STATE V. SHARP, 2012-NMCA-042,
276 P.3d 969
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
WILLIAM SHARP, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
2012-NMCA-042, 276 P.3d 969
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Robert S.
Orlik, District Judge.
Certiorari Denied, March 23, 2012, No.
33,481. Released for Publication May 15, 2012.
Gary K. King, Attorney General, Andrew S.
Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellant.
Liane E. Kerr, Albuquerque, NM, for
Appellee.
JONATHAN B. SUTIN, Judge. WE CONCUR: JAMES
J. WECHSLER, Judge, RODERICK T. KENNEDY, Judge.
AUTHOR: JONATHAN B. SUTIN.
{1} In a de novo appeal
from magistrate court, the district court dismissed with prejudice the charges
against Defendant owing to a violation of Rule
6-506 NMRA, commonly referred to
as “the six-month rule.” The district court’s stated reasons for dismissing the
case were (1) the State’s failure to respond, in writing, to Defendant’s
magistrate court motion to dismiss, and (2) the magistrate court’s failure to
provide a statement in the record as to the extraordinary basis pursuant to
Rule 6-506(C)(5) upon which it found exceptional circumstances to extend the
time limit within which to hold a trial. On the State’s appeal, we hold that
the district court improperly treated the matter as an on-the-record appeal
instead of as a de novo appeal and that the district court failed to apply Rule
6-506(E). We reverse and remand to the district court for an independent
determination of whether, under the particular facts of this case, the
violation of the six-month rule warranted dismissal.
{2} Defendant was
charged in a criminal complaint filed March 16, 2009, with aggravated driving
while intoxicated (DWI) and failing to maintain a lane. On March 23, 2009,
Defendant filed a waiver of arraignment. This gave rise to the Rule 6-506(B)(1)
requirement that Defendant’s trial commence within 182 days, by September 21,
2009. On June 10, 2009, Defendant filed a motion to suppress. On July 31, 2009,
with the State’s consent, Defendant filed a motion to continue the trial
scheduled for August 4, 2009. The trial was rescheduled for September 1, 2009.
On September 1, 2009, the matter was vacated to allow a hearing on Defendant’s
motion to suppress, which was set for October 2, 2009. Also on September 1,
2009, jury selection was reset for October 6, 2009. On October 6, 2009, the
trial was rescheduled for October 28, 2009. On October 2, 2009, Defendant filed
a motion to dismiss for failure to comply with the six-month rule, which the
magistrate court denied on October 5, 2009. Following the jury trial on October
28, 2009, Defendant was found guilty of the charges in the complaint.
{3} In Defendant’s de
novo appeal to the district court, he filed a motion to dismiss based on
violation of the six-month rule and based on the State’s failure in magistrate
court to file a motion to extend the deadline for trial. At the hearing on
Defendant’s motion, Defendant acknowledged that the delays were to his benefit.
The district court dismissed the case with prejudice, stating as grounds for
dismissal that (1) the State had not responded to Defendant’s magistrate court
motion to dismiss, and (2) the magistrate court extended the time limit within
which to hold a trial “without a statement on the record as to the
extraordinary basis upon which it was to be extended.”
{4} On appeal, the
State argues that the district court erred in dismissing the case because the
court relied on the former version of Rule 6-506(E) which mandated dismissal
with prejudice for failure to comply with the six-month rule, rather than the
current and applicable version of Rule 6-506(E), which affords the court
discretion in determining whether to dismiss the case or to consider other
sanctions as appropriate. The State also argues that Rule 6-506 was not
violated in the first place because the delay was requested by and benefitted
Defendant, and because the magistrate court correctly extended the time
pursuant to Rule 6-506(C)(5).
{5} “We review de novo
questions of law concerning the interpretation of Supreme Court rules and the
district court’s application of the law to the facts of [the] case.”
State
v. Foster,
2003-NMCA-099, ¶ 6,
134 N.M. 224,
75 P.3d 824. The appeal of a
magistrate court decision to a district court is de novo. Rule
6-703(J) NMRA.
In hearing a de novo appeal, “the district court is not in any way bound by the
proceedings in the lower court.”
