Certiorari Granted, October 18, 2010, No. 32,589

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-095

Filing Date: August 9, 2010

Docket No. 28,297

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

JOSE ALFREDO ORDUNEZ,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth, District Judge

Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM

for Appellee

                                        OPINION

WECHSLER, Judge.

{1}     The State appeals from the district court’s dismissal of probation revocation
proceedings against Defendant in his driving while under the influence of intoxicating liquor
or drugs (DWI) case for lack of jurisdiction. The district court concluded that it had no
jurisdiction to address a statutory provision that denies credit to DWI offenders for time
served on probation if they violate probation and the court does not revoke probation before

                                             1
the probationary period is concluded. We agree with the district court’s interpretation of the
statutes and hold that revocation of a defendant’s probation and resultant forfeiture of
probation credit must be ordered by the district court before the original period of probation
expires. We therefore affirm.

BACKGROUND

{2}     Following a guilty plea, Defendant was convicted for aggravated driving while under
the influence of intoxicating liquor (refusal) and driving while license suspended or revoked.
Defendant committed the crimes on August 30, 2004 and was a repeat DWI offender with
three prior convictions. The judge sentenced Defendant to a total term of two years and 181
days, with six months and seven days to be served in the detention center and the remainder
of the sentence (one year and six months and 174 days) suspended subject to supervised
probation. The order of probation provided that Defendant is “under probation supervision
until 10/19/2007.” On September 7, 2007, the State filed a petition to revoke probation
based on Defendant’s August 18, 2007 arrest for driving while intoxicated and consumption
of alcohol. The district court initially scheduled the probation revocation hearing for
October 25, 2007 and then reset the hearing for December 20, 2007. Although the State filed
its September 7, 2007 petition to revoke probation during the time Defendant was still
subject to supervised probation, the hearing on the State’s petition was not scheduled until
after the supervised probation period was set to expire on October 19, 2007. Prior to the
scheduled probation revocation hearing, the State filed an amended petition to revoke
probation to include allegations that Defendant also violated probation on November 14,
2007, by failing breathalyzer tests administered by his probation officer. At the probation
revocation hearing, Defendant successfully moved to dismiss the proceedings, arguing that
the district court lost jurisdiction because Defendant’s original period of probation had
already expired. The district court granted the motion to dismiss, and this appeal followed.

APPLICABLE LAW

{3}     Before considering whether the district court erred in dismissing for lack of
jurisdiction, we address the parties’ assumption that the applicable law is the 2004 version
of NMSA 1978, Section 66-8-102 (2004) (amended 2008). The parties indicate that the
2004 version applies because the underlying crimes upon which the probation was based
occurred on August 30, 2004. See generally State v. Allen, 82 N.M. 373, 374, 482 P.2d 237,
238 (1971) (providing that the law in effect at the time of commission of the offense is
controlling). However, after Defendant’s case was finalized and while he was serving
probation, Section 66-8-102 was amended several times before Defendant allegedly violated
his probation on August 17, 2007. Even though Defendant was still serving probation, his
case was not considered pending for purposes of our state constitutional provision that
prohibits the Legislature from changing the rights or remedies of the parties to a pending
case. See N.M. Const. art. IV, § 34 (providing that “[n]o act of the [L]egislature shall affect
the right or remedy of either party, or change the rules of evidence or procedure, in any
pending case”); State v. Druktenis, 2004-NMCA-032, ¶¶ 39-43, 135 N.M. 223, 86 P.3d 1050

                                              2
(noting that a change in the law that takes effect while a defendant is serving probation is the
applicable law for purposes of a subsequent probation revocation proceeding because the
case was not pending for purposes of Article IV, Section 34 of the New Mexico
Constitution). Accordingly, because Defendant allegedly violated his probation on August
17, 2007, the 2007 version of Section 66-8-102 was the applicable law for purposes of
Defendant’s probation revocation proceeding.

