State v. DeBaca

• Decision Date: 09 August 1977
• Docket Number: No. 2954,2954
• Citation: 568 P.2d 1252,1977 NMCA 89,90 N.M. 806
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Melquides C. DeBACA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1252

568 P.2d 1252

90 N.M. 806

STATE of New Mexico, Plaintiff-Appellee, v. Melquides C. DeBACA, Defendant-Appellant.

No. 2954.

Court of Appeals of New Mexico.

Aug. 9, 1977.

Thomas A. Tabet, Marchiondo & Berry, P. A., Albuquerque, for defendant-appellant

Toney Anaya, Atty. Gen., Roderick A. Dorr, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Convicted in magistrate court of driving while under the influence of liquor and careless driving, defendant appealed to the district court. The notice of appeal was filed in the district court on August 6, 1976. The district court trial was held on March 3, 1977. The district court found defendant guilty; he appealed to this Court. The dispositive issue concerns the time of the district court trial and involves three rules adopted by the Supreme Court.

The three rules are: (1) old Magistrate Criminal 40 (Rule 40 of the Rules of Criminal Procedure for the Magistrate Courts, effective October 1, 1974); (2) new Magistrate Criminal 41 (this was formerly old Magistrate Criminal 40 renumbered to Rule 41 upon adoption of amendments effective October 1, 1976); (3) Criminal Procedure 37 (Rule 37 of the Rules of Criminal Procedure for the District Courts).

Old Magistrate Crim. 40 reads:

"(h) Disposition Time Limitations. Any appeal pending in the district court ninety days after the filing of the notice of appeal without disposition shall be: (1) reversed and an order shall be entered by the district court dismissing the complaint with prejudice, unless the defendant was responsible for the failure of the district court to complete the disposition of the proceeding; (2) affirmed, if, after a hearing, the district court finds that the defendant, without good cause, was responsible for the failure of the district court to complete the disposition of the case.

"(i) Extension of Time. The time limits specified in subsection (h) of this rule may be extended one time for a period not exceeding ninety days upon a showing of good cause to the district court. The party seeking an extension of time beyond the ninety-day appeal limit of subsection (h) of this rule shall, within said ninety-day period, file with the clerk of the district court a verified petition for extension concisely stating the facts petitioner deems to constitute good cause and forthwith serve a copy thereof on the opposing party. Hearings on such petitions will be held by the district court on at least five days' notice to the parties.

No other extension of time shall be allowed."

New Magistrate Crim. 41 reads:

"(i) Disposition Time Limitations. The district court shall try the appeal within six months after the filing of the notice of appeal. Any appeal pending in the district court six months after the filing of the notice of appeal without disposition shall be dismissed and the cause remanded to the magistrate court for enforcement of its judgment.

"(j) Extension of Time. The time limits in paragraph (i) of this rule may be extended one time for a period not exceeding ninety days upon a showing of good cause to a justice of the Supreme Court. The party seeking an extension of time beyond the six months appeal limit of paragraph (i) of this rule shall, within said six month period, file with the clerk of the Supreme Court a verified petition for extension concisely stating the facts petitioner deems to constitute good cause and forthwith serve a copy thereof on the opposing party. No other extension of time shall be allowed."

Criminal Procedure 37 reads:

"(b) Trial. The trial shall be commenced within six months after the date of filing in the district court of the complaint, information, indictment, or notice of appeal from the magistrate court or the date of arrest, whichever is later. In the event of a new trial, mistrial or reversal of a conviction on appeal, a subsequent trial shall be commenced within six months after the date of the order granting the new trial, the declaration of the mistrial or the mandate of the appellate court.

"(c) Extension of Time. The time for commencement of trial as specified in the preceding paragraph may be extended only by the Supreme Court of New Mexico, a Justice thereof, or a Judge designated by the Supreme Court, for good cause shown. The party seeking an extension of time beyond the six-month period shall, within said six-month period, file with the clerk of the Supreme Court a verified petition for extension concisely stating the facts petitioner deems to constitute good cause and forthwith serve a copy thereof on opposing counsel. Hearings on such petitions will be held in Santa Fe, or such other place as may be designated by the Supreme Court, on five days notice to the parties.

