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                                                                    integrity of this document
                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 09:21:36 2012.05.09
Certiorari Denied, March 23, 2012, No. 33,481

        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-042

Filing Date: February 15, 2012

Docket No. 30,558

STATE OF NEW MEXICO,

        Plaintiff-Appellant,

v.

WILLIAM SHARP,

        Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Robert S. Orlik, District Judge

Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM

for Appellant

Liane E. Kerr
Albuquerque, NM

for Appellee

                                          OPINION

SUTIN, Judge.

{1}     In a de novo appeal from magistrate court, the district court dismissed with prejudice
the charges against Defendant owing to a violation of Rule 6-506 NMRA, commonly
referred to as “the six-month rule.” The district court’s stated reasons for dismissing the case
were (1) the State’s failure to respond, in writing, to Defendant’s magistrate court motion
to dismiss, and (2) the magistrate court’s failure to provide a statement in the record as to the
extraordinary basis pursuant to Rule 6-506(C)(5) upon which it found exceptional

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circumstances to extend the time limit within which to hold a trial. On the State’s appeal,
we hold that the district court improperly treated the matter as an on-the-record appeal
instead of as a de novo appeal and that the district court failed to apply Rule 6-506(E). We
reverse and remand to the district court for an independent determination of whether, under
the particular facts of this case, the violation of the six-month rule warranted dismissal.

DISCUSSION

{2}     Defendant was charged in a criminal complaint filed March 16, 2009, with
aggravated driving while intoxicated (DWI) and failing to maintain a lane. On March 23,
2009, Defendant filed a waiver of arraignment. This gave rise to the Rule 6-506(B)(1)
requirement that Defendant’s trial commence within 182 days, by September 21, 2009. On
June 10, 2009, Defendant filed a motion to suppress. On July 31, 2009, with the State’s
consent, Defendant filed a motion to continue the trial scheduled for August 4, 2009. The
trial was rescheduled for September 1, 2009. On September 1, 2009, the matter was vacated
to allow a hearing on Defendant’s motion to suppress, which was set for October 2, 2009.
Also on September 1, 2009, jury selection was reset for October 6, 2009. On October 6,
2009, the trial was rescheduled for October 28, 2009. On October 2, 2009, Defendant filed
a motion to dismiss for failure to comply with the six-month rule, which the magistrate court
denied on October 5, 2009. Following the jury trial on October 28, 2009, Defendant was
found guilty of the charges in the complaint.

{3}     In Defendant’s de novo appeal to the district court, he filed a motion to dismiss based
on violation of the six-month rule and based on the State’s failure in magistrate court to file
a motion to extend the deadline for trial. At the hearing on Defendant’s motion, Defendant
acknowledged that the delays were to his benefit. The district court dismissed the case with
prejudice, stating as grounds for dismissal that (1) the State had not responded to
Defendant’s magistrate court motion to dismiss, and (2) the magistrate court extended the
time limit within which to hold a trial “without a statement on the record as to the
extraordinary basis upon which it was to be extended.”

{4}     On appeal, the State argues that the district court erred in dismissing the case because
the court relied on the former version of Rule 6-506(E) which mandated dismissal with
prejudice for failure to comply with the six-month rule, rather than the current and applicable
version of Rule 6-506(E), which affords the court discretion in determining whether to
dismiss the case or to consider other sanctions as appropriate. The State also argues that
Rule 6-506 was not violated in the first place because the delay was requested by and
benefitted Defendant, and because the magistrate court correctly extended the time pursuant
to Rule 6-506(C)(5).

{5}     “We review de novo questions of law concerning the interpretation of Supreme Court
rules and the district court’s application of the law to the facts of [the] case.” State v. Foster,
2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824. The appeal of a magistrate court
decision to a district court is de novo. Rule 6-703(J) NMRA. In hearing a de novo appeal,

                                                2
“the district court is not in any way bound by the proceedings in the lower court.” State v.
Hicks, 105 N.M. 286, 287, 731 P.2d 982, 983 (Ct. App. 1986). Further, the district court
must independently determine whether the magistrate court rules were followed. See id.
(stating that in a de novo appeal from a metropolitan court decision, “it was incumbent upon
the district court to make an independent determination of whether” the law enforcement
officer had complied with the metropolitan court rule requiring a criminal complaint to be
filed “forthwith” in accordance with the then-applicable rule (internal quotation marks
omitted)).

