2018 New Mexico Statutes
Chapter 34 - Court Structure and Administration
Article 5 - Court of Appeals
Section 34-5-8 - Court of appeals; appellate jurisdiction.

A. The appellate jurisdiction of the court of appeals is coextensive with the state, and the court has jurisdiction to review on appeal:

(1) any civil action not specifically reserved to the jurisdiction of the supreme court by the constitution or by law;

(2) all actions under the Workmen's Compensation Act [Workers' Compensation Act], the New Mexico Occupational Disease Disablement Law [52-3-1 NMSA 1978], the Subsequent Injury Act and the federal Employers' Liability Act[s];

(3) criminal actions, except those in which a judgment of the district court imposes a sentence of death or life imprisonment;

(4) post-conviction remedy proceedings, except where the sentence involved is death or life imprisonment;

(5) actions for violation of municipal or county ordinances where a fine or imprisonment is imposed;

(6) decisions of administrative agencies of the state; and

(7) decisions in any other action as may be provided by law.

B. The supreme court may provide for the transfer of any action or decision enumerated in this section from the court of appeals to the supreme court in addition to the transfers provided for in Section 34-5-10 and Subsection C of Section 34-5-14 NMSA 1978.

History: 1953 Comp., § 16-7-8, enacted by Laws 1966, ch. 28, § 8; 1967, ch. 24, § 1; 1983, ch. 333, § 1.

Bracketed material. — The bracketed material in this section was inserted by the compiler to correct an apparently erroneous reference and is not a part of the law.

Workers' Compensation Act. — Laws 1987, ch. 235, § 1 amended 52-1-1 NMSA 1978 to cite Chapter 52, Article 1 NMSA 1978 as the "Workers' Compensation Act".

Subsequent Injury Act. — The Subsequent Injury Act, referred to in Subsection A(2), refers to Laws 1961, ch. 134, compiled as 52-2-1 to 52-2-13 NMSA 1978.

Cross references. — For Uniform Certification of Questions of Law Act, see Chapter 39, Article 7 NMSA 1978.

For appellate jurisdiction of court of appeals, see N.M. Const., art. VI, § 29; 34-5-8 NMSA 1978.

For jurisdiction of court of appeals, see N.M. Const., art. VI, § 29; 39-3-2, 39-3-3, 39-3-4, 39-3-6 NMSA 1978.

For appeals from action and order of director of revenue division, see 7-1-25 NMSA 1978.

For appeals under Children's Code, see 32A-1-17 NMSA 1978.

For appeals under Air Quality Control Act, see 74-2-12 NMSA 1978.

For appeals under Water Quality Act, see 74-6-7 NMSA 1978.

For procedure on certiorari to review decision of court of appeals, see 12-502 NMRA.

For procedure on certification from court of appeals, see 12-606 NMRA.

For the federal Employers' Liability Acts, see 45 U.S.C. §§ 51 to 60.

A waiver in a plea agreement of the right of appeal does not divest the court of appeals of jurisdiction to hear an appeal in a criminal proceeding. State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726, overruling 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.

Habeas corpus. — An inmate may not resort to this section when the relief sought can be obtained directly by writ of habeas corpus and a habeas corpus petitioner is not required to first seek relief by a post-conviction remedy motion before seeking a writ of habeas corpus. Cummings v. State, 2007-NMSC-048, 142 N.M. 656, 168 P.3d 1080.

Court of appeals is court of review only. — Defendant's request to produce evidence in post-conviction proceeding before court of appeals was denied because the court of appeals is a court of review. Such review is limited to matters disclosed by the record, and that court cannot originally determine questions of fact. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Pre-enforcement facial review of regulations unauthorized. — The court of appeals was without authority to review the constitutionality of the New Mexico Mining Act (69-36-1 to 69-36-20 NMSA 1978) in the case of an appeal challenging regulations on their face. Old Abe Co. v. N.M. Mining Comm'n, 1995-NMCA-134, 121 N.M. 83, 908 P.2d 776.

Court of appeals not bound by trial court interpretations of statutes and rules; rather, it reviews them to determine whether they are legally correct. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

Jurisdiction over administrative agency decisions limited by statutes. — This section does not automatically give court of appeals jurisdiction over all decisions of administrative agencies; rather, the jurisdiction of the court is limited to those appeals provided for by specific statutes. State ex rel. Dep't of Human Servs. v. Manfre, 1984-NMCA-135, 102 N.M. 241, 693 P.2d 1273; State ex rel. Pilot Dev. N.W., Inc. v. State Health Planning & Dev. Bureau, 1985-NMCA-050, 102 N.M. 791, 701 P.2d 390.

