A. Magistrates have jurisdiction in all cases of misdemeanors and petty misdemeanors, including offenses and complaints under ordinances of a county. Magistrates also have jurisdiction in any other criminal action where jurisdiction is specifically granted by law, and they may hold preliminary examinations in any criminal action where authorized by law.

B. Magistrates have jurisdiction over all offenses and complaints under ordinances of a municipality and may issue subpoenas and warrants and punish for contempt if that municipality has adopted an effective ordinance to provide for magistrate jurisdiction over municipal ordinances pursuant to the provisions of Subsection B of Section 35-14-1 NMSA 1978.

C. In any criminal action in the magistrate court which is beyond the jurisdiction of the magistrate court, the magistrate may commit to jail, discharge or recognize the defendant to appear before the district court as provided by law. Whenever the defendant is bound over to the district court, the magistrate shall forthwith deliver to the clerk of the district court a transcript of all proceedings in the magistrate court in the action.

History: 1953 Comp., § 36-3-4, enacted by Laws 1968, ch. 62, § 49; 1973, ch. 206, § 2; 1984, ch. 30, § 2; 1985, ch. 59, § 1; 1985, ch. 147, § 1.

Repeals. — Laws 1968, ch. 62, § 171, repealed former 36-3-4, 1953 Comp., relating to grounds for change of venue, effective January 1, 1969.

Cross references. — For sheriff's fees, see 4-41-16 NMSA 1978.

For jurisdiction for assault and battery upon revenue bureau employees, see 7-1-75 NMSA 1978.

For jurisdiction under fish and game laws, see 17-2-9 NMSA 1978.

For duties of enforcement officials in gambling prosecutions, see 30-19-2 NMSA 1978.

For transfer to district court because of insanity defense, see 31-9-1 NMSA 1978.

Delay in enforcing sentence. — Where the court delayed enforcing defendant's sentence for thirteen months due to a mistake as to whether defendant was serving the sentence during and after an appeal, the court did not lose jurisdiction to enforce the sentence. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836.

Jurisdiction in felony cases. — The dismissal of a felony charge by a magistrate does not result in an acquittal because the magistrate court has no jurisdiction to try felony charges. Consequently, a subsequent indictment is not barred even if the magistrate determines in a preliminary hearing that there is no probable cause to bind over for trial in the district court. Moreover, since the magistrate court has no such jurisdiction, no double jeopardy problem can arise. State v. Peavler, 1975-NMSC-035, 88 N.M. 125, 537 P.2d 1387.

A magistrate court does not have jurisdiction to try felony charges on the merits, but does have jurisdiction to hold preliminary hearings in any criminal action as authorized by law. McCormick v. Francoeur, 1983-NMSC-077, 100 N.M. 560, 673 P.2d 1293; State v. De La O, 1985-NMCA-023, 102 N.M. 638, 698 P.2d 911.

Jurisdiction over aggravated battery. — Magistrate courts have no trial jurisdiction over aggravated battery, which is a third-degree felony, but do have authority to conduct preliminary examinations upon charges therefor. State ex rel. Moreno v. Floyd, 1973-NMSC-117, 85 N.M. 699, 516 P.2d 670.

Jurisdiction under 66-8-102 NMSA 1978. — Section 66-8-102 NMSA 1978 is a valid, specific grant of concurrent jurisdiction to magistrates in cases involving driving while under the influence of intoxicating liquor or of drugs, when the same is a first offense. State v. Rue, 1963-NMSC-090, 72 N.M. 212, 382 P.2d 697.

No jurisdiction over misdemeanor charges tried with related felony. — Because the district court has original jurisdiction over all felony charges, when misdemeanor charges brought in a magistrate's court are linked to a felony charge arising out of the same transaction, the trial should be in the district court. State v. Muise, 1985-NMCA-090, 103 N.M. 382, 707 P.2d 1192, overruled on other grounds by State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896.

No jurisdiction as to municipal ordinances. — Magistrate courts are part of the judicial department of the state and their criminal jurisdiction does not specifically refer to municipal ordinances. State v. Biswell, 1971-NMCA-111, 83 N.M. 65, 488 P.2d 115, cert. denied, 83 N.M. 57, 488 P.2d 107.

