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

 2 Opinion Number: __________

 3 Filing Date: August 20, 2015

 4 NO. 32,340

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 SEAN GODKIN,

 9       Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Michael E. Martinez, District Judge Pro Tempore


12 Hector H. Balderas, Attorney General
13 James W. Grayson, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Jorge A. Alvarado, Chief Public Defender
17 B. Douglas Wood III, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                        OPINION

 2 KENNEDY, Judge.

 3   {1}   Revocation proceedings, even if they include necessary competency

 4 determinations, must be completed prior to the expiration of the defendant’s

 5 probation, else the district court’s jurisdiction expires and the defendant must be

 6 discharged. Under NMSA1978, Section 31-20-8 (1977), a criminal defendant is fully

 7 discharged from further obligation to the court, and the district court loses jurisdiction

 8 over the case, whenever the period for which the sentence was suspended expires

 9 without being revoked. This loss of jurisdiction is unaffected by a defendant’s waiver

10 of the time limits within which a revocation hearing must be held under Rule 5-805

11 NMRA after a violation of probation is alleged. Staying revocation proceedings to

12 determine the defendant’s competency likewise does not toll the district court’s loss

13 of jurisdiction under Section 31-20-8.

14   {2}   In resolving this interlocutory appeal of the denial of Defendant’s motion to

15 dismiss for lack of jurisdiction following our remand, we also correct any

16 misconceptions generated by our memorandum opinion in State v. Godkin, No.

17 31,638, mem. op. (N.M. Ct. App. May 23, 2012) (non-precedential). In that opinion,

18 we reversed the district court’s denial of Defendant’s requested continuance to finish

19 evaluating Defendant’s competency prior to revoking his probation. Since the district

20 court could not revoke Defendant’s probation absent first resolving the question of
 1 Defendant’s competency, we also reversed the revocation, as well as the habitual

 2 offender enhancement imposed as a result of the revocation. We intended our remand

 3 to allow the court to accomplish such proceedings as might be appropriate to resolve

 4 the competency issue and the probation revocation. However, Defendant’s probation

 5 expired without a valid revocation, leaving the district court without jurisdiction to

 6 proceed any further. On remand, Defendant’s motion to dismiss should have been

 7 granted; we therefore remand the case to the district court for the discharge of the

 8 Defendant and closing of his case.

 9 I.      BACKGROUND

10   {3}   Defendant’s probation was scheduled to conclude on August 13, 2011. The

11 State filed a second motion to revoke probation toward the end of Defendant’s period

12 of probation in April 2011. A revocation hearing in June 2011 was continued twice

13 by Defendant, who waived the time limits in which to commence the hearing under

14 Rule 5-805(H) and (J). In the meantime, the case was assigned to a judge pro

15 tempore, who ordered a competency evaluation based on Defendant’s motion of July

16 8, 2011.

17   {4}   The results of the evaluation were to be presented to the district court during

18 a revocation hearing set for July 21, 2011. Yet, Defendant was not transported to his

19 July 18 evaluation appointment. Defendant’s attorney who had raised competency



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 1 resigned from the Public Defender’s Office and new counsel entered her appearance

 2 on July 12. On July 21, prior to the hearing commencing, new counsel requested a

 3 continuance, asserting that her lack of preparation and the incomplete evaluation

 4 would render her representation ineffective were she to proceed that day as

 5 Defendant’s attorney. The district court denied the motion to continue, saying

 6 Defendant’s previous attorney had “promise[d]” the court that evidence on

 7 competency would be available at that hearing. The probation revocation hearing

 8 commenced with the State’s first witness.

 9   {5}    Prior to Defendant’s cross-examination of this witness, the district court

10 expressed a changed desire to grant the continuance. The State informed the court that

11 its jurisdiction would lapse on August 12, 20111 and absent revoking Defendant’s

12 probation, he would be “scot-free.” Defense counsel agreed, stating that, “Once the

13 jurisdiction runs on this case, it’s done, whether it’s stayed for competency or not.”

14 After defense counsel stated that it was not certain whether the competency

15 evaluation could be performed before the deadline, the district court again denied the

16 motion to continue and proceeded with the hearing, explicitly stating that it was the



            1
17           The record and briefs lack a clear statement as to the date that the district court
18   lost jurisdiction over Defendant. Our previous opinion uses August 13, 2011, and
19   since the variations are of no consequence to our ruling, we adopt August 13, 2011
20   as the final date of Defendant’s probation, on which the district court’s jurisdiction
21   lapsed.

                                                 3
 1 continuance, not the motion regarding competency, that was denied. After closing

 2 arguments, the district court found Defendant competent:

 3         I find that in a previous proceeding[,] competency was raised, and the
 4         [c]ourt was given assurances that evidence would be presented on the
 5         issue of competence. There has been no evidence, other than raising the
 6         issue provided. There [have] been past determinations that . . .
 7         Defendant was competent[] and, therefore, for purposes of today’s
 8         hearing, I find [Defendant] is competent and has violated probation.

 9 An arraignment and habitual offender proceeding immediately followed this

10 determination. The district court entered its order on August 11, 2011, revoking

11 Defendant’s probation and sentencing him to an additional eleven years as an habitual

12 offender.

