 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the 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. 28,662

10 LEROY ROYBAL,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Timothy L. Garcia, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Max Shepherd, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Robert E. Tangora, L.L.C.
20 Robert E. Tangora
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 KENNEDY, Judge.

25          Defendant Leroy Roybal appeals the district court’s denial of his motion to
 1 dismiss. He contends the State failed to file a timely request for extension under the

 2 six-month rule and, as a result, his case should have been dismissed with prejudice.

 3 See Rule 5-604 NMRA. We agree. We reverse the district court and remand for

 4 proceedings consistent with this opinion.

 5 BACKGROUND

 6        A grand jury indicted Defendant on January 11, 2007, for possession of a

 7 controlled substance in violation of NMSA 1978, Section 30-31-23(D) (2005), and

 8 possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1

 9 (2001). His arraignment occurred on February 16, 2007, before Judge Stephen

10 Pfeffer. Defendant entered a plea of not guilty. Defendant then filed a motion to

11 excuse Judge Pfeffer on February 27, 2007, and the case was reassigned to Judge

12 Michael Vigil. Defendant’s trial was set for July 5, 2007, and then reset to August 14,

13 2007, less than a week short of six months from the date of his arraignment.

14        On July 20, 2007, Defendant, in a separate case before Judge Vigil, requested

15 Judge Vigil recuse himself because he had previously represented Defendant in

16 another matter. Judge Vigil did so, and at the July 23, 2007, hearing in the instant

17 case, he also recused himself. During that hearing, the State orally requested an

18 extension under Rule 5-604, and Judge Vigil, having recused himself, stated he could

19 not rule on the issue and advised the State to seek a ruling from another judge. After


                                               2
 1 this exchange, the record does not contain an order of recusal for Judge Vigil and is

 2 silent with regard to any actions for more than five months prior to December 13,

 3 2007, when Defendant filed a motion to dismiss for failure to comply with Rule 5-

 4 604. On December 19, 2007, the State filed a petition for extension under Rule 5-604,

 5 indicating that the six-month rule ran on August 17, 2007, more than four months

 6 prior to the filing of the petition. Defendant opposed the extension.

 7        The matter was eventually assigned to Judge Timothy Garcia, who granted the

 8 State’s extension without a hearing in an order dated January 23, 2008.             At

 9 Defendant’s request, a hearing was later held on February 8, 2008, at which time the

10 court concluded that under State v. Dominguez, 2007-NMCA-132, 142 N.M. 631, 168

11 P.3d 761, equity weighed against dismissal under Rule 5-604. The court reasoned that

12 because Defendant requested recusal of Judge Vigil and then benefited from Judge

13 Vigil’s inability to rule on the State’s oral extension request, Defendant was

14 responsible for the delay and failed in his duty to ask the court to relinquish its

15 jurisdiction and refer the matter to another judge. On February 19, 2008, Defendant

16 entered a no contest plea to the charges against him, reserving his right to appeal the

17 court’s denial of his motion to dismiss.

18        On appeal, Defendant argues the district court improperly ignored a clear, four-

19 month violation of Rule 5-604 and reached the equities of the case. Even assuming


                                              3
 1 it properly reached such equitable considerations, Defendant contends that those

 2 nonetheless weigh in favor of dismissal. The State has filed no responsive pleadings

 3 in this matter. We therefore consider these issues on the basis of Defendant’s brief

 4 alone. See Lozano v. GTE Lenkurt, Inc., 1996-NMCA-074, ¶ 30, 122 N.M. 103, 920

 5 P.2d 1057 (“Our Rules of Appellate Procedure do not require an answer brief to be

 6 filed; instead, where no brief is filed, the cause may be submitted upon the brief of the

 7 appellant.”); Cobb v. Otero County Assessor, 100 N.M. 207, 210, 668 P.2d 323, 326

 8 (Ct. App. 1983) (affirming a lower court’s decision in the absence of an answer brief).

 9 DISCUSSION

10        The six-month rule requires the commencement of a defendant’s trial within six

11 months of his arraignment or other triggering event. Rule 5-604(B)(1)-(8); see Rule

12 5-104(A) (computation of time). Upon a showing of “good cause,” the district court

13 may grant an extension of this requirement, so long as the party seeking the extension

14 files a petition with the court during the six-month limit. Rule 5-604(C), (D). But in

15 the event of “exceptional circumstances,” the party seeking the extension may have

16 ten additional days in which to file its petition. Rule 5-604(D). If not brought to trial

17 in accordance with the requirements of Rule 5-604, the case against a defendant “shall

18 be dismissed with prejudice.” Rule 5-604(E)(2). A defendant’s right to a speedy trial

19 under the six-month rule is not contingent; it “is a criminal defendant’s right, not that


                                               4
 1 of the State, the courts, or any other party[.]” State v. Savedra, 2010-NMSC-025, ¶

 2 8, ___ N.M. ___, 236 P.3d 20, cert. denied, 2010-NMCERT-___, ___ N.M. ___, ___

 3 P.3d __ (No. 31,288, June 24, 2010).1 Our courts have described the six-month rule

 4 as a bright-line rule, meant to insure the timely disposition of criminal cases.