{4}      Although the parties and the district court relied on the 2004 version of Section 66-8-
102, we nevertheless take it upon our own initiative to apply the 2007 version of the statute
because the sentencing authority of the court is at issue. See State v. Hunter, 2001-NMCA-
078, ¶ 8, 131 N.M. 76, 33 P.3d 296 (noting that the district court’s sentencing authority is
a jurisdictional matter that can be considered for the first time on appeal); State v. McNeece,
82 N.M. 345, 345-46, 481 P.2d 707, 707-08 (Ct. App. 1971) (noting that, although the
parties did “not question which statute is the applicable one,” the use of an inapplicable
statute calls into question the jurisdiction of the sentencing court and may be raised sua
sponte by the appellate court because the “[l]ack of jurisdiction at any stage of a proceeding
is a controlling consideration to be resolved before going further” (alteration in original)
(internal quotation marks and citation omitted)); see also Smith v. City of Santa Fe, 2007-
NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 (“[I]t is incumbent upon the appellate court
to raise jurisdiction questions sua sponte when the Court notices them.”). While the relevant
provisions of the 2004 and 2007 statutes are similar in many respects, there is one significant
distinction under the circumstances of this case. In particular, Subsection (E) only applied
to first-time DWI offenders. We note that, because of this distinction, the State could not
have relied on that statute to deprive Defendant of credit for time served on probation
because Defendant was a repeat DWI offender. Nevertheless, Subsection (S) of the 2007
statute contains the same provisions included in Subsection (E) of the 2004 version, but
Subsection (S) of the 2007 statute is applicable to all levels of DWI offenders who violate
probation—including Defendant.

INTERPRETATION OF SECTION 66-8-102(S)

{5}     Having established the applicable statute, we next consider its effect de novo. See
French-Hesch v. French-Williams, 2010-NMCA-008, ¶ 4, 147 N.M. 620, 227 P.3d 110
(filed 2009) (“The interpretation of statutes is a question of law that we review de novo.”).
We read statutes harmoniously with each other whenever possible, State v. Smith,
2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022, and we interpret statutes “to facilitate
and promote the [L]egislature’s accomplishment of its purpose.” State v. Rivera,
2004-NMSC-001, ¶ 12, 134 N.M. 768, 82 P.3d 939 (filed 2003) (internal quotation marks
and citation omitted). We do not construe statutes to result in absurdity or to defeat
legislative intent. State v. Herrera, 86 N.M. 224, 226, 522 P.2d 76, 78 (1974). Instead,
“[w]e seek to give meaning to all parts of the statute, such that no portion is rendered
surplusage or meaningless.” Int’l Ass’n of Firefighters v. City of Carlsbad, 2009-NMCA-
097, ¶ 11, 147 N.M. 6, 216 P.3d 256, cert. denied, 2009-NMCERT-007, 147 N.M. 363, 223
P.3d 360.

                                               3
{6}    Section 66-8-102(S) provides as follows:

               With respect to this section and notwithstanding any provision of law
       to the contrary, if an offender’s sentence was suspended or deferred in whole
       or in part and the offender violates any condition of probation, the court may
       impose any sentence that the court could have originally imposed and credit
       shall not be given for time served by the offender on probation.

For ease of reference, we will refer to the foregoing provision as the no-credit provision.
The Legislature’s intent in Section 66-8-102(S) is apparent from the plain language—if a
defendant violates the terms of probation, the court may impose any sentence that could have
originally been imposed with no credit given for time served. See id.; see also Albuquerque
Bernalillo County Water Util. Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, ¶
52, 148 N.M. 21, 229 P.3d 494 (“In discerning the Legislature’s intent, we are aided by
classic canons of statutory construction, and [w]e look first to the plain language of the
statute, giving the words their ordinary meaning, unless the Legislature indicates a different
one was intended.” (alteration in original) (internal quotation marks and citation omitted)).
The Legislature’s inclusion of “notwithstanding any provision of law to the contrary” in
Section 66-8-102(S) indicates that the Legislature intended this bar to be applied,
notwithstanding any provision of law that might otherwise be read to allow a defendant
credit for time served. In other words, if a defendant attempted to argue that credit should
be given, the “notwithstanding” language makes clear that the no-credit provision would
prevail. In this case, Defendant was accused of violating his probation; therefore, the State
argued for imposing a new sentence and maintained that, pursuant to Section 66-8-102,
Defendant should not receive credit for time served on probation.