{6}      The former version of Rule 6-506(E) mandated dismissal with prejudice in the event
of non-compliance with Rule 6-506(B). See Rule 6-506 compiler’s annots. (explaining that
the 2008 amendment, effective January 15, 2009, to Subsection (E) changed “shall” to
“may”). The former version was replaced with the current version of Rule 6-506(E) that
allows the court to exercise discretion to dismiss the case for a violation of the six-month
rule or to apply other sanctions, as appropriate, depending upon the circumstances of the
case. See Duran v. Eichwald, 2009-NMSC-030, ¶ 15, 146 N.M. 341, 210 P.3d 238 (stating
that all versions of the six-month rule, including Rule 6-506, were amended by a Supreme
Court order to give courts discretion to decide whether the failure to timely commence trial
should result in dismissal of the charges or whether some other sanction would be more
appropriate).

{7}       In the district court hearing on Defendant’s motion to dismiss, Defendant’s counsel
advised the court that dismissal was mandatory, stating that “the fact remains that under the
rule . . . if the . . . time is not extended then the court shall dismiss it, and it’s a shall rule.”
The State did not seek to correct Defendant’s incorrect statement of the law nor did the State
alert the court to the current, discretionary version of Rule 6-506(E). Because there is no
evidence in the record that the district court considered or applied any particular version of
Rule 6-506(E) in this case, and because the State failed to preserve a Rule 6-506(E) issue by
raising it in the district court, we do not consider this aspect of the State’s argument. See
State v. Riley, 2010-NMSC-005, ¶ 24, 147 N.M. 557, 226 P.3d 656 (“To preserve a question
for review it must appear that a ruling or decision by the district court was fairly invoked.”
(alteration omitted) (internal quotation marks and citation omitted)); State v. Garcia, 2005-
NMCA-065, ¶ 6, 137 N.M. 583, 113 P.3d 406 (“We generally do not consider issues on
appeal that are not preserved below.”); see also State v. Hunter, 2001-NMCA-078, ¶ 18, 131
N.M. 76, 33 P.3d 296 (“Matters not of record present no issue for review.”).

{8}      The record does not support the district court’s first stated ground for dismissal,
which was that the State failed to respond in magistrate court to Defendant’s written motion
to dismiss. The record reflects that Defendant filed his written motion to dismiss in
magistrate court at 11:48 a.m. on the day of the hearing on Defendant’s motion to suppress,
which was scheduled for 11:30 a.m., and also at which the magistrate court heard
Defendant’s argument on his motion to dismiss. Thus, although it is true that the State did
not file a written response to the motion, it appears that the State did not have an opportunity
to do so. The record does reflect that the State orally argued its opposition to Defendant’s

                                                 3
motion to dismiss and that three days later the magistrate court, “having heard arguments of
both parties[,]” entered a written order denying Defendant’s motion to dismiss. Even if the
district court’s view of the proceedings in the magistrate court were accurate, it was error for
the district court to base its dismissal on this rationale given that the failure of the State in
the magistrate court proceedings to adhere to the formality of a written response in
magistrate court motion practice should not be the subject of a district court’s independent
consideration in a de novo proceeding on the issue of a violation of the six-month rule. Cf.
Hicks, 105 N.M. at 287, 731 P.2d at 983 (stating that in a de novo appeal “it [is] incumbent
upon the district court to make an independent determination of whether the . . . [rules of
magistrate court were followed]”).

{9}    The State’s next contention is that the district court erred in determining that the
magistrate court violated Rule 6-506. The magistrate court, acting on its own motion,
extended the time to commence trial pursuant to Rule 6-506(C)(5), which states that

        [t]he time for commencement of trial may be extended by the court . . . upon
        a determination by the court that exceptional circumstances exist that were
        beyond the control of the state or the court that prevented the case from being
        heard within the time period provided that the aggregate of all extensions
        granted pursuant to this subparagraph may not exceed sixty . . . days[.]

