 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

 6          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                   NO. 29,232

10 FLOYD POWELL,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 Jerry H. Ritter, District Judge

14 Gary K. King, Attorney General
15 Anita Carlson, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Nancy M. Hewitt, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.
 1        Defendant appeals the district court’s denial of his motion to dismiss.

 2 Defendant argues the district court should have dismissed the charges against him on

 3 the basis of a six-month rule violation. Having considered the briefs and the record,

 4 we agree. We reverse the district court and hold the charges against Defendant should

 5 have been dismissed. Because we reverse based on a six-month rule violation, we

 6 need not address Defendant’s speedy trial argument.

 7 A.     Factual Background and Procedural History

 8        The parties agree on the time line of events in this case. Defendant was initially

 9 charged in magistrate court on December 3, 2007. He was arraigned in magistrate

10 court on December 5, 2007. After a pre-trial conference on March 11, 2008, the State

11 filed a nolle prosequi in magistrate court on March 17, 2008, and refiled in district

12 court the following day. The case was originally set for trial on July 25, 2008, but was

13 reset by the district court for October 22, 2008. On September 24, 2008, the State

14 petitioned for an extension of time to commence trial, which was granted by the

15 district court.

16        On October 21, 2008, Defendant filed his motion to dismiss on the grounds of

17 violation of the six-month rule and violation of his right to a speedy trial. Defendant

18 argued his trial should have commenced on or before June 5, 2008, six months from

19 the date of his arraignment on the charges filed in magistrate court. The district court


                                              2
 1 denied Defendant’s motion to dismiss on October 22, 2008, and entered findings on

 2 October 30, 2008. The district court concluded the prosecutor’s dismissal and refiling

 3 was done in good faith and not for the purpose of circumventing the six-month rule.

 4 Defendant entered a conditional no-contest plea, reserving his right to appeal the

 5 district court’s decision on his motion to dismiss.

 6 II.    Savedra and Preservation

 7        We begin by noting that since the parties have briefed this case the Supreme

 8 Court has “withdrawn” Rule 5-604 (B)-(E) NMRA for all pending cases as of May

 9 12, 2010. State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20 (“The

10 six-month rule has become an unnecessary and sometimes counterproductive method

11 for protecting a defendant’s right to a speedy trial. Therefore, effective for all cases

12 pending as of the date this Opinion is filed, we withdraw the six-month rule provisions

13 set forth in Rule 5-604(B)-(E).”) District courts are instead directed to utilize a speedy

14 trial analysis when determining whether charges against a defendant should stand.

15 Savedra, 2010-NMSC-025, ¶ 9. This rule change, however, only applies to those

16 cases pending in the district court at the time Savedra was filed. See id.; see also Rule

17 5-604 (2010) Compiler’s note (explaining that paragraph B, the time for

18 commencement of trial in the district court, is withdrawn for cases pending in the

19 district court on or after May 12, 2010); see also N.M. Mining Comm'n v. United


                                               3
 1 Nuclear Corp., 2002-NMCA-108, ¶ 4, 133 N.M. 8, 57 P.3d 862 (reiterating a “case

 2 must be pending in the tribunal that will be affected by the rule change for Article IV,

 3 Section 34 [stating no act of the legislature shall affect the right or remedy of either

 4 party, or change the rules of evidence or procedure, in any pending case] to apply”);

 5 State v. DeBaca, 90 N.M. 806, 808, 568 P.2d 1252, 1254 (Ct. App. 1977) (explaining

 6 Article IV, Section 34 may apply to court rules as well as legislation); but see State

 7 v. Pieri, 2009-NMSC-019, ¶ 35, 146 N.M. 155, 207 P.3d 1132 (holding Article IV,

 8 Section 34 does not apply to court rules where the rule does not have the effect of a

 9 legislative act and applying rule change prospectively with limited retroactivity). As

10 Defendant’s case was on appeal at the time the rule change was announced, we follow

11 the Supreme Court’s lead and analyze Defendant’s claims under the old rule as in

12 Savedra. See, e.g., Savedra, 2010-NMSC-025, ¶ 10 (abolishing the six-month rule

13 for district courts but applying the old rule to the defendants’ cases).

