State v. Michael R.

• Decision Date: 06 October 1988
• Docket Number: No. 10807,10807
• Citation: 765 P.2d 767,107 N.M. 794,1988 NMCA 87
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. MICHAEL R., A Child, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 767

765 P.2d 767

107 N.M. 794

STATE of New Mexico, Plaintiff-Appellee, v.MICHAEL R., A Child, Defendant-Appellant.

No. 10807.

Court of Appeals of New Mexico.

Oct. 6, 1988.

Certiorari Denied Nov. 9, 1988.

[107 N.M. 795] Hal Stratton, Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Lynne Fagan, Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

ALARID, Judge.

This is a Children's Court case in which the child appeals from the children's court's judgment and disposition finding him to be a delinquent child and placing him on probation.The calendar notice proposed summary affirmance.The child filed a timely memorandum in opposition to proposed summary affirmance.Having found his memorandum unpersuasive, we affirm.

The sole issue raised is whether the children's court could place the child on probation without first entering a finding that he is in need of care and rehabilitation.The child contends that a finding that the child is in need of care and rehabilitation is necessary in order to place a child on probation.In his docketing statement, he cited several cases decided by this court, which have held that such a finding was required in adjudicating proceedings on a petition alleging delinquency.These cases were decided under prior law and, thus, are distinguishable from the present case.In holding that the adjudicatory proceedings on a petition alleging delinquency involve two aspects, (1) whether the child committed the delinquent act and (2) whether the child is in need of care and rehabilitation, this court relied, in part, on the statute in effect at the time the cases were decided.The statute defined a delinquent child as a child who has committed a delinquent act and who is in need of care and rehabilitation.State v. Doe, 95 N.M. 90, 619 P.2d 194(Ct.App.1980);State v. Doe, 93 N.M. 206, 598 P.2d 1166(Ct.App.1979);State v. Doe, 90 N.M. 249, 561 P.2d 948(Ct.App.1977).

The applicable statute in the present case, NMSA 1978, Section 32-1-3(P)(Cum.Supp.1988)(applicable until July 1, 1989), defines a delinquent child as "a child who has committed a delinquent act."The children's court found that the child committed the delinquent act alleged in the petition.The child does not challenge this finding.

NMSA 1978, Section 32-1-31(E)(Repl.1986), provides that "[i]f the court finds that a child alleged to be delinquent or in need of supervision is not in need of care or rehabilitation, it may dismiss the petition and order the child released from any detention or legal custody imposed in the proceedings."It does not require that the children's court dismiss the petition, as did the statute in effect at the time the above cases were decided.Rather, it leaves the children's court with discretion in determining whether or not to dismiss the petition.Section 32-1-31(E) further provides that "[n]o child shall be placed in the custody of the department of corrections after adjudication of his case without a finding of need for care and rehabilitation."There is no such requirement for placing a child on probation.

Given these changes in the relevant statutes, we conclude that the legislature has changed the law on which our prior cases were based.As a result, the children's court can now place a delinquent child on probation without finding that the child is in need of care and rehabilitation.

In his memorandum in opposition, the child concedes that the statute does not specifically require that a finding of the need for care and rehabilitation be made for placing the child on probation.Where the meaning of the statutory language is plain, and where the words used by the legislature are free from ambiguity, there is no basis for interpreting the statute.State v. Mobbley, 98 N.M. 557, 650 P.2d 841...