The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: October 17, 2022
4 No. A-1-CA-39311
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellant,
7 v.
8 JASON EVANS a/k/a 9 JASON EDWARD EVANS,
10 Defendant-Appellee.
11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Curtis R. Gurley, District Judge
13 Hector H. Balderas, Attorney General 14 Emily Tyson-Jorgenson, Assistant Attorney General 15 Santa Fe, NM
16 for Appellant
17 Bennett J. Baur, Chief Public Defender 18 William O’Connell, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellee 1 OPINION
2 BOGARDUS, Judge.
3 {1} In this case, we are asked to consider whether a preliminary hearing is required
4 in a case in which Defendant Jason Evans is charged only with misdemeanors. The
5 State’s appeal arises from the district court’s order dismissing six misdemeanor
6 charges filed against Defendant. The State argues that the district court erred when
7 (1) it interpreted Rule 5-201(C) NMRA, which governs charges by criminal
8 information to require a preliminary hearing when a defendant’s charges are limited
9 to misdemeanors; and (2) it relied on the State’s erroneous statement that “Defendant
10 waived preliminary hearing” as an alternative reason for dismissal. We reverse and
11 remand.
12 BACKGROUND
13 {2} The State initially filed a criminal complaint in magistrate court charging
14 Defendant with six misdemeanors. After the magistrate court denied the State’s
15 motion for continuance, the State voluntarily dismissed the complaint because the
16 testifying officers were unavailable. Three days later, the State refiled the case in
17 district court by criminal information, charging Defendant with the same
18 misdemeanors and erroneously stating that “Defendant waived preliminary
19 hearing.” 1 {3} Thereafter, Defendant filed a motion to dismiss the criminal information
2 arguing that Rule 5-201(C) “contemplates the filing of a [c]riminal [i]nformation
3 only after a preliminary hearing or waiver thereof [and n]either of these events
4 occurred.” The State opposed the motion, arguing that Defendant had “no right to a
5 preliminary hearing on misdemeanor charges.”
6 {4} The district court agreed with Defendant and dismissed the criminal
7 information. The district court interpreted Rule 5-201(C) to require a preliminary
8 hearing or a waiver of the hearing before an information is filed in the district court.
9 Additionally, the court cited the State’s “clear factual misrepresentation” regarding
10 waiver of the preliminary hearing as another reason to dismiss. The State appeals.
11 {5} We reserve discussion of additional facts relevant to Defendant’s appeal
12 where appropriate in our analysis.
13 DISCUSSION
14 I. The District Court Erred in Interpreting Rule 5-201(C) to Require a 15 Preliminary Hearing Be Held or Waived Before an Information Is Filed
16 {6} The State argues that Defendant was not entitled to a preliminary hearing
17 because he was charged only with misdemeanors and the district court’s reliance on
18 Rule 5-201 was in error because the rule does not contain a specific requirement for
19 a preliminary hearing in such circumstances. Defendant argues that dismissal was
20 proper to rectify the State’s error in filing a criminal information instead of a criminal
21 complaint, which does not require a preliminary hearing.
2 1 {7} The State’s argument requires us to interpret the language of the rule, which
2 is a question of law that we review de novo. Allen v. LeMaster, 2012-NMSC-001,
3 ¶ 11, 267 P.3d 806. When construing procedural rules, we use the same rules of
4 construction applicable to the interpretation of statutes. See Walker v. Walton, 2003-
5 NMSC-014, ¶ 8, 133 N.M. 766, 70 P.3d 756. “We first look to the language of the
6 rule.” In re Michael L., 2002-NMCA-076, ¶ 9, 132 N.M. 479, 50 P.3d 574. “If the
7 rule is unambiguous, we give effect to its language and refrain from further
8 interpretation.” Id. If a rule is ambiguous, we consider its purpose in conjunction
9 with other rules. See In re Zac McV., 1998-NMCA-114, ¶ 10, 125 N.M. 583, 964
10 P.2d 144. We also seek guidance from the rule’s language, history, and background.
11 Roark v. Farmers Grp., Inc., 2007-NMCA-074, ¶ 50, 142 N.M. 59, 162 P.3d 896.
12 {8} As an initial matter, a defendant’s right to a preliminary hearing is limited to
13 those instances when a person is charged with a “capital, felonious or infamous
14 crime.” N.M. Const. art. II, § 14. This court has interpreted our state constitution to
15 conclude that “[a]n accused has no right to a preliminary hearing on a misdemeanor
16 charge.” State v. Greyeyes, 1987-NMCA-022, ¶ 15, 105 N.M. 549, 734 P.2d 789.