{7}     Generally, if a probation violation is established when there is a suspended sentence,
“the court may continue the original probation, revoke the probation and either order a new
probation . . . or require the probationer to serve the balance of the sentence imposed or any
lesser sentence.” NMSA 1978, § 31-21-15(B) (1989). In determining the balance of the
sentence, the defendant is entitled to credit for any time served on probation. See State v.
Baca, 2005-NMCA-001, ¶ 21, 136 N.M. 667, 104 P.3d 533 (filed 2004) (recognizing that
“[a] probationer whose sentence has been suspended is entitled to credit against his or her
sentence for the time served on probation”).

{8}     However, as noted above, even though the State filed its petition to revoke probation
before Defendant’s period of probation was set to expire, a hearing on the petition was not
held until after the original period of probation had expired. NMSA 1978, Section 31-20-8
(1977) states that, when a period of suspension expires without revocation of a defendant’s
probation, “the defendant is relieved of any obligations imposed on him.” The Legislature’s
intent in Section 31-20-8 is also apparent from the statute’s plain language—if a defendant
satisfies his probation period without revocation, he is relieved of further obligations. See
Albuquerque Bernalillo County Water Util. Auth., 2010-NMSC-013, ¶ 52 (stating that we
look to the plain language of a statute when discerning legislative intent, giving words their

                                              4
ordinary meaning). In other words, the district court must hold a hearing before the
expiration of the defendant’s probation period, after which point it loses jurisdiction to do
so. See State v. Katrina G., 2007-NMCA-048, ¶ 17, 141 N.M. 501, 157 P.3d 66 (“Section
31-20-8 clearly evinces the [L]egislature’s intent to require a hearing before the expiration
of the probation period.”). Had the Legislature intended to extend the district court’s
jurisdiction beyond a defendant’s probation period, it certainly could have done so. Cf. id.
(stating that, if the Legislature had wanted to draft a children’s code statute with the same
expiration of jurisdiction as seen in Section 31-20-8, it could have done so).

{9}      The State relies on the no-credit provision to argue that the ordinary jurisdictional
limit imposed by Section 31-20-8 does not apply. The State emphasizes that the no-credit
provision should be applied “notwithstanding any provision of law to the contrary.” See §
66-8-102(S). The dissent similarly asserts that the “notwithstanding any provision of law
to the contrary” language indicates legislative intent to except DWI probation violators from
the district court’s basic jurisdictional prerequisite in Section 31-20-8. Dissent Op. ¶¶ 21-22.
We are not persuaded that the Legislature intended the no-credit provision and its broad
application to add to the jurisdiction of the district court.

{10} We have previously interpreted Section 31-20-8 to mean that the district court loses
jurisdiction to revoke probation once the probation period ends, even in cases in which the
petition to revoke probation was filed before the probation period ends. See State v. Lara,
2000-NMCA-073, ¶¶ 3, 6-9, 129 N.M. 391, 9 P.3d 74 (stating that the statute is clear that
the district court lacks jurisdiction to revoke probation after the period of revocation has
expired, even though the motion for unsatisfactory discharge was filed before the expiration
of the defendant’s probationary term); see also Katrina G., 2007-NMCA-048, ¶ 15
(reiterating that Section 31-20-8 mandates that, when the period of suspension expires
without revocation, “the defendant shall be entitled to a certificate from the court so reciting
such facts” and stating that “Section 31-20-8 sets forth an explicit deadline—the expiration
of the period of suspension—by which the district court must revoke the suspension order”
(internal quotation marks and citation omitted)). When we read Section 31-20-8 and Section
66-8-102(S) harmoniously, and in light of our case law, the sentencing statute, Section 66-8-
102(S), does not bear on the jurisdictional statute, Section 31-20-8. Rather, the opposite is
true—as long as the district court has jurisdiction to proceed with a probation revocation
proceeding, it shall apply the no-credit provision when applicable, notwithstanding any law
to the contrary.