14        Having determined that the six-month rule applies, we next address the State’s

15 argument that Defendant failed to preserve his argument on the six-month rule

16 because he failed to cite to Yates in the district court, instead relying on earlier case

17 law in which we analyzed whether the prosecution had a “bad reason” for dismissing

18 charges in magistrate court and refiling in district court. Compare State v. Rayburns,

19 2008-NMCA-050, ¶ 10, 143 N.M. 803, 182 P.3d 786 (noting the state bears the


                                               4
 1 burden of demonstrating its actions were legitimate where it refiles a case in district

 2 court and fails to bring the case to trial within the six-month period that began in

 3 magistrate court and explaining the state must demonstrate its actions were not done

 4 for bad reasons or an improper purpose); with State v. Yates, 2008-NMCA-129, ¶ 5,

 5 144 N.M. 859, 192 P.3d 1236 aff’d by Savedra, 2010-NMSC-025 (holding a

 6 defendant’s decision to go to trial that might affect prosecutorial or judicial resources

 7 is generally insufficient to provide a basis for restarting the six-month rule upon a

 8 refiling in the district court). The State asserts our decision in Yates presented a

 9 “radically new analysis” which Defendant was obliged to point out to the district

10 court. The State further argues Defendant relied on the continuation rules found in

11 Rule 6-506A(D) NMRA, which applies to magistrate courts, rather than Rule 5-604,

12 which applies to district courts.

13        Our review of the record and briefs indicates Defendant adequately preserved

14 his issue for appellate review. “To preserve an issue for review on appeal, it must

15 appear that appellant fairly invoked a ruling of the trial court on the same grounds

16 argued in the appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d

17 717, 721 (Ct. App. 1987). Here, Defendant specifically argued below that the trial

18 should have been commenced on or before June 5, 2008, requesting that the district

19 court give effect to the magistrate rule, Rule 6-506A. He argued where a case is


                                               5
 1 dismissed in magistrate court and the same case is refiled in district court, the six-

 2 month time period continues to run.

 3        While Defendant may not have specifically cited to Yates, his assertions were

 4 sufficient to alert the district court to the substance of Defendant’s argument. See

 5 Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 540, 893 P.2d 428, 436 (1995)

 6 (stating “[a]lthough [the] plaintiffs’ due process arguments were not a model of

 7 clarity, and certainly could have been made with more specificity, they were sufficient

 8 to alert the [district] court and opposing counsel to the substance of the argument

 9 being made”); see also State v. Granville, 2006-NMCA-098, ¶ 16, 140 N.M. 345, 142

10 P.3d 933 (considering the issue to be preserved where the court was “armed with the

11 legal assertions and facts necessary” to rule on the issue and the opposing party had

12 the opportunity to respond). Moreover, we disagree with the State’s characterization

13 of our decision in Yates as a radical departure. As we noted in Yates, our decision in

14 that case is consistent with our previous decisions in that the Court must conduct a

15 balancing test when making its decision about whether to restart the six-month time

16 period and that “[i]n openly acknowledging that this balancing occurs, we are not

17 creating new law.” Yates, 2008-NMCA-129, ¶ 9.

18 III.    Standard of Review




                                              6
 1        Moving to the merits of the present case, we conduct a de novo review of a trial

 2 court’s application of the six-month rule. State v. Carreon, 2006-NMCA-145, ¶ 5,

 3 140 N.M. 779, 149 P.3d 95, abrogated on other grounds by Savedra, 2010-NMSC-

 4 025; see also State v. Cardenas, 2003-NMCA-051, ¶ 4, 133 N.M. 516, 64 P.3d 543

 5 (“The district court’s application of Rule 5-604 is subject to de novo review.”). We

 6 review the trial court’s determination regarding questions of historical fact, however,

 7 with the deference of the substantial evidence standard.            See State v. Bolton,

 8 1997-NMCA-007, ¶ 13, 122 N.M. 831, 932 P.2d 1075, abrogated on other grounds

 9 by Savedra, 2010-NMSC-025. “[A] de novo standard is applied to determine the type

10 of reasons that will justify a dismissal . . . or the type of analysis that should be

11 utilized in these cases.” Id.

12 IV.    The District Court Should Have Dismissed Defendant’s Case for Violation
13        of the Six-Month Rule

14        As in our previous cases where the State has chosen to nolle prosequi a case in

15 magistrate court and refile in district court, there are a few different rules at play in

16 this case. District court Rule 5-604(B) requires, in relevant part, the trial of a criminal

17 case in district court shall be commenced six months after either the date of

18 arraignment or waiver of arraignment, whichever occurs later. Similarly, magistrate

19 court Rule 6-506 requires a defendant’s trial to commence within 182 days of a

20 triggering event, absent permissible extensions. Finally, magistrate court Rule 6-

                                                7
 1 506A(D) states that in refiled cases in magistrate court “the case shall be treated as a

 2 continuation of the same case, and the trial on the refiled charges shall be commenced

 3 within the unexpired time for trial pursuant to Rule 6-506 NMRA, unless the court,

 4 after notice and a hearing, finds the refiled complaint should not be treated as a

 5 continuation of the same case.”

