State v. Littlefield

• Decision Date: 03 July 2008
• Docket Number: No. 27,504.,27,504.
• Citation: 190 P.3d 1150,2008 NMCA 109
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Phillip LITTLEFIELD, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

190 P.3d 1150

2008 NMCA 109

STATE of New Mexico, Plaintiff-Appellee, v. Phillip LITTLEFIELD, Defendant-Appellant.

No. 27,504.

Court of Appeals of New Mexico.

July 3, 2008.

Certiorari Granted, No. 31,245, August 13, 2008.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Jason C. Gordon, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant, who was incarcerated pending trial, was granted a furlough to seek medical treatment. He absconded, a warrant was issued for his arrest, the trial date was vacated, and he was arrested on the warrant four days prior to the vacated trial setting and forty days prior to the expiration of an extension of the six-month rule that had been granted by the Supreme Court. After the extension expired, Defendant filed a motion to dismiss, which the district court denied. Defendant reserved this issue pursuant to a conditional plea. We affirm the district court's interpretation of Rule 5-604(B)(5) NMRA as it applies to the facts of this case, holding that the six-month limitation began anew when Defendant failed to appear at the jail as required by his furlough order and when he was arrested on the warrant for that failure to appear.

FACTS AND PROCEDURAL BACKGROUND

{2} On March 20, 2006, the New Mexico Supreme Court granted an extension of the six-month rule until September 27, 2006, and Defendant's trial was set for August 22, 2006. While incarcerated, Defendant was attacked and beaten, suffering serious injuries, including a broken jaw. He was granted a number of unescorted furloughs from jail to attend to his medical needs. The first furlough was granted on May 12 for May 15, and the last furlough was granted on June 14 for a medical appointment on June 22. On June 21, the district court noticed the trial for August 22. Defendant failed to return from the June 22 appointment, and a bench warrant was ordered by the district court on August 3, 2006, for "fail[ing] to return to [jail] as directed" in the furlough order. Defendant was arrested on the warrant on August 18, 2006. Neither the prosecutor nor defense counsel was aware that Defendant had been arrested at that time. Defendant was arraigned on the warrant on August 28, and without any discussion as to trial deadlines, a trial date was set for January 2007 at that hearing.

{3} After the Supreme Court's extension ran out on September 27, Defendant filed a motion to dismiss the case for failing to comply with Rule 5-604. Defendant maintains that because he was arrested four days prior to his trial date, there was no need to vacate the trial, and because he did not fail to appear at any hearing or proceeding, restarting the rule was unjustified. Defense counsel represented at the hearing on the motion to dismiss that his office had contacted the district court on August 7 and learned that because "the bench warrant was outstanding," the trial date was "taken off the docket." The district court did not agree with Defendant's position as to the interpretation of the rule in this situation. In a letter opinion, it ruled that State v. Lucas, 110 N.M. 272, 274, 794 P.2d 1201, 1203 (Ct.App. 1990), encourages a common-sense, as opposed to a technical, reading of the rule, and therefore Defendant's acting in such a way as to require the issuance of a bench warrant for his arrest, which caused the vacation of the trial date, was sufficient to begin the six-month rule anew pursuant to Rule 5-604(B)(5).

DISCUSSION

{4} Rule 5-604(B)(5) states:

The trial of a criminal case or habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest:

....

(5) if the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or surrender of the defendant[.]

We review the application of a rule by a district court de novo. State v. Donahoo, 2006-NMCA-147, ¶ 2, 140 N.M. 788, 149 P.3d 104.

{5} The issue in this case is whether the "failure to appear" language in Rule 5-604(B)(5) is intended to mean only a failure to appear contrary to NMSA 1978, § 31-3-9 (1999), or whether the rule is intended to encompass other failures to appear as well. Defendant argues that there is no provision in the rule for failure to return from a furlough and that failure to appear under Rule 5-604(B)(5) occurs only when a defendant fails to appear before a judicial officer at a scheduled hearing. Section 31-3-9 is entitled "Failure to appear; penalty" and provides that a person "who willfully fails to appear before any court or judicial officer as required" is guilty of a criminal offense.

{6} The State contends that there is a statute, in addition to Section 31-3-9, which contains language concerning failure to appear, and that the Supreme Court's intent in Rule 5-604(B)(5) was to reference that statute also. That statute is NMSA 1978, § 31-3-2 (1993), and it is entitled "Failure to appear; forfeiture of bail bonds." It provides in part:

A. Whenever a person fails to appear at the time and place fixed by the terms of recognizance, the court may issue a warrant for his arrest.

