State v. Lucero

• Decision Date: 15 September 1992
• Docket Number: No. 13546,13546
• Citation: 114 N.M. 460,840 P.2d 607,1992 NMCA 103
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Theresa LUCERO, Defendant-Appellant.

Page 607

840 P.2d 607

114 N.M. 460

STATE of New Mexico, Plaintiff-Appellee, v. Theresa LUCERO, Defendant-Appellant.

No. 13546.

Court of Appeals of New Mexico.

Sept. 15, 1992.

[114 N.M. 461] Tom Udall, Atty. Gen., Joel K. Jacobsen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Sophie Cooper, Asst. Public Defender, Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

The issue we confront in this case is whether the metropolitan court six-month rule begins to run anew, as does the district court six-month rule, when a case is remanded following a successful state's appeal. We hold that it does not.

To put the issue in proper factual perspective, we state the facts chronologically. The state filed its original complaint against defendant on February 6, 1990. On March 12, the metropolitan court scheduled defendant for trial on June 20. On March 16, defendant filed a notice of excusal of the metropolitan court judge. See SCRA 1986, 7-106(A) (Repl.1990) (effective until September 1, 1990). The court wrote "denied" on the notice because it was untimely, but on May 9 the court recused itself. The court reset the trial date, but the new metropolitan court judge for this case had a scheduling conflict. The next trial date was August 1, five days short of six months from the time that the state filed charges against defendant. On the day of trial, defendant sought and received a continuance until September 26. The court issued another continuance and scheduled the case for trial on October 1, the last day of the six-month limit if the only time chargeable to defendant was that due to her requested continuance.

In the meantime, on September 27, defendant filed a motion to dismiss for "pre-indictment [sic] delay." The metropolitan court granted the motion on the date of trial, October 1. The state appealed, and the district court, applying an appellate standard of review, affirmed. Upon a first appeal to this court, we reversed in a memorandum opinion, instructing the district court to engage in de novo review. See State v. Hicks, 105 N.M. 286, 731 P.2d 982 (Ct.App.1986).

On remand, the district court engaged in de novo review and reversed its prior position. It held that the metropolitan court erred in dismissing the charges; accordingly, it reversed with directions to reinstate the complaint on the docket. As part of its order reversing, the district court ruled that "[a]fter a successful appeal to the District Court from a dismissal in Metropolitan Court, the State receives a new six-month rule on remand back for trial." We granted interlocutory appeal to determine whether the district court was correct in so ruling.

We first address whether there should be a new six-month time limit and hold that there should not be. We next address what delay should be chargeable to defendant. We address the second issue because, according to defendant, the appellate delay and the delay due to her request for a continuance are to be counted against her; all other delay is chargeable to the state. Because the original metropolitan court case was dismissed on the final day of the six-month limit, defendant contends that, upon issuance of our mandate, there will be only one day left on the six-month limit in which to try her.

We apply the same canons of construction to supreme court rules of procedure as we apply to statutes. State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct.App.1989). Applicable rules of construction provide that if the words are plain and unambiguous, there is no room for construction. Johnson v. Francke, 105 N.M. 564, 734 P.2d 804 (Ct.App.1987). Courts will not add words to the statute, particularly if the statute makes sense as written. See Burroughs v. Board of County Comm'rs, 88 N.M. 303, 540 P.2d 233 (1975). When there are provisions in analogous statutes that a party contends should be present in the statute at issue in the case, we utilize the process of negative inference to reason that the absence of such provisions in the statute at issue is intentional. Patterson v. Globe Am. Casualty Co., 101 N.M. 541, 685 P.2d 396 (Ct.App.1984).

The metropolitan court six-month rule, SCRA 1986, 7-506(B) (Repl.1990), states:

Any criminal charge within metropolitan court trial jurisdiction which is pending for six (6) months from the date of the arrest of the defendant or the filing of a complaint or citation against the defendant, whichever occurs later, without commencement of a trial by the metropolitan court shall be dismissed with prejudice unless, after a hearing, the judge finds that the defendant was responsible for the failure of the court to commence trial. If a complaint is dismissed pursuant to this paragraph, a criminal charge for the same offense shall not thereafter be filed in any court.

In contrast, the applicable district court rule states: "The trial of a criminal case * * * shall be commenced six (6) months after whichever of the following events occurs latest: * * * (4) in the event of an appeal, * * * the date the mandate or order is filed in the district court disposing of the appeal." SCRA 1986, 5-604(B).

Measured by the standards recited above, we are compelled to hold that there is no provision in Rule 7-506(B) to commence a new six-month limit under the circumstances of this case. The simple fact is that the rule does not contain any language allowing a new six-month limit. See State v. Valdez, 109 N.M. 759, 762, 790 P.2d 1040, 1043 (Ct.App.1990) (the defendant's argument was that the similarly worded magistrate six-month rule has no provision for restarting a six-month period after an appeal). Nor is the rule ambiguous. The fact that other rules do contain provisions for new six-month limits upon the happening of certain events, e.g., Rule 5-604, shows that our supreme court is cognizant of how to write such a provision if it so desires.

In this connection, we are not persuaded by the state's reliance on State v. Sanchez, 109 N.M. 313, 785 P.2d 224 (1989). The state's desire to add another analogous circumstance to the list of circumstances providing for a new six-month limit in the district court rule is vastly different from adding a new six-month limit to a completely different rule. Accordingly, the district court was in error in ordering a completely new six-month limit.

This does not mean, however, that we necessarily accept defendant's contention that there is only one day left on the metropolitan court six-month limit. Rule 7-506(B) provides that charges shall be dismissed if trial is not commenced within six months, unless "after a hearing, the judge finds that the defendant was responsible for the failure of the court to commence trial." Applying the rule as written, we conclude that the exact amount of time left is for the metropolitan court judge in the first instance to determine. Moreover, there are facts to be found before the determination can be made.

We believe that it is for the metropolitan court to make the determination because the rule provides that the metropolitan judge is to hold a hearing and either find or not find that defendant is responsible for the delay. In addition to the time during the continuance defendant sought and the time after defendant's motion was granted and until jurisdiction is revested in the metropolitan court for which defendant agrees she is responsible, we believe that a judge could rule that other times are also chargeable to defendant if her actions resulted in the failure to commence trial.

We specifically refer to three time periods. The first is after defendant filed her late disqualification of the judge and the judge later recused himself, causing delay for the assignment of a new judge who had scheduling conflicts. These facts alone would not necessarily show time that is chargeable to defendant without more. For example, in State v. Bishop, 108 N.M. 105, 766 P.2d 1339 (Ct.App.1988), the state appeared to concede that the defendant was not responsible for delay caused by recusals. However, we could conceive of situations in which the facts underlying the disqualification would be what caused the judge to recuse. In such a situation, had defendant filed a timely disqualification, the judge might have recused at a much earlier time. Therefore, depending on the facts, defendant's untimely disqualification could be found to be a reason defendant would be responsible for the failure to timely commence trial. See id. at 109, 766 P.2d at 1343 (determinative factor is reason for delay).

The second time period is the time between the filing of defendant's motion to dismiss and the granting of that motion. Defendant appears to exclude this time because the motion was filed during a continuance not at her request. The fact that the continuance was not at her request could justify a reasonable fact-finder to conclude that she was not responsible for the failure to commence trial during the time period of a continuance already granted. On the other hand, a reasonable fact-finder could also conclude that from the time defendant filed her motion until the time it was finally resolved was time...