{11} Although we acknowledge the dissent’s concern that, when a probation violation
occurs near the end of a probation period, it might be more difficult to impose the no-credit
provision in Section 66-8-102(S), see Dissent Op. ¶ 24, it is not for the courts to override the
policy of the Legislature. See Lara, 2000-NMCA-073, ¶¶ 3, 6-9 (stating that the district
court loses jurisdiction once the probation period has expired); see also State ex rel. Coll v.
Johnson, 1999-NMSC-036, ¶ 24, 128 N.M. 154, 990 P.2d 1277 (stating that it is not within
the province of our Supreme Court to “question the wisdom, policy, or justness of legislation
enacted by our Legislature” (internal quotation marks and citation omitted)). To read the

                                               5
statutes in the manner that the State and the dissent advocate—allowing the district court to
apply the no-credit provision after Defendant’s probation period had expired—would not be
a harmonious reading of the statutes and it would effectively render the Legislature’s
statement in Section 31-20-8, concerning the district court’s jurisdiction, meaningless. We
will not read the no-credit provision in this manner. See Int’l Ass’n of Firefighters, 2009-
NMCA-097, ¶ 11 (stating that “[w]e seek to give meaning to all parts of the statute, such that
no portion is rendered surplusage or meaningless”).

{12} We agree with Defendant and the district court that, even if the no-credit provision
could be used to impose any sentence that could have been originally imposed and to deprive
him of credit for time served on probation, it was too late to do so because his original period
of probation had already expired. The district court did not err in determining that it had no
jurisdiction.

{13} We lastly respond to the dissent’s argument that Section 31-21-15(C), a statute
tolling the probation period while the probationer is a fugitive from justice, gives guidance
regarding the Legislature’s intent to except DWI probationers from the jurisdictional limit
of Section 31-20-8. Dissent Op. ¶ 23. We agree with the dissent that, in Section 31-21-
15(C), “the Legislature intended to ensure that probationers could not defeat the district
court’s authority to revoke probation by absconding from the jurisdiction.” Dissent Op. ¶
23; State v. Apache, 104 N.M. 290, 291, 720 P.2d 709, 710 (Ct. App. 1986). However, we
disagree that the Legislature’s intent to toll the probation period with regard to fugitives
extends to DWI probation violators who are not fugitives.

{14}   Section 31-21-15(C) states,

                [i]f it is found that a warrant for the return of a probationer cannot be
       served, the probationer is a fugitive from justice. After hearing upon return,
       if it appears that he has violated the provisions of his release, the court shall
       determine whether the time from the date of violation to the date of his arrest,
       or any part of it, shall be counted as time served on probation.

As we stated in Apache, Section 31-21-15(C) tolls the probation period while a probationer
has absconded from the jurisdiction so that the probationer cannot defeat the district court’s
jurisdiction merely by remaining a fugitive from justice until the probation period has run.
Apache, 104 N.M. at 291, 720 P.2d at 710. In other words, the district court retains
jurisdiction over a probationer who has voluntarily become a fugitive based upon the express
language in Section 31-21-15(C). Section 66-8-102(S) does not react to a defendant’s choice
to abscond from justice, but, instead, prohibits a court from granting credit for time served
to DWI offenders, even if they would otherwise be granted credit for time served. The
circumstances are not analogous.

