Duran v. Eichwald, 31,372.

• Docket Nº: No. 31,372.
• Citation: 210 P.3d 238, 2009 NMSC 030
• Case Date: June 17, 2009
• Court: Supreme Court of New Mexico

210 P.3d 238 2009 NMSC 030 Richard D. DURAN, Petitioner,
v.
Hon. George P. EICHWALD, District Court Judge, Thirteenth Judicial District Court, Respondent, and
Boglarka Foghi, Assistant District Attorney, and Lemuel Martinez, Thirteenth Judicial District Attorney, Real Parties in Interest. No. 31,372. Supreme Court of New Mexico. June 17, 2009.

[210 P.3d 239]

Daniel J. Tallon, Albuquerque, NM, for Petitioner.

Boglarka Foghi, Assistant District Attorney, Bernalillo, NM, Lemuel Lawrence Martinez, District Attorney, Grants, NM, for Real Parties in Interest.

OPINION

PER CURIAM.

{1} We are faced in this case with the difficult task of dismissing a criminal prosecution without a trial on the merits because of the prosecution's failure to bring this matter to trial in a timely manner. The charges of child abuse alleged in this case are, of course, serious ones, which we do not dismiss lightly. But for the reasons set forth below, we conclude that dismissal is the only option available to us under the circumstances of this case. We nevertheless take this opportunity to express our dissatisfaction with the procedural dilemma posed by this case and take steps to provide our courts with greater discretion to address situations like this one in the future.

BACKGROUND

{2} The problem we must address in this extraordinary writ proceeding has its origins in a prior proceeding before this Court filed under Rule 5-604 NMRA of our Rules of Criminal Procedure for the District Courts. Rule 5-604(B), commonly referred to as the six-month rule, requires the commencement of trial in a criminal proceeding within six months of the latest of several different triggering events. If it becomes apparent that trial cannot commence within the six-month time period, the district court, for good cause shown, may extend the time for commencing trial up to an aggregate of six additional months. See Rule 5-604(C). Any additional extensions of time must be sought from this Court. See Rule 5-604(D).

{3} In the underlying criminal proceeding, the defendant (Petitioner, in this case), Richard D. Duran, was indicted for two counts of

210 P.3d 240

negligent child abuse resulting in great bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2005, as amended). Petitioner was arraigned on August 27, 2007, which therefore required the commencement of trial no later than February 27, 2008. See Rule 5-604(B)(1). Thereafter, the State petitioned and the district court granted a six-month extension of time, which extended the commencement of trial until August 27, 2008. On September 24, 2008, twenty-eight days after expiration of the trial deadline, the State filed a petition with this Court asking for an additional six-month extension of time until February 27, 2009. In its petition, the State represented that Mr. Duran objected to the petition for an extension of time and that the district court had set a definite trial setting for October 7, 2008. Mr. Duran did not file a response to the State's petition, and after the time for doing so had expired, this Court partially granted the State's request for an extension of time until November 28, 2008.

{4} On October 14, 2008, Mr. Duran filed with this Court a petition for a writ of prohibition or superintending control. Mr. Duran's petition asked this Court to reconsider its order granting the State an extension of time to commence trial and to enter an order prohibiting the district court from setting the underlying criminal proceeding for trial until this Court could rule on his petition. Mr. Duran represented that the State (1) never served him with a copy of the petition for extension of time filed in this Court, (2) never inquired whether he opposed the request for an extension of time, (3) failed to obtain a definite trial setting from the district court as required by Rule 5-604(E), and (4) failed to disclose in its petition to this Court that Mr. Duran had already filed a motion to dismiss in the district court for violation of the six-month rule. After receiving the State's response and Mr. Duran's subsequent reply, we set the matter for hearing.

{5} At the conclusion of the hearing, we announced our decision ordering the district court to dismiss the charges against Mr. Duran because the State failed to file a timely petition for extension of time and failed to establish any exceptional circumstances to excuse the delay. We also expressed our reluctance to dismiss the charges because of the public's interest in seeing the charges resolved on their merits. But because there was no alternative to dismissal under Rule 5-604, we also announced from the bench our decision to immediately suspend the operation of Paragraph F of the rule until further order of the Court, so that dismissal would not be automatically required in future cases like this one.

DISCUSSION

{6} As noted above, the State failed to request an extension of time to commence trial from this Court until twenty-eight days after the expiration of the prior extension of time granted by the district court. Rule 5-604(E) provides that a petition for extension of time to commence trial "may be filed within ten (10) days after the expiration of the applicable time limit if it is based on exceptional circumstances beyond the control of the parties or trial court which justify the failure to file the petition within the applicable time limit." Because the State's untimely petition did not fall within the ten-day grace period in Paragraph E of...