1969-NMSC-068, 80 N.M. 352, 456 P.2d 185.

Dismissal of appeal because of actions of defendant. — If a defendant's former fugitive status has significantly interfered with the operation of the appellate process, dismissal of the defendant's appeal is appropriate. Here, because the defendant's fugitive status caused the administrative purging of the record of his trial nine years after the trial, thus preventing the orderly disposition of his case, his appeal is dismissed. State v. Brown, 1993-NMCA-120, 116 N.M. 705, 866 P.2d 1172, cert. denied, 116 N.M. 553, 865 P.2d 1197.

Appeal right not forfeited by escape. — A person convicted of a crime does not forfeit his right to appeal simply because he has escaped from confinement. He still has a right to have his conviction reversed if he was erroneously convicted or if his constitutional rights were violated. Mascarenas v. State, 1980-NMSC-074, 94 N.M. 506, 612 P.2d 1317.

Appeals from conditional pleas. — A conditional plea agreement is a proper procedure to enable a defendant to reserve a significant pretrial issue for appeal in a case in which conviction seems certain unless the defendant prevails on the pretrial issue. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1, rev'g 1993-NMCA-064, 116 N.M. 491, 864 P.2d 307.

Section does not require written opinion; court of appeals' memorandum opinion, authorized by Rule 601(b)(1), N.M.R. App. P. (Crim.) (now Rule 12-405 B(1) NMRA), did not deprive defendant of right to appeal. Hudson v. State, 1976-NMSC-084, 89 N.M. 759, 557 P.2d 1108, cert. denied, 431 U.S. 924, 97 S. Ct. 2198, 53 L. Ed. 2d 238 (1977).

Authority to remand for new sentence. — Appellate courts have the authority to remand a case for entry of judgment on the lesser included offense and resentencing rather than retrial when the evidence does not support the offense for which the defendant was convicted but does support a lesser included offense. The rationale for this holding is that there is no need to retry a defendant for a lesser included offense when the elements of a lesser offense necessarily were proven to a jury beyond a reasonable doubt in the course of convicting the defendant of the greater offense. State v. Haynie, 1994-NMSC-001, 116 N.M. 746, 867 P.2d 416.

Certiorari to court of appeals in criminal case. — The supreme court has the 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. State v. Gunzelman, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55, rev'g 1972-NMCA-166, 84 N.M. 451, 504 P.2d 1084, overruled on other grounds by State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.

Refusal to hear issues denies appeal right. — For the supreme court to refuse on appeal to hear the issues which it once declined to review by writ of certiorari would be to effectively deny the defendant his right to appeal his conviction to that court. State v. Luna, 1980-NMSC-009, 93 N.M. 773, 606 P.2d 183.

Inordinate delay in the appellate proceedings implicates due process. — Due process protects a criminal defendant against inordinate delay in direct appeal proceedings. To determine whether a criminal defendant's due process rights have been violated by appellate delay, an appellate court looks to the due process principles of prejudice and fundamental fairness, with the predominant concern being prejudice. State v. Garcia, 2019-NMCA-056, cert. denied.

Defendant was not prejudiced by delay in appeal process. — Where defendant was convicted of child abuse, kidnapping, contributing to the delinquency of a minor, battery against a household member, two counts of bribery of a witness, and four counts of conspiracy, and where defense counsel failed to file a brief-in-chief in defendant's appeal, which resulted in a dismissal and eventual reinstatement of his appeal and a nine-year and four-month delay, defendant's constitutional right to due process was not violated where defendant made no claim that his ability to assert arguments on appeal has in any way been prejudiced and made no argument pertaining to his ability to defend himself on retrial; defendant did not suffer prejudice from the delay of his appeal. State v. Garcia, 2019-NMCA-056, cert. denied.

Section applies to review of original jurisdiction cases. — Section 39-3-1.1E NMSA 1978, vesting the court of appeals with discretionary review authority of appeals to district court, does not violate this provision because Article 6, Section 2 applies only to appeals of original jurisdiction cases from district court and not to review of the district court acting in an appellate capacity. VanderVossen v. City of Espanola, 2001-NMCA-016, 130 N.M. 287, 24 P.3d 319, cert. quashed, 131 N.M. 221, 34 P.3d 610.