{15} In addition, we do not believe, as stated above, that the Legislature intended for the
district court to first decide whether a DWI defendant is entitled to credit served, pursuant

                                               6
to Section 66-8-102(S), before it decides whether it has jurisdiction at all, because such an
interpretation would render the jurisdictional limitation of Section 31-20-8 meaningless and
would not be a harmonious reading of the statutes. See Int’l Ass’n of Firefighters, 2009-
NMCA-097, ¶ 11 (seeking to give meaning to all parts of the statute); State v. Smith,
2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (reading statutes harmoniously with
each other whenever possible). And, again, the Legislature could have expressly tolled the
probation period in Section 66-8-102(S), as it did with Section 31-21-15(C), had it so
desired. See City of Roswell v. Smith, 2006-NMCA-040, ¶ 12, 139 N.M. 381, 133 P.3d 271
(“[T]he [L]egislature could easily have included additional language in a statute had it
desired to do so.” (internal quotation marks and citation omitted)).

CONCLUSION

{16}   For the reasons stated in this opinion, we affirm the district court’s order of dismissal.

{17}   IT IS SO ORDERED.

                                               ____________________________________
                                               JAMES J. WECHSLER, Judge

I CONCUR:

____________________________________
RODERICK T. KENNEDY, Judge

LINDA M. VANZI, Judge (dissenting)

VANZI, Judge (dissenting).

{18} I do not agree with the majority that the district court lacked jurisdiction in this case
to decide whether to revoke Defendant’s probation and order the forfeiture of probation
credit. I would reverse the district court’s order of dismissal and remand for further
proceedings on the State’s amended petition to revoke probation.

{19} As an initial matter, I do not take issue with the majority’s application of the 2007
version of Section 66-8-102, as I believe this was the law at the time Defendant allegedly
violated his probation. Majority Op. ¶ 4. I also do not disagree with the general premise that
within the context of an ordinary probation revocation proceeding, our case law provides that
the district court lacks jurisdiction to revoke probation after the probation period ends, even
if the petition to revoke probation was filed before the probation period ends. See § 31-20-8
(stating that “[w]henever the period of suspension expires without revocation of the order,
the defendant is relieved of any obligations imposed on him”); Lara, 2000-NMCA-073, ¶¶
6-8; Majority Op. ¶ 8.


                                               7
{20} Applying Section 31-20-8 to this case, the majority holds that because the original
term of probation had expired by the time of the probation revocation hearing, the district
court lost jurisdiction over Defendant. For the reasons that follow, however, I would
conclude that the ordinary jurisdictional limit imposed by Section 31-20-8 does not apply
in DWI cases of this nature.

{21} The jurisdictional limitation of Section 31-20-8 is based on the presumption that a
probationer is ordinarily entitled to credit for time served on probation even if probation is
subsequently revoked. The no-credit provision in Section 66-8-102(S), however, is to be
applied “notwithstanding any provision of law to the contrary,” and it prohibits giving credit
for time served on probation to DWI offenders who violate their probation. Section 66-8-
102(S). Given this clear language, it appears that the Legislature intended that our district
courts first determine whether or not a probation violator is entitled to credit for time served
on probation. See Smith, 2004-NMSC-032, ¶ 10 (“Whenever possible, we must read
different [statutes] as harmonious instead of as contradicting one another.” (Internal
quotation marks and citation omitted)). After making that threshold determination, the
district court can then decide whether it still has authority under Section 31-20-8 to revoke
probation.

{22} In recognizing the persistent problem of repeat DWI offenders, the Legislature has
plainly chosen to treat DWI probation violators differently than others who violate their
conditions of probation. Specifically, by enacting Section 66-8-102(S), the Legislature has
determined that DWI offenders who violate probation will be deprived of probation credit
“notwithstanding any provision of law to the contrary.” Section 66-8-102(S). I believe it
would frustrate the Legislature’s intent if a DWI offender who violates probation effectively
receives credit for time served on probation for purposes of determining whether the
jurisdictional bar of Section 31-20-8 applies. See Rivera, 2004-NMSC-001, ¶ 12
(recognizing that statutes must be interpreted “to facilitate and promote the [L]egislature’s
accomplishment of its purpose” (internal quotation marks and citation omitted)). I conclude
that there should be no expiration of a DWI probationary sentence for purposes of triggering
the jurisdictional limitation of Section 31-20-8 until the district court has first had the
opportunity to decide whether a defendant is entitled to credit for time served on probation.

