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.

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.

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.

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.