 5 Dominguez, 2007-NMCA-132, ¶ 6. Even so, we have cautioned that the rule should

 6 not be interpreted so as to defy common sense or effect hypertechnical dismissal. Id.;

 7 State v. Jaramillo, 2004-NMCA-041, ¶ 13, 135 N.M. 322, 88 P.3d 264 (Vigil, J.,

 8 specially concurring); State v. Eden, 108 N.M. 737, 741-42, 779 P.2d 114, 118-19 (Ct.

 9 App. 1989); see State v. Lobato, 2006-NMCA-051, ¶¶ 28-30, 139 N.M. 431, 134 P.3d

10 122 (discussing various considerations to assist in determining when dismissal would

11 be unreasonable or hypertechnical). Courts therefore must strike a balance between

12 enforcing the rule as written and preventing unreasonable applications that defy

13 common sense.

14        In Lobato, for example, this Court held that under “the common sense

15 approach,” a court may ignore a technical violation of the six-month rule where “(1)

16 the delay inures to the benefit of the defendant or (2) the defendant acquiesces in the

17 delay or fails to raise the issue of the . . . rule in a timely manner.” 2006-NMCA-051,

         1
18         In Savedra, our Supreme Court withdrew Rule 5-604(B)-(E) and made its
19 holding effective for all cases pending as of May 12, 2010. Savedra, 2010-NMSC-
20 025, ¶ 9. We note that those changes do not apply in the instant case, which was
21 already on appeal as of May 12, 2010.

                                              5
 1 ¶ 28 (citing State v. Mendoza, 108 N.M. 446, 449-50, 774 P.2d 440, 443-44 (1989);

 2 State v. Sanchez, 109 N.M. 313, 316-17, 785 P.2d 224, 227-28 (1989); and Jaramillo,

 3 2004-NMCA-041, ¶ 15). In deciding whether to relax the standard, courts may also

 4 consider whether the defendant “took affirmative action . . . that could have further

 5 delayed his trial.” Id. ¶ 29; see Dominguez, 2007-NMCA-132, ¶ 21 (observing that

 6 defendant “neither benefited from, caused, nor stipulated to any delay in bringing him

 7 to trial” and did not “wait until the last moment or take an unreasonably lingering

 8 amount of time to move for dismissal”). We apply a de novo standard of review to

 9 a district court’s interpretation of the six-month rule. Id. ¶ 8.

10        Applying these principles, we hold the district court improperly granted the

11 State’s untimely petition for an extension under the six-month rule. Although the

12 record indicates the State did make an oral request to Judge Vigil within the required

13 time limit, Judge Vigil made it clear he was unable to rule on the matter due to his

14 recusal. He instructed the State to seek a ruling elsewhere, but the State never

15 followed through. Instead, it waited more than four months, long after the expiration

16 of the six-month rule, to seek a valid extension; and it did so only after Defendant had

17 already moved for dismissal under the rule. It is well-established that an “accused has

18 no duty to bring on his trial.” State v. Mascarenas, 84 N.M. 153, 155, 500 P.2d 438,

19 440 (Ct. App. 1972).       As this case aptly illustrates, the State must bear the


                                               6
 1 responsibility “to get on with the prosecution, both out of fairness to the accused and

 2 to protect the community interests in a speedy trial.” Id. In this case, the State was

 3 well-aware of its failure to receive an extension from Judge Vigil and never sought a

 4 ruling from another judge. It did so only as a reaction to Defendant’s motion for

 5 dismissal more than four months later.         “The crux of the six-month rule is

 6 promptness.” Dominguez, 2007-NMCA-132, ¶ 22. We hold on these facts that the

 7 district court improperly granted the State’s late request.

 8        Furthermore, we disagree with the district court’s conclusion that the equities

 9 favor the State because Defendant caused and/or benefited from the delay. While true

10 that Defendant sought Judge Vigil’s recusal, it does not follow that he was responsible

11 for the State’s failure to seek a ruling on its motion. It was the State, not Defendant,

12 that waited to seek an extension after four additional months, and Defendant can bear

13 no responsibility for that tardiness. Nor do we see any benefit, besides the mere fact

14 of the delay itself, inuring to Defendant. Also, while true that Defendant himself

15 waited four months to file a motion to dismiss under Rule 5-604, such a period is not

16 per se untimely.

17 CONCLUSION

18        We reverse the district court’s denial of Defendant’s motion to dismiss, and

19 we remand this case for proceedings consistent with this opinion.


                                              7
1      IT IS SO ORDERED.


2                                     ______________________________
3                                     RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 _________________________________
6 MICHAEL D. BUSTAMANTE, Judge



7 _________________________________
8 LINDA M. VANZI, Judge




                                  8
