Rule 5-304. Pleas.

A. Alternatives. (1) In general. The attorney for the state and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, on the entering of a plea of guilty or no contest to a charged offense or to a lesser or related offense, the attorney for the state will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. A judge who presides over any phase of a criminal proceeding shall not participate in plea discussions. A judge, or judge pro tempore, not presiding over the criminal proceeding, may be assigned to participate in plea discussions to assist the parties in resolving a criminal case in a manner that serves the interests of justice. (2) With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or no contest, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pre- trial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea. B. Notice. If a plea agreement has been reached by the parties which contemplates entry of a plea of guilty or no contest it shall be reduced to writing substantially in the form approved by the Supreme Court. The court shall require the disclosure of the agreement in open court at the time the plea is offered and shall advise the defendant as required by Paragraph F of Rule 5-303 NMRA. If the plea agreement was not made in exchange for a guaranteed, specific sentence and was instead made with the expectation that the state would only recommend a particular sentence or not oppose the defendant’s request for a particular sentence, the court shall inform the defendant that such recommendations and requests are not binding on the court. Thereupon the court may accept or reject the agreement, or may defer its decision for acceptance or rejection until there has been an opportunity to consider the presentence report. C. Acceptance of plea. If the court accepts a plea agreement that was made in exchange for a guaranteed, specific sentence, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement. If the court accepts a plea agreement that was not made in exchange for a guaranteed, specific sentence, the court may inform the defendant that it will embody in the judgment and sentence the disposition recommended or requested in the plea agreement or that the court’s judgment and sentence will embody a different disposition as authorized by law. D. Rejection of plea. If the court rejects a plea agreement, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is not bound by the plea agreement, afford either party the opportunity to withdraw the agreement and advise the defendant that if the defendant persists in a guilty plea or plea of no contest the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement. This paragraph does not apply to a plea for which the court rejects a recommended or requested sentence but otherwise accepts the plea. E. Plea agreement deadline. A plea agreement between the parties that would eliminate the need for a trial shall be submitted for the court’s consideration by a deadline set in the court’s discretion, but in any event, no plea agreement shall be entered into later than five (5) days before the scheduled date for jury selection or commencement of a bench trial. The court shall set a hearing within the plea deadline at which the defendant’s presence is required and at which the defendant has an opportunity to consider any plea offer. F. Untimely plea agreements. A request for the court to approve an untimely plea agreement less than five (5) days before the scheduled date for jury selection or commencement of a bench trial shall not be granted except on a written finding by the judge of extraordinary circumstances that excuse the untimely submission of the agreement. If the court denies a request to accept an untimely plea agreement, the case shall proceed to trial on the scheduled date. Notwithstanding the denial of a request to accept an untimely plea agreement, a defendant may elect to plead guilty to all legally permissible charges leaving full sentencing discretion with the court, or the prosecution may elect to dismiss any and all charges any time before or during trial. G. Inadmissibility of plea discussions. Evidence of a plea of guilty, later withdrawn, a plea of no contest, or of an offer to plead guilty or no contest to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. H. Determining accuracy of plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment on such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. I. Form of written pleas. A plea and disposition agreement or a conditional plea shall be submitted substantially in the form approved by the Supreme Court.