17 Therefore, we next consider whether the language of Rule 5-201(C) expands the
18 right to a preliminary hearing beyond our state constitution or if the rule simply
19 prescribes deadlines for filing a criminal information if a preliminary hearing was
20 otherwise required. We conclude it is the latter, and explain.
3 1 {9} The language of Rule 5-201(C) sets out the requirements for a criminal
2 information, which are a “written statement, signed by the district attorney,
3 containing the essential facts, common name of the offense, and, if applicable, a
4 specific section number of the New Mexico Statutes which defines the offense.” The
5 rule is silent regarding whether a preliminary hearing must occur before the criminal
6 information is filed. The absence of this specific requirement has been interpreted to
7 allow the State to file an information before the preliminary hearing. See State v.
8 Bailey, 1956-NMSC-123, ¶ 3, 62 N.M. 111, 305 P.2d 725 (holding that “[t]he court
9 did not err in putting appellant to trial upon an information filed prior to the
10 preliminary examination”); Rule 5-201 comm. cmt. (“Nothing . . . prohibits the
11 prosecution from first filing the information.”).
12 {10} Further, the rule states, “On completion of a preliminary examination or
13 acceptance of a waiver thereof by the district court, an information shall be filed
14 within thirty (30) days if a defendant is not in custody, and within ten (10) days if a
15 defendant is in custody.” Rule 5-201(C). Nothing in the rule creates a specific
16 preliminary hearing requirement for criminal informations charging misdemeanors.
17 Rather, the language prescribes deadlines for filing the information if a preliminary
18 hearing has occurred. Thus, if the preliminary hearing has not been completed, or it
19 is not required, or it has been waived, those deadlines do not apply. Such is the case
20 when the prosecution holds the preliminary hearing after filing the criminal
4 1 information, as permitted by Bailey, or when a defendant does not have the
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The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: October 17, 2022
4 No. A-1-CA-39311
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellant,
7 v.
8 JASON EVANS a/k/a 9 JASON EDWARD EVANS,
10 Defendant-Appellee.
11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Curtis R. Gurley, District Judge
13 Hector H. Balderas, Attorney General 14 Emily Tyson-Jorgenson, Assistant Attorney General 15 Santa Fe, NM
16 for Appellant
17 Bennett J. Baur, Chief Public Defender 18 William O’Connell, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellee 1 OPINION
2 BOGARDUS, Judge.
3 {1} In this case, we are asked to consider whether a preliminary hearing is required
4 in a case in which Defendant Jason Evans is charged only with misdemeanors. The
5 State’s appeal arises from the district court’s order dismissing six misdemeanor
6 charges filed against Defendant. The State argues that the district court erred when
7 (1) it interpreted Rule 5-201(C) NMRA, which governs charges by criminal
8 information to require a preliminary hearing when a defendant’s charges are limited
9 to misdemeanors; and (2) it relied on the State’s erroneous statement that “Defendant
10 waived preliminary hearing” as an alternative reason for dismissal. We reverse and
11 remand.
12 BACKGROUND
13 {2} The State initially filed a criminal complaint in magistrate court charging
14 Defendant with six misdemeanors. After the magistrate court denied the State’s
15 motion for continuance, the State voluntarily dismissed the complaint because the
16 testifying officers were unavailable. Three days later, the State refiled the case in
17 district court by criminal information, charging Defendant with the same
18 misdemeanors and erroneously stating that “Defendant waived preliminary
19 hearing.” 1 {3} Thereafter, Defendant filed a motion to dismiss the criminal information
2 arguing that Rule 5-201(C) “contemplates the filing of a [c]riminal [i]nformation
3 only after a preliminary hearing or waiver thereof [and n]either of these events
4 occurred.” The State opposed the motion, arguing that Defendant had “no right to a
5 preliminary hearing on misdemeanor charges.”
6 {4} The district court agreed with Defendant and dismissed the criminal
7 information. The district court interpreted Rule 5-201(C) to require a preliminary
8 hearing or a waiver of the hearing before an information is filed in the district court.
9 Additionally, the court cited the State’s “clear factual misrepresentation” regarding
10 waiver of the preliminary hearing as another reason to dismiss. The State appeals.
11 {5} We reserve discussion of additional facts relevant to Defendant’s appeal
12 where appropriate in our analysis.
