State v. Howell
| Decision Date | 10 February 1976 |
| Docket Number | No. 2068,2068 |
| Citation | 1976 NMCA 20,546 P.2d 858,89 N.M. 10 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. James Robert HOWELL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his conviction of aggravated assault § 40A--3--2, N.M.S.A.1953 (2d Repl.Vol. 6, 1972) and sodomy § 40A--9--6, N.M.S.A.1953 (2d Repl.Vol. 6, 1972), subsequently repealed by Laws 1975, ch. 109 § 8, after a transfer pursuant to § 13--14--27, N.M.S.A.1953 (Repl.Vol. 3, 1968, Supp.1973) asserting two grounds for reversal: (1) that the trial court should have granted his motion to dismiss pursuant to Rule 37 of R.Cr.P. § 41--23--37(b), N.M.S.A.1953 (2d Repl.Vol. 6, 1972, Supp.1975) and (2) that the sodomy statute is unconstitutional.
The following is a chronological sequence of events leading up to the trial:
On September 21, 1974, defendant was arrested for crimes that are in issue in this appeal. At that time the defendant was sixteen years old. On September 24, 1974, a Children's Court Petition was filed against defendant. On the same day an order to continue defendant's detention and a motion to transfer the defendant to the district court for prosecution were filed. The hearing on the motion to transfer was set for October 7, 1974. The court granted the motion to transfer on November 11, 1974. On November 15, 1974, an information was filed against the defendant in the district court. On March 31, 1975, the defendant moved to dismiss with prejudice under Rule 37 because more than six-months had elapsed since the original petition had been filed in Children's Court. The motion was denied. On April 1, 1975, the defendant filed a Petition for Writ of Prohibition in the State Supreme Court on the same grounds as the above motion. The petition for writ was denied (S.Ct.No. 10423). Defendant's trial was held on April 9, 1975.
This issue raises two questions: (1) whether the Supreme Court's denial of the Writ of Prohibition precludes review of the trial court's denial of the motion to dismiss and (2) whether the six-month rule should run from the time of filing of the Children's Court Petition.
Does the Supreme Court's denial of a Writ of Prohibition preclude our review of the trial court's denial of defendant's motion to dismiss? Our answer is in the negative. The situation here is different than those where we have been asked to review a Supreme Court Order granting an extension pursuant to Rule 37. See State v. Sedillo, 86 N.M. 382, 524 P.2d 998 (Ct.App.1974). State ex rel. Townsend v. Court of Appeals, 78 N.M. 71, 428 P.2d 473 (1967), indicated that a denial of a Writ of Prohibition may be for a variety of reasons, one of which would be that there is not an absence of jurisdiction. Thus, the denial of a Writ of Prohibition has no specific finality.
We are confronted with the specific issue, under the foregoing sequence of facts, of when does the time start to run for a determination of the six-months pursuant to Rule 37, supra.
Section 13--14--30, N.M.S.A.1953 (Repl.Vol. 3, 1968, Supp.1973) states in part that a judgment in any proceedings on a petition under the Children's Code shall not be deemed to be a conviction of a crime. It would seem then to follow that the period of time spent prior to the actual...
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State, Dept. of Environmental Regulation v. Falls Chase Special Taxing Dist., SS-439
...of prohibition do not foreclose us from considering the jurisdictional issue on this appeal. (emphasis supplied)See State v. Howell, 89 N.M. 10, 546 P.2d 858, 859 (1976):Does the Supreme Court's denial of a Writ of Prohibition preclude our review of the trial court's denial of defendant's m......
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...Pleas, 42 Ohio St.2d 433, 329 N.E.2d 680 (1975); Commonwealth v. Bell, 245 Pa.Super. 164, 369 A.2d 345 (1977); Accord, State v. Howell, 89 N.M. 10, 546 P.2d 858 (1976); State v. Young, 44 Ohio App.2d 387, 339 N.E.2d 668 (1975); Cf. State v. Hunter, 342 So.2d 81 (Fla.1977); State v. Benton, ......
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