N.M. R. Crim. P. Dist. Ct. 5-509

As amended through August 23, 2024

Rule 5-509 - Habitual criminal proceedings; notice of attack on prior sentence

A.Notice. If the defense in an habitual criminal sentencing proceeding intends to attack the validity of any prior conviction, unless a shorter period of time is ordered by the court, no later than ten (10) days before the habitual criminal sentencing proceeding, the defendant shall provide the state with a written notice of such intention. The defendant's notice of intent to attack a prior conviction shall contain specific information as to each conviction the defendant intends to attack as invalid and the names and addresses of the witnesses by whom the defendant proposes to establish such defense. Not less than five (5) days after receipt of defendant's witness list or at such other time as the district court may direct, the district attorney shall serve upon the defendant the names and addresses, as particularly as known to the district attorney, of the witnesses the state proposes to offer in rebuttal to discredit the defendant's claim that the prior conviction was invalid.

B.Continuing duty to give notice. Both the defendant and the district attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this rule.

C.Failure to give notice. If a defendant fails to serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of proving a prior conviction was invalid, except the testimony of the defendant himself. If such notice is given by a defendant, the district court may exclude the testimony of any witness offered by the defendant for the purpose of proving the invalidity of a prior conviction if the name and address of such witness was known to defendant or his attorney but was not stated in such notice. If the district attorney fails to file a list of witnesses and serve a copy thereof on the defendant as provided in this rule, the court may exclude evidence offered by the state to contradict the defendant's evidence. If such notice is given by the district attorney, the court may exclude the testimony of any witnesses offered by the district attorney for the purpose of contradicting the defendant's claim that a prior conviction was invalid if the name and address of such witness is known to the district attorney but was not stated in such notice. For good cause shown the court may waive the requirements of this rule.

N.M. R. Crim. P. Dist. Ct. 5-509

As adopted, effective August 1, 1989.

ANNOTATIONS Failure to give notice that a conviction will be contested. - Even if the defendant fails to provide the state with notice that the validity of a prior conviction will be contested, the state has the initial burden of showing that the defendant is, in fact, the same person as the person named in the prior conviction. State v. Clements, 2009-NMCA-085, 146 N.M. 745, 215 P.3d 54.