Jurisdiction over mandamus. — Where a mandamus proceeding is consolidated with a district court appeal from a decision of the personnel board, the court of appeals has jurisdiction over the mandamus parties. State ex rel. N.M. State Hwy. Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833.

Jurisdiction in tort counts. — Although the first count of the complaint is for a declaratory judgment and injunctive relief prohibiting the enforcement of portions of a city ordinance, alleging their unconstitutionality, where the second and third counts are for damages for false arrest, a tort action, jurisdiction in the matter is in the court of appeals. Balizer v. Shaver, 1970-NMSC-124, 82 N.M. 53, 475 P.2d 319.

Jurisdiction in count for insurer's bad faith in dismissing action. — The vast majority of the cases where judgments in excess of the policy limits have gone against insurance companies for their bad faith in defending or in refusing to settle have been held to be tort actions; thus, for the determination of jurisdiction on appeal, a civil action which includes a count seeking damages for moving to dismiss action against uninsured motorist is one in which one party seeks damages on an issue based on tort. Chacon v. Mountain States Mut. Cas. Co., 1970-NMSC-125, 82 N.M. 54, 475 P.2d 320.

Jurisdiction regarding damages for illegal and negligent actions. — Where, among other claims, plaintiffs sought damages on the basis of asserted "illegal and negligent" actions on the part of defendants, the court of appeals had subject matter jurisdiction of the appeal, and a motion to transfer was properly denied. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 248.

Jurisdiction in controversy involving uninsured motorist coverage. — Although in one respect an action against an insurer is based on breach of contract, because an action against an insurer is inseparable from a tort action against a tortfeasor where a provision of the insurance policy clearly indicates that the liability of the insurer is contingent upon the liability of a tortfeasor, the court of appeals has jurisdiction of an appeal of an action involving uninsured motorist coverage under this section. Sandoval v. Valdez, 1978-NMCA-016, 91 N.M. 705, 580 P.2d 131, cert. denied, 91 N.M. 610, 577 P.2d 1256.

Jurisdiction may arise out of tort counterclaim. — In a suit for reformation where the defendants denied the material allegations of the complaint and counterclaimed for damages as a result of alleged tortious acts on the part of the plaintiffs, the jurisdiction of the court of appeals arises out of the counterclaim based on tort. Wright v. Brem, 1970-NMCA-030, 81 N.M. 410, 467 P.2d 736.

Criminal jurisdiction extends to review of bond order. — Where court of appeals had jurisdiction over an appeal from defendant's conviction of rape but defendant's motion for review of the order fixing appeal bond was originally docketed in the supreme court and then was transferred to the court of appeals, the transfer of that motion was a final determination of jurisdiction. State v. Lucero, 1970-NMCA-057, 81 N.M. 578, 469 P.2d 727.

Appellate jurisdiction over a district court's decision in an on-record appeal from metropolitan court. — The broad language of 34-5-8(A)(3) NMSA 1978 provides the New Mexico court of appeals with subject matter jurisdiction over all criminal cases, except those that result in a life or death sentence, and therefore in the absence of any constitutional or statutory language carving out an exception for on-record appeals, the successive jurisdiction provided for in 34-5-8(A)(3) includes review of both on-record and de novo appeals decided by the district court. State v. Armijo, 2016-NMSC-021, aff'g 2014-NMCA-013, 316 P.3d 902.

Criminal jurisdiction extends to review of on-record appellate decisions of the district court. — The court of appeals has been vested with jurisdiction over appeals in all criminal actions, with the limited exception of those where a sentence of death or life imprisonment is imposed, including the review of on-record appellate decisions of the district court. State v. Carroll, 2015-NMCA-033, cert. granted, 2015-NMCERT-001.

Where defendant was convicted of DWI following a bench trial in metropolitan court, appealed the conviction to the district court for on-record review, which was affirmed by the district court, and then appealed the district court's decision to the court of appeals, the state's claim that there is no grant of jurisdiction to the court of appeals from a district court's on-record appellate review of a metropolitan court conviction for DWI was in error; Subsection A(3) of this section grants the court of appeals with jurisdiction to hear appeals from a district court's on-record review of a metropolitan court decision. State v. Carroll, 2015-NMCA-033, cert. granted, 2015-NMCERT-001.

Conviction of criminal contempt. — Defendant had the right to appeal conviction for criminal contempt, and court of appeals has jurisdiction over that appeal. State v. Watson, 1971-NMCA-104, 82 N.M. 769, 487 P.2d 197.