State v. Hicks,
105 N.M. 286, 287,
731
P.2d 982, 983 (Ct. App. 1986). Further, the district court must independently
determine whether the magistrate court rules were followed.
See id.
(stating that in a de novo appeal from a metropolitan court decision, “it was
incumbent upon the district court to make an independent determination of
whether” the law enforcement officer had complied with the metropolitan court
rule requiring a criminal complaint to be filed “forthwith” in accordance with
the then-applicable rule (internal quotation marks omitted)).
{6} The former version
of Rule 6-506(E) mandated dismissal with prejudice in the event of
non-compliance with Rule 6-506(B).
See Rule 6-506 compiler’s annots.
(explaining that the 2008 amendment, effective January 15, 2009, to Subsection
(E) changed “shall” to “may”). The former version was replaced with the current
version of Rule 6-506(E) that allows the court to exercise discretion to
dismiss the case for a violation of the six-month rule or to apply other
sanctions, as appropriate, depending upon the circumstances of the case.
See
Duran v. Eichwald,
2009-NMSC-030, ¶ 15,
146 N.M. 341,
210 P.3d 238
(stating that all versions of the six-month rule, including Rule 6-506, were
amended by a Supreme Court order to give courts discretion to decide whether
the failure to timely commence trial should result in dismissal of the charges
or whether some other sanction would be more appropriate).
{7} In the district
court hearing on Defendant’s motion to dismiss, Defendant’s counsel advised the
court that dismissal was mandatory, stating that “the fact remains that under
the rule . . . if the . . . time is not extended then the court shall dismiss
it, and it’s a shall rule.” The State did not seek to correct Defendant’s
incorrect statement of the law nor did the State alert the court to the
current, discretionary version of Rule 6-506(E). Because there is no evidence
in the record that the district court considered or applied any particular
version of Rule 6-506(E) in this case, and because the State failed to preserve
a Rule 6-506(E) issue by raising it in the district court, we do not consider
this aspect of the State’s argument.
See State v. Riley,
2010-NMSC-005, ¶ 24,
147 N.M. 557,
226 P.3d 656 (“To preserve a question for
review it must appear that a ruling or decision by the district court was
fairly invoked.” (alteration omitted) (internal quotation marks and citation
omitted));
State v. Garcia,
2005-NMCA-065, ¶ 6,
137 N.M. 583,
113 P.3d
406 (“We generally do not consider issues on appeal that are not preserved
below.”);
see also State v. Hunter,
2001-NMCA-078, ¶ 18,
131 N.M.
76,
33 P.3d 296 (“Matters not of record present no issue for review.”).
{8} The record does not
support the district court’s first stated ground for dismissal, which was that
the State failed to respond in magistrate court to Defendant’s written motion
to dismiss. The record reflects that Defendant filed his written motion to
dismiss in magistrate court at 11:48 a.m. on the day of the hearing on
Defendant’s motion to suppress, which was scheduled for 11:30 a.m., and also at
which the magistrate court heard Defendant’s argument on his motion to dismiss.
Thus, although it is true that the State did not file a written response to the
motion, it appears that the State did not have an opportunity to do so. The
record does reflect that the State orally argued its opposition to Defendant’s
motion to dismiss and that three days later the magistrate court, “having heard
arguments of both parties[,]” entered a written order denying Defendant’s
motion to dismiss. Even if the district court’s view of the proceedings in the
magistrate court were accurate, it was error for the district court to base its
dismissal on this rationale given that the failure of the State in the
magistrate court proceedings to adhere to the formality of a written response
in magistrate court motion practice should not be the subject of a district
court’s independent consideration in a de novo proceeding on the issue of a violation
of the six-month rule.
Cf. Hicks, 105 N.M. at 287, 731 P.2d at 983
(stating that in a de novo appeal “it [is] incumbent upon the district court to
make an independent determination of whether the . . . [rules of magistrate
court were followed]”).
{9} The State’s next
contention is that the district court erred in determining that the magistrate
court violated Rule 6-506. The magistrate court, acting on its own motion,
extended the time to commence trial pursuant to Rule 6-506(C)(5), which states
that
[t]he time for commencement of
trial may be extended by the court . . . upon a determination by the court that
exceptional circumstances exist that were beyond the control of the state or
the court that prevented the case from being heard within the time period
provided that the aggregate of all extensions granted pursuant to this
subparagraph may not exceed sixty . . . days[.]