Juvenile courts. — In face of this article legislature could not provide for direct appeal to supreme court from courts inferior to district court, including, at that time, juvenile courts (case decided under this section as it read prior to 1965 amendment). State v. Eychaner, 1937-NMSC-082, 41 N.M. 677, 73 P.2d 805.

Habeas corpus. — Laws 1937, ch. 197 (39-3-7 NMSA 1978), authorizing appeals in special proceedings, does not authorize an appeal in habeas corpus proceedings from district court order remanding relator to custody of sheriff, since habeas corpus is not a special statutory proceeding. In re Forest, 1941-NMSC-019, 45 N.M. 204, 113 P.2d 582.

Conservancy districts. — Laws 1923, ch. 140, § 903 (since repealed), relating to conservancy districts, did not deprive an appellant of the privilege of appeal, for Subdivision 2 thereof provided for appeals from all orders and decrees of the district court. In re Proposed Middle Rio Grande Conservancy Dist., 1925-NMSC-058, 31 N.M. 188, 242 P. 683.

Court's review limited. — The supreme court's review of the evidence is only for the purpose of determining whether there was substantial evidence to support the trier of the facts. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

No power in supreme court to review de novo. — The constitution gives the supreme court appellate jurisdiction and also original jurisdiction and superintending control, but these powers do not include the power to review de novo the factual basis for the orders or judgments of district courts. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

While the legislature has the power to determine in what district court cases, civil and criminal, the supreme court shall exercise appellate jurisdiction (except where a sentence of death or life imprisonment has been imposed, in which cases appellate jurisdiction is directly conferred on the court), the legislature has no power to substitute a de novo hearing for an appeal from a judgment or order of the district court, and has no power to fix the time within which an appeal must be heard by the supreme court. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

Summary calendar system of appeal constitutional. — There was no factual or legal basis for defendant's allegation of a due process violation due to New Mexico's summary calendar system of appeal, since assignment of a case to the summary calendar, which strictly limits the length of and time for submissions to the appellate court, does not violate due process as long as the defendant is able to properly present issues raised on appeal. State v. Ibarra, 1993-NMCA-040, 116 N.M. 486, 864 P.2d 302, cert. quashed, 117 N.M. 744, 877 P.2d 44 (1994), cert. denied, 513 U.S. 1157, 115 S. Ct. 1116, 130 L. Ed. 2d 1080 (1995).

Defendant was not prejudiced by the trial court's limitation of the record, in light of the evidence and stipulations of the parties. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545.

Section 29-9-8B NMSA 1978 partially unconstitutional. — The last sentence in 29-9-8B NMSA 1978, allowing the discovery of the records of the governor's organized crime prevention commission only by supreme court order, is unconstitutional, as the legislature lacks the power to prescribe and regulate practice, pleading and procedure. In re Motion for a Subpoena Duces Tecum, 1980-NMSC-010, 94 N.M. 1, 606 P.2d 539.

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Civil Procedure," see 11 N.M. L. Rev. 53 (1981).

For annual survey of New Mexico law relating to criminal procedure, see 12 N.M. L. Rev. 271 (1982).

For article, "New Mexico's Summary Calendar for Disposition of Criminal Appeals: An Invitation for Inefficiency, Ineffectiveness and Injustice," see 24 N.M. L. Rev. 27 (1994).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 Am. Jur. 2d Courts § 54 et seq.

New trial, grant of, by appellate court because of inability to perfect record for appeal, 13 A.L.R. 107, 16 A.L.R. 1158, 107 A.L.R. 603.

Superintending control over inferior tribunals, 112 A.L.R. 1351.

Issue of certiorari in exercise of power of superintending control, 112 A.L.R. 1370.

Issue of mandamus in exercise of power of superintending control, 112 A.L.R. 1371.

Appellate court's discretion to refuse exercise of its original jurisdiction to issue writs of mandamus, 165 A.L.R. 1431.

Power to confer original jurisdiction on courts to revoke or suspend public license, 168 A.L.R. 826.

21 C.J.S. Courts § 12 et seq.