{23} In reaching the conclusion that there is no requirement that the revocation hearing
be held before the original sentence expires, we can find guidance from those cases in which
a probationer is denied credit while a fugitive from justice. See § 31-21-15(C) (providing
that the court may determine whether a probationer was a fugitive from justice and deny
probation credit on that basis); see also State v. Kenneman, 98 N.M. 794, 798, 653 P.2d 170,
174 (Ct. App. 1982) (acknowledging that “all time served on probation shall be credited
unless the defendant is a fugitive”). We have previously recognized that the Legislature
intended to ensure that probationers could not defeat the district court’s authority to revoke
probation by absconding from the jurisdiction, and have held that in those cases, the
probationary period is tolled while the probationer is a fugitive from justice. See Apache,
104 N.M. at 291, 720 P.2d at 710 (tolling the probationary period while the probationer is

                                               8
a fugitive from justice). Thus, even if a fugitive is not brought before the court before the
expiration of the original term of probation, the court may nevertheless deny the fugitive
credit for that period of time that the probationer was a fugitive from justice. Id. at 292, 720
P.2d at 711.

{24} Similarly, by enacting the no-credit provision that denies a DWI offender probation
credit upon a probation violation, the Legislature has effectively precluded a DWI offender
from avoiding the consequences of a probation violation if the revocation hearing is not held
before the original sentence expires since expiration of the sentence depends on credit for
time served on probation. To conclude otherwise would frustrate legislative intent and lead
to absurd results. See Herrera, 86 N.M. at 226, 522 P.2d at 78 (“We will not construe
statutes to achieve an absurd result or to defeat the intended object of the [L]egislature.”).
For example, if a DWI probationer violates probation near the end of the probationary
period, it would be nearly impossible to effectuate the Legislature’s intent to deprive that
offender of credit for time served on probation because a hearing most likely could not be
set before expiration of the original sentence. In contrast, a DWI offender who violates
probation earlier in the probationary term would be more likely to have probation revoked
and probation credit forfeited before the original sentence expires. Given these two very
possible scenarios, I respectfully disagree with the majority’s decision and can find no
reason why the Legislature would have intended such disparate results.

{25} Accordingly, to give effect to legislative intent, I believe that the no-credit provision
should be applied in a manner similar to the fugitive from justice provision. That is, when
a DWI offender is accused of violating probation, the probationary period is tolled until the
district court can hold a hearing to determine whether the probationer indeed violated
probation and has thereby forfeited credit for time previously served on probation. That
said, any petition to revoke probation nonetheless must be filed prior to expiration of the
period of the probation under the original sentence to avoid the jurisdictional bar of Section
31-20-8 and to assure the defendant of some degree finality. Applied to the circumstances
of this case, I conclude that the district court did not lose jurisdiction to consider the State’s
petition to revoke probation because the court first had to determine whether or not
Defendant violated probation and thereby forfeited any credit for time served on probation.
I would reverse the district court’s order of dismissal, which was based on the mistaken
belief that the court no longer retained jurisdiction over Defendant for purposes of revoking
his probation. I respectfully dissent.

                                                ____________________________________
                                                LINDA M. VANZI, Judge


Topic Index for State v. Ordunez, Docket No. 28,297

AE                              APPEAL AND ERROR
AE-RM                           Remand

                                                9
AE-SR   Standard of Review

CL      CRIMINAL LAW
CL-DG   Driving While Intoxicated

CA      CRIMINAL PROCEDURE
CA-PB   Probation
CA-RV   Revocation of Probation
CA-SN   Sentencing
CA-TL   Time Limitations

JD      JURISDICTION
JD-DC   District Court
JD-PR   Personal

ST      STATUTES
ST-IP   Interpretation
ST-LI   Legislative Intent
ST-RC   Rules of Construction




                    10