Prior to 1967, the court of appeals had no jurisdiction in post-conviction remedy proceedings. State v. Weddle, 1967-NMSC-028, 77 N.M. 420, 423 P.2d 611 (holding post-conviction remedy proceedings not "criminal actions"); 169 A.L.R. 1203.

The court of appeals has jurisdiction if proceedings were commenced after effective date of 1967 amendment. State v. Garlick, 1969-NMSC-068, 80 N.M. 352, 456 P.2d 185 (proceedings not commenced before effective date).

Including jurisdiction of sentence of not less than one nor more than 99 years. — A sentence of not less than one nor more than 99 years is an indeterminate sentence and not a sentence of life imprisonment; therefore, the court of appeals has jurisdiction of a motion for post-conviction relief. Salazar v. State, 1971-NMCA-076, 82 N.M. 630, 485 P.2d 741.

No jurisdiction if sentence is death or life imprisonment. — Court of appeals does not have appellate jurisdiction over post-conviction remedy proceedings where the sentence involved is death or life imprisonment. Martinez v. State, 1990-NMCA-033, 110 N.M. 357, 796 P.2d 250.

Court of appeals has jurisdiction to entertain defendant's probation revocation appeal. State v. Castillo, 1980-NMCA-020, 94 N.M. 352, 610 P.2d 756.

Jurisdiction has been given to review director of revenue division. — The court of appeals has jurisdiction to review directly a decision of the director of the revenue division. Section 7-1-25 NMSA 1978 provides that a protestant dissatisfied with the director's order, after a hearing, may appeal directly to that court. Union County Feedlot, Inc. v. Vigil, 1968-NMCA-088, 79 N.M. 684, 448 P.2d 485.

No jurisdiction to review personnel board or former alcoholism commission. — It has not been provided by law for the court of appeals to review the decision of the personnel board or the alcoholism commission (now abolished). The remedy for review of the administrative actions in such case is by a writ of certiorari from the district court. Durand v. N.M. Comm'n on Alcoholism, 1976-NMCA-077, 89 N.M. 434, 553 P.2d 714.

Order by director of workers' compensation administration is not appealable to the court of appeals. Sun Country Physical Therapy Assocs. v. N.M. Self-Insurers' Fund, 1996-NMCA-008, 121 N.M. 248, 910 P.2d 324.

Standards adopted by agency as rules appealable. — Since the standards for the evaluation of waste water to determine whether it is contaminated were adopted by an administrative agency as rules, they are appealable to the court of appeals. Bokum Resources Corp. v. N.M. Water Quality Control Comm'n, 1979-NMSC-090, 93 N.M. 546, 603 P.2d 285.

Court of appeals has no jurisdiction to review discharge of writ of prohibition. — Appellants' claim in prohibition proceedings that a nonattorney police court judge was not constitutionally qualified to hear their criminal cases arising from violations of municipal ordinances was properly taken directly from the district court to the supreme court. The appeal did not fall within the ambit of this section. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Supreme court precedents must be followed. — The court of appeals is to follow precedents of the supreme court; it is not free to abolish instructions approved by the supreme court, although in appropriate situations it may consider whether the supreme court precedent is applicable. State v. Scott, 1977-NMCA-024, 90 N.M. 256, 561 P.2d 1349, cert. denied, 90 N.M. 637, 567 P.2d 486, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Order approving criminal instructions. — The court of appeals is bound by the supreme court order approving N.M.U.J.I. Crim. 2.10 and 2.20 (now see UJI 14-210 and 14-220) and has no authority to set the instructions aside. State v. Scott, 1977-NMCA-024, 90 N.M. 256, 561 P.2d 1349, cert. denied, 90 N.M. 637, 567 P.2d 486, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Jurisdiction to review jury instructions. — The court of appeals is not precluded from considering error in jury instructions, but is precluded only from overruling those instructions that have been considered by the supreme court in actual cases and controversies that are controlling precedent. State v. Wilson, 1994-NMSC-009, 116 N.M. 793, 867 P.2d 1175.

Law reviews. — For note, "Workmen's Compensation in New Mexico: Pre-Existing Conditions and the Subsequent Injury Act," see 7 Nat. Resources J. 632 (1967).

For article, "Approaching Statutory Interpretation in New Mexico," see 8 Nat. Resources J. 689 (1968).

For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982).

For article, "History of the New Mexico Court of Appeals," see 22 N.M.L. Rev. 595 (1992).

For article, "Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006).