In a written order, the magistrate court denied Defendant’s motion to dismiss “due to
circumstances in this case being outside the control of the State or the [c]ourt” and ordered
that the time within which to commence trial would be extended for thirty days pursuant to
Rule 6-506(C)(5). The State’s position is that the magistrate court properly extended the
time to commence trial and that, in doing so, acted in compliance with the rule. Citing State
v. Lobato, 2006-NMCA-051, ¶¶ 26, 28, 139 N.M. 431, 134 P.3d 122, the State contends that
because the delay was to Defendant’s benefit and because he acquiesced in the delay,
common sense supported the magistrate court’s decision to extend the time within which to
hold trial, and the district court should have concluded the same.

{10} Defendant argues that his motion to dismiss was properly granted because, as the
district court held, the magistrate court failed to make a record of what was “the
extraordinary basis upon which [the time within which to hold trial] was to be extended.”
Defendant argues that it was incumbent upon the magistrate court to make a written record
of its findings and to specifically state the exceptional circumstances that warranted an
extension of the six-month rule because the magistrate court’s statement of exceptional
circumstances was “clearly something which [was] necessary for review of this issue.”

{11} We see no necessity for the requirement advanced by Defendant and the district court
given that the appeal to the district court is not an on-the-record review but, instead, is de
novo. Thus, were we to decide this case on this single circumstance, we would reverse the
district court’s ruling because no rule or case law required the magistrate court to create a
record of what were the exceptional circumstances that led to its decision. For the reasons

                                               4
explained later in this Opinion, we reverse the district court on other, broader grounds.
Unlike appeals to this Court, in which we often afford deference to the discretionary
decisions of the lower court, in de novo appeals from the magistrate court, the district court
“is not in any way bound” by the magistrate court’s decision, and it is “incumbent upon the
district court to make an independent determination” of whether the magistrate court rules
were followed. Hicks, 105 N.M. at 287, 731 P.2d at 983. A de novo appeal in the district
court is conducted “as if the trial in the [magistrate] court had not occurred.” Foster, 2003-
NMCA-099, ¶ 9.

{12} In Hicks, the defendant was arrested, and a criminal complaint was filed eight days
later. 105 N.M. at 286-87, 731 P.2d at 982-83. Then-applicable Metropolitan Court Rule
38(d) required the arresting officer to file a criminal complaint in the magistrate court
“forthwith.” Id. at 287, 731 P.2d at 983. The metropolitan court determined that the
complaint had not been filed “forthwith” and dismissed the charge accordingly. Id. The
district court, concluding that the decision whether to dismiss was left to the magistrate
court’s discretion and that the prosecution had failed to demonstrate that the metropolitan
court had abused its discretion, affirmed the ruling. Id. The prosecution appealed to this
Court, claiming that it was error for the district court to apply an appellate, rather than a de
novo standard of review. Id. Agreeing with the prosecution, this Court remanded for the
district court to independently consider, de novo, whether the officer had complied with the
“forthwith” requirement of the metropolitan court rule. Id.

{13} Here, as in Hicks, the district court improperly engaged in an appellate, rather than
a de novo review. Rather than basing its decision on an independent determination of
whether the violation of the six-month rule warranted dismissal in this case, the district court
reviewed the action of the magistrate court and dismissed the case based on what it believed
was the magistrate court’s error. The record does not reflect that the district court made an
independent determination on the issue of violation of the six-month rule. Therefore, as in
Hicks, we reverse the district court’s ruling and remand for a de novo proceeding in which
the district court shall independently determine whether dismissal was warranted under the
facts of the case.

CONCLUSION

{14} We reverse the district court’s dismissal of the case with prejudice and remand the
case for de novo proceedings in accordance with this Opinion.

{15}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:


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___________________________________
JAMES J. WECHSLER, Judge

___________________________________
RODERICK T. KENNEDY, Judge

Topic Index for State v. Sharp, Docket No. 30,558

AE                   APPEAL AND ERROR
AE-SR                Standard of Review

CT                   CONSTITUTIONAL LAW
CT-ST                Speedy Trial

CA                   CRIMINAL PROCEDURE
CA-DC                Dismissal of Charges
CA-DF                Delay in Filing
CA-TL                Time Limitations

JD                   JURISDICTION
JD-AJ                Appellate Jurisdiction
JD-DC                District Court
JD-MC                Magistrate Court




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