Section 31-11-1 - Stay of execution; release. - New Mexico Statutes

31-11-1. Stay of execution; release.

A.     All appeals and writs of error in criminal cases have the effect of a stay of execution of the sentence of the district court until the decision of the supreme court or court of appeals.   

B.     If a defendant is convicted of a capital or violent offense and is sentenced to death or a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal.   

C.     If a defendant is convicted of a noncapital offense other than a violent offense and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:   

(1)     by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and   

(2)     that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.   

D.     As used in Subsections B and C of this section, "violent offense" means:   

(1)     kidnaping;   

(2)     criminal sexual penetration in the first or second degree;   

(3)     armed robbery;   

(4)     murder in the second degree;   

(5)     aggravated burglary;   

(6)     aggravated arson; or   

(7)     assault with intent to commit violent felony upon peace officer.   

E.     In all parole and probation revocation proceedings, where the alleged violation by the parolee or probationer of the conditions of release poses a threat to himself or others, the defendant shall not be entitled to be released on bail pending the decision on revocation.  In those instances where the state has failed to conduct a preliminary parole revocation hearing on a parolee held for parole violations within sixty days of arrest, the parolee shall be eligible for bail.  In all cases, the final parole revocation hearing shall be scheduled for hearing within sixty days of the parolee's return to the penitentiary.  In the case of probation violation, if the final probation revocation hearing is not brought before the court within sixty days, then the probationer shall be eligible for bail.