State v. CARLOS A.

923 P.2d 608, 122 N.M. 241
CourtNew Mexico Court of Appeals
DecidedJuly 23, 1996
Docket16624
StatusPublished
Cited by26 cases

This text of 923 P.2d 608 (State v. CARLOS A.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. CARLOS A., 923 P.2d 608, 122 N.M. 241 (N.M. Ct. App. 1996).

Opinion

OPINION

PICKARD, Judge.

1.This case requires us to determine whether a child’s motion to the children’s court for modification of sentence must be in writing. We also consider the jurisdiction of the children’s court once sentence has been passed and a child has been remanded to the custody of the Children, Youth and Families Department (CYFD).

FACTS AND PROCEEDINGS

2. Pursuant to a consent decree, Child was placed on probation on December 19, 1994, by the Bernalillo County children’s court. On January 17,1995, the State filed a petition to revoke Child’s probation for violation of the terms of his probation. Child entered into a plea agreement on February 3, 1995. On February 20, 1995, after completing a diagnostic evaluation at the Youth Diagnostic and Development Center, Child appeared in children’s court for final disposition. He was committed to the CYFD custody for a period not to exceed two years. The judgment and disposition was filed February 20,1995.

3. At the hearing for the final disposition of Child’s case, the children’s court initially refused to grant Child a sentence of probation and committed Child to the custody of CYFD. The court stated:

OK. Carlos, I’m going to commit you to the New Mexico Boy’s School for a period not to exceed two years. Mr. Clary [defense counsel], I’ll invite a motion to reconsider. I’ll bring him back in 60 or 90 days if he’s done extremely well. No gang involvement. No fights. Complete respect for authority. I may reconsider. But I’ll put it on his shoulders. I want to see what he’s able to do. If he’s in one fight, if there’s one incident that I think is serious, he’ll stay there.

Child and the State each apparently agreed with the court’s decision. The court then said:

Lori, tell Margie about that, that I invited a motion on that.

4. Although no written motion was filed with the court requesting a hearing for reconsideration of disposition, a notice of hearing on a motion to reconsider the sentence was filed May 25, 1995. The hearing was held and the motion was granted on June 15, 1995. The children’s court modified Child’s sentence to two years of probation under the authority of the Juvenile Intensive Probation Supervision Program. The judgment and disposition reflecting this changed status was filed June 21, 1995. The State appeals the children’s court’s change of disposition. We affirm.

DISCUSSION

5. The State raises two issues on appeal: (1) whether a written motion for reconsideration was necessary to allow the children’s court to modify Child’s sentence; and (2) whether the children’s court had jurisdiction to modify Child’s sentence four months after sentencing him to the custody of CYFD. NMSA 1978, Section 32A-2-23(G) (Repl. Pamp.1995), requires that a motion to modify a children’s court’s sentence be made within thirty days after the sentence is imposed. The statute does not state a subsequent time limit within which the hearing on the motion must be held. See id.; cf. NMRA 1996, 5-801(B) (motion to modify adult sentence may be filed within 90 days after entry of sentence, and court shall determine motion within 90 days of filing).

6. We conduct a de novo review of the statute to determine whether the statute required Child to file a written motion. See Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993) (questions of law are reviewed de novo). Section 32A-2-23(G) provides that:

A child may make a motion to modify a children’s court or adult disposition within thirty days of the judge’s decision. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency.

The statute does not explicitly require that a motion to modify be made in writing. We agree with the State that the better practice is to file a written motion so that there can be no dispute regarding the making of a motion. However, it is not required by the statute, and this Court will not read such a requirement into the statute. See Naranjo v. Paull, 111 N.M. 165, 168, 803 P.2d 254, 257 (Ct.App.1990) (court will not read language into a statute).

7. The State concedes that Section 32A-2-23(G) does not require that a motion to modify a child’s sentence be made in writing. Nevertheless, the State argues that a written motion ought to be required, and an oral motion must be clear from the record. According to the State, if an oral motion is sufficient, Child must assume the burden of showing that a motion was made. See Baca v. Bueno Foods, 108 N.M. 98, 102, 766 P.2d 1332, 1336 (Ct.App.1988) (one who seeks relief under a statute has the burden of proving that he comes within its terms).

8. We note that there is a presumption of correctness in the rulings or decisions of the trial court and the party claiming error must clearly show error. State v. Weber, 76 N.M. 636, 644, 417 P.2d 444, 449 (1966). The State, as any other party, is subject to the rule that it must make its contentions known in the trial court. State v. Lopez, 99 N.M. 385, 387, 658 P.2d 460, 462 (Ct.App.), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 113 (1983).

9. The State’s argument that the motion was insufficient is not supported by the proceedings below. We decline to adopt an overly technical requirement that the party favoring a motion invited by the court must say the words “so moved” or words to a like effect before the motion will be deemed made. The motion in this case was made when the judge invited Child’s motion to modify immediately after the sentencing. Child agreed, and the State did not object.

10. The motion was understood by both the children’s court and Child to have been invited and made immediately after Child’s sentence was announced. This was within the thirty-day time frame mandated by the statute. The State failed to object or move to clarify the children’s court’s decision to reserve the right to modify Child’s sentence. The burden is on the party opposing a ruling to make objections known to the court as soon as possible in order to afford the court an opportunity to reconsider its rulings on a matter. See State v. Montoya, 80 N.M. 64, 67, 451 P.2d 557, 560 (Ct.App.1968), aff'd sub nom. Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969).

11. After the events that occurred in the instant case, the Supreme Court adopted Children’s Court Rule 10-103.1(A).

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Bluebook (online)
923 P.2d 608, 122 N.M. 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carlos-a-nmctapp-1996.