A. Appeals from the magistrate courts shall be tried de novo in the district court.

B. The district court docket fee in any criminal appeal is thirty-five dollars ($35.00), ten dollars ($10.00) of which shall be deposited in the court automation fund.

C. If the judgment of the magistrate court in a criminal action is affirmed or rendered against the appellant on appeal or if the appellant fails to appear at the time fixed for hearing in the district court, the district court shall enter judgment imposing the same, a greater or a lesser penalty as that imposed in the magistrate court in the action.

History: 1953 Comp., § 36-15-3, enacted by Laws 1975, ch. 242, § 10; 1981, ch. 271, § 1; 1987, ch. 123, § 2; 1996, ch. 41, § 6.

Repeals and reenactments. — Laws 1968, ch. 62, § 171, repealed former 36-15-3, 1953 Comp., relating to forfeiture of appearance bonds, summons, service and appeal, and Laws 1968, ch. 62, § 150, enacted a new 36-15-3, 1953 Comp., relating to appeals from magistrate to district courts. Laws 1975, ch. 242, § 10, repealed 36-15-3, 1953 Comp., relating to appeals from magistrate to district courts, and enacted a new section.

Cross references. — For the court automation fund, see 34-9-10 NMSA 1978.

For trial de novo on appeal to district court, see 39-3-1 NMSA 1978.

For appeal from magistrate to district court, see Rule 2-705 NMRA.

The 1996 amendment, effective May 15, 1996, substituted "thirty-five dollars ($35.00), ten dollars ($10.00) of which shall be deposited in the court automation fund" for "twenty-five dollars ($25.00)" at the end of Subsection B.

The 1987 amendment, effective June 19, 1987, substituted "twenty-five dollars ($25.00)" for "two dollars and fifty cents ($2.50)" in Subsection B.

Some of the annotations listed below were decided under former law.

District court required to impose sentence. — When a defendant is convicted in a trial de novo on appeal from magistrate court, the district court is required to impose a sentence prior to remanding the case to the magistrate court for enforcement of the district court's judgment. State v. Montoya, 2005-NMCA-005, 136 N.M. 674, 104 P.3d 540, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565.

Order of remand not final. — When the district court enters an order of remand to the magistrate court that does not resolve the issue of sentencing, the order is not final and appealable. State v. Montoya, 2005-NMCA-005, 136 N.M. 674, 104 P.3d 540, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565.

Jurisdiction of district court. — On appeals from a magistrate court, the district court becomes a court of limited jurisdiction for the purpose of the appeal and the trial de novo. State v. Lynch, 1971-NMCA-049, 82 N.M. 532, 484 P.2d 374.

Discussion of right to jury trial for petty offenses. — A defendant is entitled to a jury trial for multiple petty offenses arising out of the same act, transaction or occurrence only if he is actually threatened at the commencement of trial with an aggregate potential penalty of greater than six months imprisonment. Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983).

Case dismissed when no jurisdiction. — Where case was begun in justice court (now magistrate court) and appealed to district court, if justice (now magistrate) had no jurisdiction, there was nothing to try de novo, and the case, on proper motion, would be dismissed. Geren v. Lawson, 1919-NMSC-048, 25 N.M. 415, 184 P. 216.

If the magistrate court lacks jurisdiction, the district court suffers the same lack of jurisdiction. State v. Lynch, 1971-NMCA-049, 82 N.M. 532, 484 P.2d 374.

Dismissal since complaint defective. — The district court could not assume a more enlarged jurisdiction on appeal than was conferred on the justice (now magistrate). Where there was nothing in complaint for assault and battery to show in what county the offense took place, the cause would be dismissed. Territory v. Valencia, 1881-NMSC-008, 2 N.M. 108.

Trial to be de novo. — Where appellant interposed a plea to the jurisdiction of a justice of the peace (now magistrate), which was overruled, and he declined to plead further, and judgment was rendered against him, and on appeal to the district court appellant conceded the jurisdiction of the justice of the peace (now magistrate), but appellee's motion for affirmance for that reason was overruled, the latter ruling was proper because under the statute the case was triable de novo in the district court, upon the merits. Rogers v. Kemp Lumber Co., 1913-NMSC-079, 18 N.M. 300, 137 P. 586.

Effect where material allegations admitted. — Defendant actually had a trial de novo on appeal even though evidence was not introduced where the material allegations of complaint had been admitted. Butler Paper Co. v. Sydney, 1943-NMSC-047, 47 N.M. 463, 144 P.2d 170.

Effect on judgment below. — On appeal to district court, case was tried on its merits de novo; if plaintiff's statement in a cause of action was found defective in substance, contrary judgment below would be reversed. Crolot v. Maloy, 1882-NMSC-004, 2 N.M. 198.

Trial de novo mandatory. — Trial de novo on appeal from justice court (now magistrate court) was mandatory. Butler Paper Co. v. Sydney, 1943-NMSC-047, 47 N.M. 463, 144 P.2d 170.

Procedure on appeal. — If justice court (now magistrate court) had jurisdiction in first instance, then district court would proceed to try case de novo according to district court procedure, and would not follow that of the justice court (magistrate court). Pointer v. Lewis, 1919-NMSC-020, 25 N.M. 260, 181 P. 428.

Grant of summary judgment not error. — Where there was nothing to show the trial court failed to consider the matters he was required to consider by Rule 56(c) [now Rule 1-056C NMRA], N.M.R. Civ. P., grant of summary judgment regardless of magistrate's findings was not error. Southern Union Gas Co. v. Taylor, 1971-NMSC-067, 82 N.M. 670, 486 P.2d 606).

Accounts or setoffs filed. — Parties can file accounts or setoffs, as if the case had originated in the district court. Archibeque v. Miera, 1857-NMSC-003, 1 N.M. 160.

Malicious prosecution. — Where prosecuting witness appealed from judgment of justice (now magistrate) taxing him with costs, district court was required to try the question whether the prosecution was instituted maliciously, or without probable cause, under Laws 1907, ch. 61, § 3 (41-13-5, 1953 Comp., now repealed), de novo, and enter its own independent judgment. State v. Coats, 1913-NMSC-082, 18 N.M. 314, 137 P. 597.

Right to jury trial. — District courts were not bound by rules applicable in justice court (now magistrate court) and on a trial de novo no jury trial was necessary unless some other considerations required it. Reece v. Montano, 1943-NMSC-054, 48 N.M. 1, 144 P.2d 461.

After jury trial in magistrate court, defendant not entitled to jury in trial de novo in district court. State v. Haar, 1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350, cert. denied, 94 N.M. 674, 615 P.2d 991, and 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606 (1980).

District judge may not enhance sentence received in magistrate court. State v. Haar, 1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350, cert. denied, 94 N.M. 674, 615 P.2d 991, and 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Justices of the Peace § 84.

51 C.J.S. Justices of the Peace §§ 185 to 212, 272.