13 DISCUSSION
14 I. The District Court Erred in Interpreting Rule 5-201(C) to Require a 15 Preliminary Hearing Be Held or Waived Before an Information Is Filed
16 {6} The State argues that Defendant was not entitled to a preliminary hearing
17 because he was charged only with misdemeanors and the district court’s reliance on
18 Rule 5-201 was in error because the rule does not contain a specific requirement for
19 a preliminary hearing in such circumstances. Defendant argues that dismissal was
20 proper to rectify the State’s error in filing a criminal information instead of a criminal
21 complaint, which does not require a preliminary hearing.
2 1 {7} The State’s argument requires us to interpret the language of the rule, which
2 is a question of law that we review de novo. Allen v. LeMaster, 2012-NMSC-001,
3 ¶ 11, 267 P.3d 806. When construing procedural rules, we use the same rules of
4 construction applicable to the interpretation of statutes. See Walker v. Walton, 2003-
5 NMSC-014, ¶ 8, 133 N.M. 766, 70 P.3d 756. “We first look to the language of the
6 rule.” In re Michael L., 2002-NMCA-076, ¶ 9, 132 N.M. 479, 50 P.3d 574. “If the
7 rule is unambiguous, we give effect to its language and refrain from further
8 interpretation.” Id. If a rule is ambiguous, we consider its purpose in conjunction
9 with other rules. See In re Zac McV., 1998-NMCA-114, ¶ 10, 125 N.M. 583, 964
10 P.2d 144. We also seek guidance from the rule’s language, history, and background.
11 Roark v. Farmers Grp., Inc., 2007-NMCA-074, ¶ 50, 142 N.M. 59, 162 P.3d 896.
12 {8} As an initial matter, a defendant’s right to a preliminary hearing is limited to
13 those instances when a person is charged with a “capital, felonious or infamous
14 crime.” N.M. Const. art. II, § 14. This court has interpreted our state constitution to
15 conclude that “[a]n accused has no right to a preliminary hearing on a misdemeanor
16 charge.” State v. Greyeyes, 1987-NMCA-022, ¶ 15, 105 N.M. 549, 734 P.2d 789.
17 Therefore, we next consider whether the language of Rule 5-201(C) expands the
18 right to a preliminary hearing beyond our state constitution or if the rule simply
19 prescribes deadlines for filing a criminal information if a preliminary hearing was
20 otherwise required. We conclude it is the latter, and explain.
3 1 {9} The language of Rule 5-201(C) sets out the requirements for a criminal
2 information, which are a “written statement, signed by the district attorney,
3 containing the essential facts, common name of the offense, and, if applicable, a
4 specific section number of the New Mexico Statutes which defines the offense.” The
5 rule is silent regarding whether a preliminary hearing must occur before the criminal
6 information is filed. The absence of this specific requirement has been interpreted to
7 allow the State to file an information before the preliminary hearing. See State v.
8 Bailey, 1956-NMSC-123, ¶ 3, 62 N.M. 111, 305 P.2d 725 (holding that “[t]he court
9 did not err in putting appellant to trial upon an information filed prior to the
10 preliminary examination”); Rule 5-201 comm. cmt. (“Nothing . . . prohibits the
11 prosecution from first filing the information.”).
12 {10} Further, the rule states, “On completion of a preliminary examination or
13 acceptance of a waiver thereof by the district court, an information shall be filed
14 within thirty (30) days if a defendant is not in custody, and within ten (10) days if a
15 defendant is in custody.” Rule 5-201(C). Nothing in the rule creates a specific
16 preliminary hearing requirement for criminal informations charging misdemeanors.
17 Rather, the language prescribes deadlines for filing the information if a preliminary
18 hearing has occurred. Thus, if the preliminary hearing has not been completed, or it
19 is not required, or it has been waived, those deadlines do not apply. Such is the case
20 when the prosecution holds the preliminary hearing after filing the criminal
4 1 information, as permitted by Bailey, or when a defendant does not have the
2 constitutional right to a preliminary hearing, as in the present case.
3 {11} Our conclusion is supported by our Supreme Court’s rulings in Bailey, 1956-
4 NMSC-123, and State v. Nelson, 1958-NMSC-018, 63 N.M. 428, 321 P.2d 202. In
5 both cases a criminal information was filed before the preliminary hearing. See
6 Bailey, 1956-NMSC-123, ¶ 3; Nelson, 1958-NMSC-018, ¶ 25. In each of these
7 cases, our Supreme Court held that “[t]he [district] court did not err in putting
8 appellant to trial upon an information filed prior to the preliminary examination.”
