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Two Charges with no notification?

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Guy Fawkes

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What is the name of your state (only U.S. law)? New Mexico

I have a pending civil case where I'm trying to get joint custody and visitation schedule stipulated in writing, and my ex is a nasty piece of work. She kept threatening to move to Canada to be with another guy and take my son along, so after awhile I filed in Court. But at the same time, she filed an Order of Protection against me, citing psychological / mental abuse. (Over arguments about visitation to my kid..)

Anyway, I had a temporary Court order saying that I was to get visitation Weds/Sat and it was to be through a third party place. Well, she refused to do that and said the only way for me to see my son would be to come get him. She emails me, IMs me every other day, trying to make visitation arrangements and I cannot respond back since the Protection Order stipulates no contact, except in a medical emergency concerning our son. I made a mistake and e-mailed her a few times, but it was a statement like, "I'll be there to get son at x time". Well, we did exchanges through her friend for awhile, but my ex has been pretty hostile to her friend and that same day she was upset because I had asked to exchange on Sunday instead of Saturday (Since I had work). That same day, was the day she filed a police report citing the e-mails as violation of the Protection Order. Now, fast forward to a few weeks later, a day or two after she gets back from Canada, she decides that following the court order was too much of an inconvenience for her and it would be totally easier to do visitation if I didn't have a protection order against me. So she files a motion to terminate the protection order and that's scheduled 3rd July.

I found out yesterday I have a pending criminal case (accidentally looked up records on criminal instead of civil court). Turns out, that my ex had filed a police report saying I violated the Protection Order, and the state filed a criminal suit against me and the bond arraignment was scheduled for yesterday. I never received any notification nor a court order to appear to arraignment. I only found out because I accidentally checked the wrong database for case records. The charges are as follows:

Charge# 1: VIOLATING A PROTECTION ORDER Statute No.: 40-13-6
Charge# 2: FAILURE TO APPEAR IN COURT Statute No.: RCP 12-A

I think my due process rights in this particular situation have been violated, since I never received any court order to appear nor did any police come to my doorstep to arrest me for violating this Protection Order on 5/25.

I looked up the relevant statutes and according to 40-13-6
F. A person convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.
With no criminal record or history of violence, this is the only criminal case I've had brought against me. Now, I looked up Section 31-19-1 NMSA and here is what it said:
A. Where the defendant has been convicted of a crime constituting a misdemeanor, the judge shall sentence the person to be imprisoned in the county jail for a definite term less than one year or to the payment of a fine of not more than one thousand dollars ($1,000) or to both such imprisonment and fine in the discretion of the judge.

B. Where the defendant has been convicted of a crime constituting a petty misdemeanor, the judge shall sentence the person to be imprisoned in the county jail for a definite term not to exceed six months or to the payment of a fine of not more than five hundred dollars ($500) or to both such imprisonment and fine in the discretion of the judge.

C. When the court has deferred or suspended sentence, it shall order the defendant placed on supervised or unsupervised probation for all or some portion of the period of deferment or suspension.
Which one is applicable to the charge? Is this a petty misdemeanor which is no more than 6 months + 500 fine, or is it the misdemeanor class where I could be jailed for a year? Also, I want to clarify whether or not this qualifies as a class D felony. I recall reading this somewhere, but I have been unable to verify this. I went down to the courthouse today and turned myself into the deputies there, since I wanted to get this taken care of on my own terms, instead of waiting until a year or two later when I get pulled over for a traffic violation. Well, they kept me there for about 2 hours, trying to track down the paperwork and getting a judge to sign the warrant. (I had the court records printed out, where it indicated I had a Warrant that was issued, but it hadn't officially been signed by a Judge yet.) After 2 hours, they just let me go and said to come back tomorrow or the next day, and it should be active then. The deputy said something about writing me into some logbook to show that I tried to take care of things. Not sure if that'll help.

So, I intend to go back in there tomorrow and post 1500 bond in full. Either that or I could just stay in jail until I come before a judge for arraignment. I will enter a plea of Not Guilty and ask for Court Appointed Counsel, since I am on Social Security for deafness. I know that it is entirely up to the Prosecuting Attorney to decide whether or not to continue or dismiss the case. I'm not sure whether or not I should try a plea bargain or go to trial, if a copy of an e-mail alone isn't enough to meet the legal standard requirement of 'beyond reasonable doubt'.
 


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