In a written order, the magistrate court denied Defendant’s
motion to dismiss “due to circumstances in this case being outside the control
of the State or the [c]ourt” and ordered that the time within which to commence
trial would be extended for thirty days pursuant to Rule 6-506(C)(5). The
State’s position is that the magistrate court properly extended the time to
commence trial and that, in doing so, acted in compliance with the rule. Citing
State v. Lobato, 2006-NMCA-051, ¶¶ 26, 28, 139 N.M. 431, 134 P.3d 122,
the State contends that because the delay was to Defendant’s benefit and
because he acquiesced in the delay, common sense supported the magistrate
court’s decision to extend the time within which to hold trial, and the
district court should have concluded the same.
{10} Defendant argues
that his motion to dismiss was properly granted because, as the district court
held, the magistrate court failed to make a record of what was “the
extraordinary basis upon which [the time within which to hold trial] was to be
extended.” Defendant argues that it was incumbent upon the magistrate court to
make a written record of its findings and to specifically state the exceptional
circumstances that warranted an extension of the six-month rule because the
magistrate court’s statement of exceptional circumstances was “clearly
something which [was] necessary for review of this issue.”
{11} We see no necessity
for the requirement advanced by Defendant and the district court given that the
appeal to the district court is not an on-the-record review but, instead, is de
novo. Thus, were we to decide this case on this single circumstance, we would reverse
the district court’s ruling because no rule or case law required the magistrate
court to create a record of what were the exceptional circumstances that led to
its decision. For the reasons explained later in this Opinion, we reverse the
district court on other, broader grounds. Unlike appeals to this Court, in
which we often afford deference to the discretionary decisions of the lower
court, in de novo appeals from the magistrate court, the district court “is not
in any way bound” by the magistrate court’s decision, and it is “incumbent upon
the district court to make an independent determination” of whether the
magistrate court rules were followed.
Hicks, 105 N.M. at 287, 731 P.2d
at 983. A de novo appeal in the district court is conducted “as if the trial in
the [magistrate] court had not occurred.”
Foster,
2003-NMCA-099, ¶ 9.
{12} In
Hicks, the
defendant was arrested, and a criminal complaint was filed eight days later.
105 N.M. at 286-87, 731 P.2d at 982-83. Then-applicable Metropolitan Court Rule
38(d) required the arresting officer to file a criminal complaint in the
magistrate court “forthwith.”
Id. at 287, 731 P.2d at 983. The
metropolitan court determined that the complaint had not been filed “forthwith”
and dismissed the charge accordingly.
Id. The district court, concluding
that the decision whether to dismiss was left to the magistrate court’s
discretion and that the prosecution had failed to demonstrate that the
metropolitan court had abused its discretion, affirmed the ruling.
Id.
The prosecution appealed to this Court, claiming that it was error for the
district court to apply an appellate, rather than a de novo standard of review.
Id. Agreeing with the prosecution, this Court remanded for the district
court to independently consider, de novo, whether the officer had complied with
the “forthwith” requirement of the metropolitan court rule.
Id.
{13} Here, as in
Hicks,
the district court improperly engaged in an appellate, rather than a de novo
review. Rather than basing its decision on an independent determination of
whether the violation of the six-month rule warranted dismissal in this case,
the district court reviewed the action of the magistrate court and dismissed
the case based on what it believed was the magistrate court’s error. The record
does not reflect that the district court made an independent determination on
the issue of violation of the six-month rule. Therefore, as in
Hicks, we
reverse the district court’s ruling and remand for a de novo proceeding in
which the district court shall independently determine whether dismissal was
warranted under the facts of the case.
{14} We reverse the
district court’s dismissal of the case with prejudice and remand the case for
de novo proceedings in accordance with this Opinion.
RODERICK T. KENNEDY, Judge
Topic Index for State v. Sharp, Docket No. 30,558
CA-DC Dismissal of Charges
JD-AJ Appellate Jurisdiction