9 Bailey, 1956-NMSC-123, ¶ 3; Nelson, 1958-NMSC-018, ¶ 26 (same). If Rule 5-
10 201(C) categorically required “a preliminary examination be held or waived before
11 an information is filed,” as the district court held, our Supreme Court would not have
12 permitted the prosecution in Bailey and Nelson to hold the preliminary hearing after
13 filing the information. 1 (Emphasis added.)
14 {12} Our interpretation is further supported by the history and purpose of the
15 preliminary hearing. The primary purpose of the preliminary hearing is to provide
16 an opportunity for independent evaluation of the state’s showing of probable cause.
17 State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, ¶ 5, 124 N.M. 375, 950
1 In Bailey and Nelson a preliminary hearing was constitutionally required, either before or after the criminal information was filed, because the defendants had been charged with felonies. See Bailey, 1956-NMSC-123, ¶¶ 1, 3; Nelson, 1958- NMSC-018, ¶¶ 1, 25.
5 1 P.2d 818. The preliminary hearing “operates as a screening device to prevent hasty
2 and unwise prosecutions and to save an innocent accused from the humiliation and
3 anxiety of a public prosecution.” Id. ¶ 6. “The preliminary hearing originally was
4 instituted as a charge-screening process in response to delays in the grand jury
5 indictment process.” 4 Wayne R. LaFave et al., Criminal Procedure § 14.1(a) n.2
6 (4th ed. 2021). Because prosecutions by grand jury indictment were typically limited
7 to felonies, the preliminary hearing was also limited to felonies. Id.
8 {13} Construing the rule to require district courts to provide independent evaluation
9 through preliminary hearings to misdemeanors charges would be contrary to the goal
10 of expediting the screening process. Misdemeanor charges undergo screening by the
11 court’s issuance of arrest warrants or by judicial review of arrests pursuant to the
12 misdemeanor arrest rule. See id.; see also City of Santa Fe v. Martinez, 2010-NMSC-
13 033, ¶ 6, 148 N.M. 708, 242 P.3d 275 (“[A]n officer may only arrest without a
14 warrant one guilty of a misdemeanor if committed in his presence.” (internal
15 quotation marks and citation omitted)). These independent screening processes are
16 deliberately less demanding than those required for felonies because “misdemeanors
17 do not threaten public safety to the level of felonies.” Martinez, 2010-NMSC-033,
18 ¶ 12 (explaining the basis for permitting warrantless misdemeanor arrests).
19 {14} Although Defendant’s argument is not developed and thus is not entirely
20 clear, to the extent that Defendant argues that the State’s error was in filing a criminal
6 1 information in this instance, rather than a criminal complaint, we disagree. Rule 5-
2 201(A) authorizes the State to initiate prosecution by filing a complaint, information,
3 or an indictment. Thus, we find no error in the the State’s choice of filing an
4 information.
5 {15} Based on our review of relevant authority and the rule’s language and purpose,
6 we conclude that Rule 5-201(C) prescribes filing deadlines in the event that a
7 preliminary hearing has been completed or waived prior to filing; it does not require
8 a prior preliminary hearing for every instance, as in this case, in which Defendant
9 was charged only with misdemeanors. Accordingly, the district court erred by
10 requiring a preliminary hearing.
11 II. The District Court Erred in Dismissing the Complaint Based on the 12 State’s Erroneous Statement That Defendant Waived Preliminary 13 Hearing
14 {16} Defendant contends that pursuant to State v. Le Mier, 2017-NMSC-017, 394
15 P.3d 395, and State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, he
16 suffered prejudice, and therefore dismissal was appropriate to rectify the State’s
17 error. The only argument Defendant makes in support of his claim of prejudice is
18 that courts “examine charging documents to determine the culpability of
19 defendants.” Defendant fails to explain how the State’s error in the charging
20 document prejudiced him—especially since the district court did not rely on it and
21 instead dismissed the charges—thus, Defendant’s claim of prejudice is without
7 1 merit. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d
2 318 (“An assertion of prejudice is not a showing of prejudice.”); see also State v.
3 Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (observing that appellate courts are
4 under no obligation to review unclear or undeveloped arguments).
5 CONCLUSION
6 {17} For the foregoing reasons, we reverse and remand.
7 {18} IT IS SO ORDERED.
8 _____________________________ 9 KRISTINA BOGARDUS, Judge
10 WE CONCUR:
11 ______________________________ 12 JACQUELINE R. MEDINA, Judge
13 ______________________________ 14 KATHERINE A. WRAY, Judge