 6        The question is whether the refiling of the charges in district court restarts the

 7 time line with regards to the running of the six-month period that originally began to

 8 run in magistrate court. We recognize we have previously approved the practice of

 9 filing cases in district court where it is known the defendant would appeal de novo to

10 the district court. However, as explained in Yates, we have since limited that practice,

11 explaining that similarly-situated defendants should be treated alike even when their

12 prosecutions are initiated in the magistrate court. See, e.g., Yates, 2008-NMCA-129,

13 ¶ 11; Carreon, 2006-NMCA-145, ¶ 10. As this Court noted in Yates, the magistrate

14 court rules adopt a default rule by which the six-month rule clock is not automatically

15 reset by the dismissal and refiling. Yates, 2008-NMCA-129, ¶ 2. Instead, resetting the

16 six-month rule clock upon the refiling of the same charges is the exception, not the

17 norm. Id. Prosecutors may do as they wish by voluntarily dismissing charges brought

18 in magistrate court, Rule 6-506A(A), but in view of Rule 6-506A(D) prosecutors

19 should not expect to routinely be relieved of the sixth-month rule consequences


                                              8
 1 triggered by the first prosecution.” Yates, 2008-NMCA-129, ¶ 2. We further

 2 explained:

 3        The interests served by the six-month rule are substantially the same
 4        when a case is filed in magistrate court, dismissed, and refiled in
 5        magistrate court and when a case is filed in magistrate court, dismissed,
 6        and refiled in district court. Similarly-situated defendants ought to be
 7        afforded similar rights. The principle that like should be treated alike
 8        inclines us to afford all defendants whose prosecutions are initiated in
 9        magistrate court the benefit of Rule 6-506A(D), regardless of whether
10        the State refiles the charges in magistrate court or district court.

11 Id. ¶ 5. Yates therefore reconciles Rules 5-604(B), 6-506A(D), and 6-506(B) by

12 affording the protection in Rule 6-506(D) to those cases refiled in district court.

13 Yates, 2008-NMCA-129, ¶¶ 9-11. This analysis was later approved by our Supreme

14 Court in Savedra. 2010-NMSC-025, ¶ 4.

15        Here, the prosecutor apparently felt refiling would conserve prosecutorial and

16 judicial resources as the case was likely to be complex and Defendant was likely to

17 appeal an adverse judgment. Based on this, the district court found the refiling had

18 been done in good faith and not in order to avoid time limits. Given recent case law

19 on this subject, we cannot agree with the district court’s analysis as it places too much

20 emphasis on the prosecutor’s subjective motive. Accordingly, we hold the district

21 court should have dismissed the case against Defendant because the State’s wish to

22 conserve judicial resources is insufficient to overcome the State’s burden and to restart

23 the six-month time period.

                                               9
 1        In an effort to avoid application of Yates, the State further asserts Yates should

 2 not apply retroactively, equating the Yates decision to an amendment to Rule 5-604.

 3 We disagree with the State’s characterization of the decision in Yates as an

 4 amendment to the rule. While this Court will not generally retroactively apply a rule

 5 change to the tribunal which is affected by the rule, we reiterate that our decision in

 6 Yates was consistent with our general policy of conducting a balancing test in these

 7 types of cases. 2008-NMCA-129, ¶¶ 9, 11. As previously stated, “[i]n openly

 8 acknowledging that this balancing occurs, we are not creating new law.” Id. ¶ 9. As

 9 in Yates, we “adhere to our conclusion in Carreon that ‘the mere existence of the

10 prosecutorial policy of dismissing every magistrate court case that is not settled before

11 the six-month deadline is insufficient to sustain the State’s burden.’” Yates, 2008-

12 NMCA-129, ¶ 11 (citation omitted).

13        We also acknowledge this case differs somewhat from Yates in that Yates only

14 involved a uniform policy of never trying a DWI case in magistrate court, while this

15 case also involves the State’s assertion it was refiling because of the possible

16 complexity of the case. However, this argument was not raised by the State and we

17 therefore decline to address it. See In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825

18 (1982) (cautioning against appellate court deciding issues on grounds not raised in

19 briefing); Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12,


                                              10
 1 125 N.M. 691, 964 P.2d 855. Moreover, both of these reasons are centered on judicial

 2 economy and the State concedes that under Yates, where the State refiles because of

 3 judicial economy, the State “does not get a new six-month period in district

 4 court—regardless of whether there was improper motive or intent to circumvent.”

 5        Lastly, we note the State argues Yates was incorrectly decided by the Court of

 6 Appeals. However, as previously explained in this opinion, Yates was recently upheld

 7 by the Supreme Court in Savedra.

 8 V.     Conclusion

 9        Accordingly, we hold the six-month rule began to run continuously from the

10 date of Defendant’s arraignment in magistrate court and the six-month period expired

11 in district court before Defendant was brought to trial. The charges against Defendant

12 should therefore have been dismissed based on a violation of the six-month rule. We

13 therefore reverse.

14        IT IS SO ORDERED.


15
16                                         MICHAEL D. BUSTAMANTE, Judge

17 WE CONCUR:


18
19 JONATHAN B. SUTIN, Judge


                                             11
1
2 LINDA M. VANZI, Judge




                          12
