State v. Katrina G.

Decision Date05 March 2007
Docket NumberNo. 25,781.,25,781.
Citation2007 NMCA 048,157 P.3d 66
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. KATRINA G., Child-Appellant.
CourtCourt of Appeals of New Mexico

Gary K. King, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

Baber, Silva & Grano Law Firm, David R. Silva, Las Vegas, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} The question presented is whether the children's court retains jurisdiction to hear a timely petition to revoke a child's probation after the probation period expires. We hold that Rule 10-226 NMRA governs the time limits within which the children's court must hear a petition to revoke probation. Concluding that the hearing in this case took place within the applicable time limit, we affirm.

BACKGROUND

{2} On May 10, 2004, the children's court attorney in San Miguel County filed a petition against Katrina G. (Child) alleging the offense of unlawful carrying of a deadly weapon on school premises contrary to NMSA 1978, § 30-7-2.1 (1994). On September 1, 2004, the Child entered into a plea agreement in which she admitted to the offense and agreed to the entry of a consent decree. The children's court approved the consent decree and placed the Child on supervised probation for a six-month period beginning September 1, 2004, and ending March 1, 2005.

{3} On February 21, 2005, the children's court attorney filed a petition styled as a "petition to revoke probation" pursuant to NMSA 1978, § 32A-2-24 (1993). Although neither party raised the issue, it appears that the children's court attorney actually intended to file a petition to revoke the consent decree under NMSA 1978, § 32A-2-22(D) (2005). The distinction between the two sections is that Section 32A-2-24 governs petitions to revoke a probation incident to an adjudication of delinquency, whereas Section 32A-2-22(D) addresses petitions to revoke a consent decree, which also may have an associated probation period. Compare Section 32A-2-24(A) ("A child on probation incident to an adjudication as a delinquent child . . . may be proceeded against in a probation revocation proceeding.") (emphasis added) with Section 32A-2-22(D) ("If . . . the child allegedly fails to fulfill the terms of the [consent] decree, the children's court attorney may file a petition to revoke the consent decree.") (emphasis added); see also In re Crystal L., 2002-NMCA-063, ¶ 8, 132 N.M. 349, 48 P.3d 87 ("Consent decrees exist as an alternative to adjudication of delinquency in the juvenile justice system."). Thus, the proper procedure for revoking a child's probation incident to a consent decree is to petition for revocation of the consent decree itself. The State's confusion is understandable, however, since the procedure for revoking either type of juvenile probation is the same. See Section 32A-2-22(D) ("Proceedings on the petition [to revoke a consent decree] shall be conducted in the same manner as proceedings on petitions to revoke probation."). Moreover, despite the misleading title of the petition and the State's initial citation to Section 32A-2-24, the parties and the children's court proceeded as if the petition were a petition to revoke the consent decree under Section 32A-2-22(D). We therefore find no error in this regard and treat the petition as a petition to revoke the consent decree — and its associated probation — under Section 32-A-2-22(D). Accordingly, we refer to the petition throughout this opinion as the "petition to revoke the consent decree."

{4} The petition to revoke the consent decree contained allegations that the Child violated the consent decree and the conditions of her probation in that, on or about the dates of January 13 and 14, 2005, she: (1) was charged with the crime of involuntary manslaughter; (2) possessed a handgun; and (3) admitted that she consumed alcohol and/or controlled substances. No hearing on the petition to revoke the consent decree had taken place by the time the Child's probation ended on March 1, 2005. Several days later, Child filed a motion to dismiss the petition on the grounds that the children's court no longer had jurisdiction over the matter because the probation period had expired. The children's court held a hearing on both the Child's motion to dismiss and the State's petition to revoke the consent decree on April 7, 2005.

{5} At the hearing, counsel for the Child argued that, under this Court's decision in State v. Lara, 2000-NMCA-073, 129 N.M. 391, 9 P.3d 74, a hearing on a petition to revoke a consent decree must take place before the associated probation period expires, otherwise the district court lacks jurisdiction to hear the matter. The children's court disagreed and denied Child's motion to dismiss. The court reasoned that the Children's Code, unlike NMSA 1978, § 31-20-8 (1977), which was the statute at issue in Lara, does not require that the hearing on a petition to revoke a consent decree take place before the expiration of the associated probation period. The children's court entered its written order denying Child's motion to dismiss on April 15, 2005, and Child timely appealed from that order. The children's court subsequently entered a written order revoking Child's consent decree.

{6} The sole issue Child advances on appeal is whether the children's court had jurisdiction to hear the State's petition to revoke the consent decree after the Child's probation period had expired.