B. Whenever a person fails to appear at the time and place fixed by the terms of his bail bond, the court:

(1) may issue a warrant for his arrest; and

(2) may declare a forfeiture of the bail.

The district court's order for the warrant was for failing to return to the jail as ordered in the furlough order, and its warrant was for failing to comply with conditions of release.

{7} We need not decide in this case whether the State is correct that any time a warrant is issued for a failure to appear at a fixed time and place pursuant Section 31-3-2(A), that circumstance automatically invokes the provisions of Rule 5-604(B)(5), and therefore we need not address the dissent's explanation of the distinctions between failure to appear for court proceedings and failure to abide by conditions of release. In fact, in State v. Hicks, 2002-NMCA-038, ¶¶ 10, 13, 19, 132 N.M. 68, 43 P.3d 1078, we injected some uncertainty into the law governing failure to appear in that we noted, in that criminal prosecution for failure to appear contrary to Section 31-3-9, that the defendant conceded that his failure to post bond might have violated Section 31-3-2(A). Hicks, 2002-NMCA-038, ¶ 10, 132 N.M. 68, 43 P.3d 1078. Yet, we also pointed out that "recognizance" has a particular meaning under the Criminal Procedure Act, NMSA 1978, §§ 31-1-1 to -3-9 (1972, as amended through 1999), which includes forfeiture of bail. Hicks, 2002-NMCA-038, ¶ 13, 132 N.M. 68, 43 P.3d 1078. As an aside, we note that "recognizance" also has a colloquial meaning and is sometimes used to refer to the situation in which a defendant is released from jail on furlough, as in this case. See State v. Hill, 117 N.M. 807, 807-08, 877 P.2d 1110, 1110-11 (Ct.App.1994). Finally, we concluded in Hicks that a defendant might be guilty of a criminal failure to appear under Section 31-3-9 if the order for the defendant's appearance was sufficiently specific as to time, place, and requirement that the appearance be in person. Hicks, 2002-NMCA-038, ¶ 19, 132 N.M. 68, 43 P.3d 1078.

{8} Despite this commentary, the actual holding of the Hicks case was that an order for the defendant to post bond by a certain date did not require an appearance such that the failure to post bond could be punished under Section 31-3-9 as failure to appear. Hicks, 2002-NMCA-038, ¶ 20, 132 N.M. 68, 43 P.3d 1078. The underlying bases of the Hicks case were the familiar principles that penal statutes must be strictly construed, that the rule of lenity would be applied in cases of ambiguity, and that "courts will not extend punishment to cases not plainly within the [statutory] language used." Id. ¶¶ 11, 19, 20 (internal quotation marks and citations omitted).

{9} Based on the Hicks case, we acknowledge that it is uncertain that either Section 31-3-2 or 31-3-9 applies to extend the six-month rule in Defendant's case, although arguments could be made that they do. However, the principles animating the Hicks decision and governing penal statutes simply do not apply to the interpretation of the six-month rule. The purpose of Rule 5-604 is "to assure the prompt trial and disposition of criminal cases, not to effect dismissals by such a technical application." State v. Flores, 99 N.M. 44, 46, 653 P.2d 875, 877 (1982) (decided under the former rule, which provided that the trial was to commence within six months of "the date of arrest of the defendant after conditions of release have been revoked for failure to appear as required" (internal quotation marks and citation omitted)).

{10} The "technical application" that was being discussed in Flores was the situation where a defendant was not arrested after conditions of release had been revoked because he had no conditions of release; he was incarcerated and was erroneously released from that incarceration. Id. at 45, 653 P.2d at 876. Therefore, the words of the rule did not technically apply to him, but the Supreme Court nonetheless held that the six-month rule would be restarted as of the date the defendant was arrested on the bench warrant that was issued for his failure to appear at a pretrial conference. Id. at 45, 46, 653 P.2d at 876, 877.

{11} This Court faced a similar situation, in which the precise language of the rule did not cover the facts, in State v. Jaramillo, 2004-NMCA-041, 135 N.M. 322, 88 P.3d 264. That case involved two co-defendants, whose first trials ended in mistrials and whose cases were not effectively severed when one of them took an interlocutory appeal on grounds equally applicable to the other. Id. ¶¶ 2-3. The defendant argued that because the cases were not severed and because the defendant did not appeal, the six-month rule ran from the declaration of the...