No right to refuse second complaint after finding of no probable cause on first. — A magistrate, who has previously heard evidence under an original criminal complaint and has found no probable cause, does not have a discretionary right to refuse the filing of a second complaint. State v. De La O, 1985-NMCA-023, 102 N.M. 638, 698 P.2d 911.

Former Rule 17(b) [new 6-506B NMRA], N.M.R. Crim. P. (Magis. Cts.) did not conflict with this section, by extending the dispositive powers of magistrates to cover felony charges. State v. Mann, 1980-NMSC-043, 94 N.M. 276, 609 P.2d 723 (decided under prior law).

Consent or waiver of jurisdiction not possible. — Where magistrate court is without subject-matter jurisdiction, there is no possibility of waiver or consent to jurisdiction. State v. Lynch, 1971-NMCA-049, 82 N.M. 532, 484 P.2d 374.

Consideration of jurisdiction not precluded on appeal. — The failure of defendant to file an answer or plea in the justice of the peace court (now magistrate) or the district court does not preclude consideration on appeal where the issue raised by defendant questions the sufficiency of the proof to establish a cause of action under the complaint. Henderson v. Gibbany, 1966-NMSC-172, 76 N.M. 674, 417 P.2d 807 (decided under former law).

Jurisdiction over violations of municipal ordinances. — A municipal court does not have exclusive jurisdiction where driving while intoxicated or acts of domestic violence are alleged to have occurred within the city limits and to violate both state laws and municipal ordinances and a municipal peace officer may refer criminal charges to any prosecutor at any level for evaluation and prosecution in municipal, magistrate, or district court. Nothing in the law binds an officer to file charges in municipal court where the charges stem from activities that allegedly violate a municipal ordinance and a state law or a county ordinance. 2008 Op. Att'y Gen. No. 08-06.

Magistrate can compel restitution. — The magistrate may, as part of its sentencing power, order a Criminal Code or Motor Vehicle Code violator to make restitution. 1979 Op. Att'y Gen. No. 79-18.

Jurisdiction over juveniles. — Magistrate courts have no jurisdiction over juveniles under 18 years of age. 1969 Op. Att'y Gen. No. 69-91.

Jurisdiction on Sunday. — Judicial proceedings other than purely formal acts are void if performed on Sunday. Thus, misdemeanor cases cannot be tried, nor fines imposed, on Sunday. 1961 Op. Att'y Gen. No. 61-05 (opinion rendered under former law).

Jurisdiction over sentence modification. — Since a magistrate has no power to grant a new trial, he has no power to alter, change or suspend either the fine or a jail sentence after he has issued a jail commitment to the county sheriff even if defendant were less than 21 (now 18) years of age. 1969 Op. Att'y Gen. No. 69-91.

Jurisdiction for Motor Transportation Act violations. — Section 35-3-4 NMSA 1978, prior to its 1973 amendment, did not give magistrate courts jurisdiction to try cases arising out of violations of the Motor Transportation Act (65-1-1 to 65-1-37, 65-3-1, 65-5-1 to 65-5-3, 66-6-2, 66-7-411 to 66-7-415 NMSA 1978). 1969 Op. Att'y Gen. No. 69-53.

No jurisdiction where penalty exceeds statutory limits. — If the penalty for a misdemeanor set by the legislature prescribes a fine or imprisonment or both and either the fine or penalty exceeds the statutory jurisdictional limits of magistrate's courts, these courts are without jurisdiction to try such a violation. This does not disturb the jurisdiction of misdemeanors specifically granted to magistrate's courts by the legislature. 1960 Op. Att'y Gen. No. 60-148.

Maximum penalty determines jurisdiction. — Where the maximum penalty which may be imposed exceeds the jurisdictional limits of the authority of a magistrate, the court thereby loses jurisdiction to try the person accused. To do otherwise would be to lessen the penalties which the legislature has deemed assessable for the named offense. 1960 Op. Att'y Gen. No. 60-188.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Justices of the Peace § 35.