State v. Lucero

840 P.2d 607, 114 N.M. 460
CourtNew Mexico Court of Appeals
DecidedSeptember 15, 1992
Docket13546
StatusPublished
Cited by13 cases

This text of 840 P.2d 607 (State v. Lucero) 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. Lucero, 840 P.2d 607, 114 N.M. 460 (N.M. Ct. App. 1992).

Opinions

OPINION

PICKARD, Judge.

The issue we confront in this case is whether the metropolitan court six-month rule begins to run anew, as does the district court six-month rule, when a case is remanded following a successful state’s appeal. We hold that it does not.

To put the issue in proper factual perspective, we state the facts chronologically. The state filed its original complaint against defendant on February 6, 1990. On March 12, the metropolitan court scheduled defendant for trial on June 20. On March 16, defendant filed a notice of excusal of the metropolitan court judge. See SCRA 1986, 7-106(A) (Repl.1990) (effective until September 1, 1990). The court wrote “denied” on the notice because it was untimely, but on May 9 the court recused itself. The court reset the trial date, but the new metropolitan court judge for this case had a scheduling conflict. The next trial date was August 1, five days short of six months from the time that the state filed charges against defendant. On the day of trial, defendant sought and received a continuance until September 26. The court issued another continuance and scheduled the case for trial on October 1, the last day of the six-month limit if the only time chargeable to defendant was that due to her requested continuance.

In the meantime, on September 27, defendant filed a motion to dismiss for “preindictment [sic] delay.” The metropolitan court granted the motion on the date of trial, October 1. The state appealed, and the district court, applying an appellate standard of review, affirmed. Upon a first appeal to this court, we reversed in a memorandum opinion, instructing the district court to engage in de novo review. See State v. Hicks, 105 N.M. 286, 731 P.2d 982 (Ct.App.1986).

On remand, the district court engaged in de novo review and reversed its prior position. It held that the metropolitan court erred in dismissing the charges; accordingly, it reversed with directions to reinstate the complaint on the docket. As part of its order reversing, the district court ruled that “[a]fter a successful appeal to the District Court from a dismissal in Metropolitan Court, the State receives a new six-month rule on remand back for trial.” We granted interlocutory appeal to determine whether the district court was correct in so ruling.

We first address whether there should be a new six-month time limit and hold that there should not be. We next address what delay should be chargeable to defendant. We address the second issue because, according to defendant, the appellate delay and the delay due to her request for a continuance are to be counted against her; all other delay is chargeable to the state. Because the original metropolitan court case was dismissed on the final day of the six-month limit, defendant contends that, upon issuance of our mandate, there will be only one day left on the six-month limit in which to try her.

We apply the same canons of construction to supreme court rules of procedure as we apply to statutes. State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct.App.1989). Applicable rules of construction provide that if the words are plain and unambiguous, there is no room for construction. Johnson v. Francke, 105 N.M. 564, 734 P.2d 804 (Ct.App.1987). Courts will not add words to the statute, particularly if the statute makes sense as written. See Burroughs v. Board of County Comm’rs, 88 N.M. 303, 540 P.2d 233 (1975). When there are provisions in analogous statutes that a party contends should be present in the statute at issue in the case, we utilize the process of negative inference to reason that the absence of such provisions in the statute at issue is intentional. Patterson v. Globe Am. Casualty Co., 101 N.M. 541, 685 P.2d 396 (Ct.App.1984).

The metropolitan court six-month rule, SCRA 1986, 7-506(B) (Repl.1990), states:

Any criminal charge within metropolitan court trial jurisdiction which is pending for six (6) months from the date of the arrest of the defendant or the filing of a complaint or citation against the defendant, whichever occurs later, without commencement of a trial by the metropolitan court shall be dismissed with prejudice unless, after a hearing, the judge finds that the defendant was responsible for the failure of the court to commence trial. If a complaint is dismissed pursuant to this paragraph, a criminal charge for the same offense shall not thereafter be filed in any court.

In contrast, the applicable district court rule states: “The trial of a criminal case * * * shall be commenced six (6) months after whichever of the following events occurs latest: * * * (4) in the event of an appeal, * * * the date the mandate or order is filed in the district court disposing of the appeal.” SCRA 1986, 5-604(B).

Measured by the standards recited above, we are compelled to hold that there is no provision in Rule 7-506(B) to commence a new six-month limit under the circumstances of this case. The simple fact is that the rule does not contain any language allowing a new six-month limit. See State v. Valdez, 109 N.M. 759, 762, 790 P.2d 1040, 1043 (Ct.App.1990) (the defendant’s argument was that the similarly worded magistrate six-month rule has no provision for restarting a six-month period after an appeal). Nor is the rule ambiguous. The fact that other rules do contain provisions for new six-month limits upon the happening of certain events, e.g., Rule 5-604, shows that our supreme court is cognizant of how to write such a provision if it so desires.

In this connection, we are not persuaded by the state’s reliance on State v. Sanchez, 109 N.M. 313, 785 P.2d 224 (1989). The state’s desire to add another analogous circumstance to the list of circumstances providing for a new six-month limit in the district court rule is vastly different from adding a new six-month limit to a completely different rule. Accordingly, the district court was in error in ordering a completely new six-month limit.

This does not mean, however, that we necessarily accept defendant’s contention that there is only one day left on the metropolitan court six-month limit. Rule 7-506(B) provides that charges shall be dismissed if trial is not commenced within six months, unless “after a hearing, the judge finds that the defendant was responsible for the failure of the court to commence trial.” Applying the rule as written, we conclude that the exact amount of time left is for the metropolitan court judge in the first instance to determine. Moreover, there are facts to be found before the determination can be made.

We believe that it is for the metropolitan court to make the determination because the rule provides that the metropolitan judge is to hold a hearing and either find or not find that defendant is responsible for the delay.

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State v. Lucero
840 P.2d 607 (New Mexico Court of Appeals, 1992)

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Bluebook (online)
840 P.2d 607, 114 N.M. 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lucero-nmctapp-1992.