State v. Valdez, 11392
| Decision Date | 13 February 1990 |
| Docket Number | No. 11392,11392 |
| Citation | 790 P.2d 1040,1990 NMCA 18,109 N.M. 759 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Louis J. VALDEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his convictions of driving while intoxicated (DWI), driving with a revoked or suspended license, and reckless driving. He contends that the charges should have been dismissed because they were not timely brought to trial. We affirm the convictions.
The convictions challenged on appeal are for offenses committed on May 27, 1988. The state initially charged defendant with the three offenses in a criminal complaint filed on May 31, 1988, in magistrate court. On September 6, 1988, the state filed a second criminal complaint against defendant for DWI, careless driving, unlawful use of a driver's license, and no proof of insurance, allegedly committed on September 4. Shortly thereafter, on September 12, the state filed two criminal complaints against defendant in district court. The first complaint, CR-88-245, contains the same charges as in the September 6 magistrate court complaint; the other district court complaint, CR-88-246, which is the matter being appealed, charged the same offenses alleged in the May 31 magistrate court complaint. The state moved to consolidate these cases with a third case, CR-88-129, defendant's de novo appeal from a magistrate court conviction for DWI.
The district court remanded CR-88-245 and CR-88-246 to magistrate court on October 14, 1988. On October 17 the state filed with the New Mexico Supreme Court a petition for alternative writ of prohibition or alternative writ of superintending control, seeking to overturn the district court's remand of the cases to magistrate court. On October 25 the supreme court dismissed the petition because the parties had settled the matter. On October 28 the district court withdrew its remand order. The prosecution again moved to join causes CR-88-245 and CR-88-246; joinder was granted on November 28, 1988. The charges in CR-88-245 and CR-88-246 were tried to the district court on February 16, 1989. Immediately before trial, defense counsel orally moved to dismiss the charges in CR-88-246 for failure to proceed to trial within six months of the filing of identical charges in magistrate court on May 31, 1988. The court denied the motion and convicted defendant of the charges.
For each of the lower courts having criminal jurisdiction the New Mexico Supreme Court has promulgated a rule requiring that criminal charges ordinarily be tried within six months. The rules are not identical. For example, the district court rule is more flexible than the rule for magistrate courts.
Defendant contends that his trial on the charges in CR-88-246 was barred by the magistrate court rule, SCRA 1986, 6-506(B) (Repl.1988), which states:
Any criminal charge within magistrate 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 uniform traffic citation against the defendant, whichever occurs latest, without commencement of a trial by the magistrate court shall be dismissed with prejudice unless, after a hearing, the magistrate 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.
By its terms, however, that rule applies only to charges "within magistrate court trial jurisdiction." CR-88-246 was filed in district court; it was not to be tried by the magistrate court. The magistrate court no longer had jurisdiction because the original complaint filed there was deemed abandoned when the identical charges were later filed in district court. See State v. Muise, 103 N.M. 382, 387, 707 P.2d 1192, 1197 (Ct.App.1985). Therefore, the rule governing timely prosecution of this case was the district court rule, SCRA 1986, 5-604(B), which we quote in part:
The trial of a criminal case * * * shall be commenced six (6) months after whichever of the following events occurs latest:
(1) the date of arraignment, or waiver of arraignment, in the district court of any defendant (2) if the proceedings have been stayed on a finding of incompetency to stand trial, the date an order is filed finding the defendant competent to stand trial;
* * * * * *
(4) in the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in the district court disposing of the appeal;
* * * * * *
The parties contest whether the six-month period originally began with the arraignment in magistrate court or with the arraignment in district court. Defendant argues that because the district court complaint charged the identical offenses as the magistrate court complaint, the six-month period should begin with the filing of the magistrate court complaint. See State v. Lucero, 108 N.M. 548, 775 P.2d 750 (Ct.App.1989) (). The state, on the other hand, argues that (1) the filing of charges in magistrate court cannot affect the application of the six-month rule to district court charges, and (2) Lucero is inapplicable because the state, by seeking consolidation of CR-88-245, CR-88-246, and CR-88-129, was adding additional charges to the original magistrate court complaint. See State v. Chacon, 103 N.M. 288, 706 P.2d 152 (1985); State v. Lucero; State v. Benally, 99 N.M. 415, 658 P.2d 1142 (Ct.App.1983).
We need not resolve that dispute. Rule 5-604(B)(4) provides that "in the event of an appeal, including interlocutory appeals, [the six-month period restarts from] the date the mandate or order is filed in the district court disposing of the appeal[.]" We hold that the state's petition to the supreme court in this case constituted an appeal within the meaning of the rule. Because trial commenced within six months of the supreme court's order dismissing the petition, the state complied with Rule 5-604(B).
We acknowledge that there are distinctions between an "appeal" in its technical sense and a petition for a writ. Nevertheless, our supreme court has made it abundantly clear that we are to give a "common sense" reading to Rule 5-604(B) and that the rule "is not to be technically applied 'to effect dismissals.' " State v. Mendoza, 108 N.M. 446, 448, 774 P.2d 440, 442 (1989) (quoting State v. Flores, 99 N.M. 44, 46, 653 P.2d 875, 877 (1982)). Accord State v. Sanchez, 109 N.M. 313, 785 P.2d 224 (1989). In Mendoza the trial court had entered an order suspending the proceedings to determine the defendant's mental competency to stand trial. After the evaluation the trial judge found the defendant competent. Mendoza held that Rule 5-604(B)(2) provided that the six-month period recommenced from the date of the order finding defendant competent, even though the literal language of the rule applies only if there had been a prior finding of incompetency.
Of special relevance to the issue before us, the Mendoza court referred to our decision in State v. Felipe V., 105 N.M. 192, 730 P.2d 495 (Ct.App.1986) as support for its observation that a literal interpretation of the rule "would not have ... effectuated the rule's intent and purpose." 108 N.M. at 448, 774 P.2d at 442. Felipe V. construed the meaning of the word "appeal" in the provision of the children's court rules requiring speedy commencement of adjudicatory hearings. Children's Court Rule 46(b)(4) (Cum.Supp.1984) (now SCRA 1986, 10-226(B)(4)) stated in pertinent part:
If the respondent is not in detention ... the adjudicatory hearing shall be commenced within ninety days from whichever of the following events occurs latest:
(1) the date the petition is served on the respondent;
* * * * * *
(4) in the event of an appeal, the date the mandate or order is filed in the children's court disposing of the appeal[.]
In Felipe V. the respondent had petitioned the supreme court for a writ of superintending control. We held that "appeal" for the purposes of Rule 46(b)(4) should be defined "as a seeking of review by a higher court, including seeking supreme court review under a preemptory [sic] writ." Id. 105 N.M. at 194, 730 P.2d at 497. Cf. State v. Michael C., 106 N.M. 440, 744 P.2d 913 (Ct.App.1987) (). See also State v. Eden, 108 N.M. 737, 779 P.2d 114 (Ct.App.1989) ().
For present purposes, we see no basis for distinguishing the meaning of "appeal" in the children's court rule from the meaning of "appeal" in Rule 5-604. The only difference in the language of the two rules is that the children's court rule does not contain the words "including interlocutory appeals." Yet Michael C. interpreted the children's court rule to include interlocutory appeals. The approach taken in Mendoza and the reference in that opinion to Felipe V. compel us to adopt the definition of "appeal" in Felipe V. To adopt defendant's reasoning that insertion of the words "including interlocutory appeals" was intended to exclude interlocutory review by means of petitions for peremptory writs would be contrary to the spirit of prior interpretations of our speedy-trial rules.
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