"(d) Effect of Noncompliance With Time Limits. In event the trial of any person described in paragraph (b) of this rule does not commence within the time therein specified, or within the period of any extension granted as provided in this rule, the information or indictment filed against such person shall be dismissed with prejudice, unless the Supreme Court finds that the defendant is responsible for failure to comply with the time limits. If the Supreme Court finds that the defendant is responsible for the failure to comply with the time limits, the defendant not in custody may have his release revoked unless there is good cause shown for the failure to comply."

Which of the Two Magistrate Rules is Applicable?

The difference between old Magistrate Crim. 40(h) and new Magistrate Crim. 41(i) is substantial. Where time requirements for hearing the appeal in the district court are not met, instead of dismissal of the complaint with prejudice as provided under the old rule, the appeal is dismissed and the magistrate court judgment is enforced under the new rule.

The appeal in this case was pending at the time the amendments of October 1, 1976 became effective. N.M.Const., Art. IV, § 34 provides that no act of the Legislature shall change the rules of procedure in any pending case. This constitutional provision applies to court rules as well as legislation. Marquez v. Wylie, 78 N.M. 544, 434 P.2d 69 (1967).

Old Magistrate Crim. 40 is the magistrate court rule applicable to this case; new Magistrate Crim. 41 is not applicable.

Dismissal Under the Applicable Magistrate Rule

Old Magistrate Crim. 40 provides for dismissal of the complaint with prejudice if the appeal is pending in the district court ninety days after the filing of the notice of appeal. The ninety-day period expired on November 4, 1976. Because the appeal was pending on that day, defendant was entitled to a dismissal after November 4, 1976 unless (1) the avoidance provisions in the magistrate rule applied, or (2) the magistrate rule was not to be applied because of Criminal Procedure Rule 37.

One avoidance provision, appearing in old Magistrate Crim. 40(h), is that dismissal is not required if "the defendant was responsible for the failure of the district court to complete the disposition of the proceeding".

There is nothing in the appellate record showing defendant was responsible for a failure to complete the appeal within ninety days. An order of the district court, filed November 8, 1976, states that the case came on for trial, that the State appeared and was ready for trial, and that neither defendant nor his attorney appeared because defendant was in the hospital. The order continues the cause and declares "that Rule 37 (Crim. Procedure 37) be and hereby is tolled during the period of this continuance." Neither the order filed November 8, 1976 nor anything else in the record shows that the case came on for trial within the ninety-day period or that defendant's hospitalization caused a delay within the ninety-day period. Delay by defendant does not provide a basis for avoiding the ninety-day requirement.

A second avoidance provision, appearing in old Magistrate Crim. 40(i), authorizes a "one time" extension of the time limits appearing in old Magistrate Crim. 40(h). We do not consider whether the district court order of November 8, 1976 should be considered as an attempted extension because, even if so intended, it was not effective to extend the time limit. The extension authorized by old Magistrate Crim. 40(i) must have been sought within the original ninety-day period. This was not done. The extension provision does not provide a basis for avoiding the ninety-day requirement.

The showing in this appeal is that defendant was entitled to a dismissal when he moved to dismiss at the beginning of the trial on March 3, 1977. Although defendant moved to dismiss, he did not rely on old Magistrate Crim. 40; he claimed he was entitled to dismissal under Criminal Procedure 37. Under the liberal approach to raising issues adopted in Albertson v. State,89 N.M. 499, 554 P.2d 661 (1976) we hold the motion to dismiss sufficiently raised the issue of dismissal under old Magistrate Crim. 40.

The question then is whether old Magistrate Crim. 40 was not to be applied because of Criminal Procedure 37.

Applicability of Criminal Procedure 37

Generally speaking, Criminal Procedure 37(b) provides for the commencement of trials within six months from the filing in the district court of the notice of appeal from the magistrate court.

Again, generally speaking, Criminal Procedure 37(d) provides for dismissal with prejudice if the trial is not commenced within the six-month period "unless the Supreme Court finds that the defendant is responsible for failure to comply with the time limits.

There are two items involving delay be the defendant. Both items occurred after the ninety-day provision of old Magistrate Crim. 40 had elapsed; both, however, occurred within six months of the date the notice of appeal was filed in the district court. One item is a motion for continuance filed on December 14, 1976 in which defendant expressed a willingness to execute "any necessary waiver regarding any delay...