DISCUSSION

The Children's Court May Hear a Timely Filed Petition to Revoke a Consent Decree After the Probation Period Expires.

{7} Whether the children's court has jurisdiction to hear a petition to revoke a consent decree after the associated probation period expires is a question of law that we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) ("We review questions of law de novo."). Section 32A-2-22(D) sets forth the conditions under which the children's court attorney may file a petition to revoke a consent decree and reads as follows:

If either prior to discharge by probation services or expiration of the consent decree the child allegedly fails to fulfill the terms of the decree, the children's court attorney may file a petition to revoke the consent decree. Proceedings on the petition shall be conducted in the same manner as proceedings on petitions to revoke probation [under Section 32A-2-24]. If the child is found to have violated the terms of the consent decree, the court may:

(1) extend the period of the consent decree; or

(2) make any other disposition that would have been appropriate in the original proceeding.

Rule 10-225(C) NMRA similarly states:

C. Revocation of consent decree. If, prior to the expiration of the consent decree, the child allegedly fails to fulfill the terms of the decree, the children's court attorney may file a petition to revoke the consent decree. Proceedings on the petition shall be conducted in the same manner as proceedings on petitions to revoke probation [under Rule 10-232 NMRA].

The committee commentary to Rule 10-225 explains that, "[s]ince a consent decree is essentially a negotiated probationary period, the original committee felt that the proceedings to revoke the consent decree should follow the procedure to revoke probation contained in Rule 10-232 NMRA." Id. comm. cmt. Therefore, both Section 32A-2-22 and Rule 10-225 require that, in order to revoke a child's probation incident to a consent decree, the children's court attorney must follow the procedures to revoke probation contained in Section 32A-2-24 and Rule 10-232, respectively.

{8} The State may file a petition to revoke probation "any time prior to expiration of the period of probation." Rule 10-232(C)(4). Because probation revocation proceedings "shall be conducted in the same manner as proceedings on petitions alleging delinquency," Rule 10-232(C), the children's court must hear the petition to revoke probation within the time limits set forth in Rule 10-226. Accord NMSA 1978, § 32A-2-15 (1993) ("The adjudicatory hearing in a delinquency proceeding shall be held in accordance with the time limits set forth in the Children's Court Rules and Forms."); see also State v. Doe, 93 N.M. 621, 625, 603 P.2d 731, 735 (Ct.App.1979) (stating that the time limit for petitions alleging delinquency applies to probation revocation proceedings by operation of Rule 51(a), the predecessor to Rule 10-232(C)).

{9} Child does not allege that the State failed to follow the procedures set forth in Section 32A-2-24 or Rule 10-232 in filing its petition to revoke the consent decree. To the contrary, Child concedes that the State timely filed the petition. Instead, Child's argument focuses on whether Subsection E of Section 32A-2-22 required the children's court to hear the petition to revoke the consent decree before the associated probation period expired. Subsection E states, in relevant part:

A child who is discharged by probation services or who completes a period under supervision without reinstatement of the original delinquency petition shall not again be proceeded against in any court for the same offense alleged in the petition or an offense based upon the same conduct and the original petition shall be dismissed with prejudice.

Section 32A-2-22(E). Child's argument is that she completed the period under supervision without reinstatement of the original delinquency petition because reinstatement could only occur after a hearing and a finding that Child violated the conditions of her probation. Child further points to our decision in Lara as support for her argument that the children's court could only have heard the petition to revoke the consent decree before the associated probation period expired. Thus, according to Child, the children's court was deprived of jurisdiction to hear the petition once the probation period expired on March 1, 2005. Finally, Child asserts that, even if the children's court...

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    • United States
    • Court of Appeals of New Mexico
    • January 27, 2011
    ...that the Legislature knows how to include language in a statute if it so desires. Cf. State v. Katrina G., 2007–NMCA–048, ¶ 17, 141 N.M. 501, 157 P.3d 66 (stating that, if the Legislature had wanted to draft a children's code statute with the same expiration of jurisdiction as seen in the a......
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    ...in Section 40–13–6(D), (F), and we will not read such an element into the statute. See State v. Katrina G., 2007–NMCA–048, ¶ 17, 141 N.M. 501, 157 P.3d 66 (reasoning that when the Legislature knew how to include something, and did not, we assume the choice was deliberate); see also Smile, 2......
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    • August 9, 2010
    ...the defendant's probation period, after which point it loses jurisdiction to do so. See State v. Katrina G., 2007-NMCA-048, ¶ 17, 141 N.M. 501, 157 P.3d 66 (“Section 31-20-8 clearly evinces the [L]egislature's intent to require a hearing before the expiration of the probation period.”). Had......
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