13   {6}   Defendant appealed the district court’s denial of his motion to continue, as well

14 as the sentence enhancement. We issued the memorandum opinion referenced above.

15 In that opinion, we acknowledged the “lapse in jurisdiction on August 13, 2011,”

16 Godkin, 31,368, mem. op. at 4, and held that the district court abused its discretion

17 in refusing to grant a continuance for the competency evaluation. We reversed the

18 orders of the district court and remanded for a new hearing. Our remand was

19 intended to permit three things: “for Defendant to expressly waive the adjudicatory

20 deadline, for the competency evaluation to take place, and for a new revocation

21 hearing, if applicable.” Id. at 5. Our mandate issued on July 18, 2012.




                                               4
 1   {7}   On the July 19, 2012 hearing on remand, the district court repeated our

 2 instructions and called on Defendant to waive adjudicatory time limits, but defense

 3 counsel stated that there no longer remained anything waivable, because jurisdiction

 4 ran the previous August, and the commencement of a revocation hearing under Rule

 5 5-805 was no longer the legal question. The State responded that it had previously

 6 argued, as noted in our memorandum opinion (Id. at 4), that Rule 5-805 would no

 7 longer be applicable were jurisdiction to lapse on August 13. It maintained that we

 8 knew of the jurisdictional problem, and “just kind of disregarded it.” The State

 9 maintained that even if the Defendant did not waive the deadline, we had remanded

10 for at least a new sixty-day period under Rule 5-805 within which to have an

11 adjudicatory probation revocation hearing. At the State’s request, and in light of our

12 second directive to have an evaluation performed, the district court stayed

13 proceedings pending a new evaluation of Defendant’s competency. The district court

14 scheduled another hearing more than a month later, to allow for the evaluation to be

15 completed.

16   {8}   Defendant filed a motion to dismiss for lack of jurisdiction, arguing that the

17 August 13, 2011, time limit was jurisdictional and could not be waived, and the

18 absence of a valid probation revocation hearing prior to the probationary period

19 expiring had divested the district court of jurisdiction. The State conversely argued



                                              5
 1 that by remanding for a hearing “if applicable,” we had recognized that the

 2 competency evaluation might postpone further hearings, and had tacitly

 3 acknowledged that jurisdiction could be extended following defendant’s waiver of

 4 time limits under Rule 5-805. The district court denied Defendant’s motion, but

 5 certified the matter for an interlocutory appeal, which we granted.

 6 II.     DISCUSSION

 7   {9}   A district court’s authority to sentence an offender is conferred by statute, is

 8 an issue of subject matter jurisdiction, and cannot be waived. State v. Frost, 2003-

 9 NMCA-002, ¶ 8, 133 N.M. 45, 60 P.3d 492. Section 31-20-8 states: “Whenever the

10 period of suspension [of sentence] expires without revocation of the order, the

11 defendant is relieved of any obligations imposed on him by the order of the court and

12 has satisfied his criminal liability for the crime.” This section was intended by the

13 Legislature to limit the district court’s jurisdiction over a defendant and terminate his

14 criminal liability when his probation term expires. State v. Travarez,

15 1983-NMCA-003, ¶ 4, 99 N.M. 309, 657 P.2d 636. Because a defendant has a

16 reasonable expectation of finality in his case, once the sentence is completely served,

17 the trial court loses jurisdiction over it, including any ability to enhance the sentence.

18 See State v. Roybal, 1995-NMCA-097, ¶ 8, 120 N.M. 507, 903 P.2d 249. Here, we




                                               6
 1 must determine whether the probationary period can be tolled, or whether

 2 Defendant’s motion to dismiss for lack of jurisdiction was erroneously denied.

 3 A.       Standard of Review

 4   {10}   We review the district court’s application of Section 31-20-8 de novo. See State

 5 v. Lara, 2000-NMCA-073, ¶ 4, 129 N.M. 391, 9 P.3d 74 (stating that the

 6 interpretation of a statute is an issue of law to be reviewed de novo). Similarly, to the

 7 extent it may apply, we also review the application of Rule 5-805(J) de novo. See

 8 State v. Maestas, 2007-NMCA-155, ¶ 28, 143 N.M. 104, 173 P.3d 26.

 9 B.       We Have Not Previously Decided the District Court’s Jurisdiction

10   {11}   The State urges us to continue with what it characterizes as an “issue of

11 jurisdiction already implicitly resolved in the first appeal” based on the law of the

12 case doctrine. See State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010,

13 ¶¶ 20-27, 145 N.M. 769, 205 P.3d 816 (outlining law of the case doctrine). If

14 applicable, this doctrine is one that is applied with flexibility. See also Reese v. State,

15 1987-NMSC-110, ¶ 5, 106 N.M. 505, 745 P.2d 1153 (“[T]he law of the case is merely

16 one of practice or court policy, and not of inflexible law, so that appellate courts are

17 not absolutely bound thereby, but may exercise a certain degree of discretion in

18 applying it[.]”(internal quotation marks and citation omitted)).




                                                7
 1   {12}   The State characterizes the decision reached in our memorandum opinion as

 2 an implicit determination that jurisdiction did not lapse on August 13, 2011. This

 3 assertion is grounded in the opinion’s pointing to defense counsel’s willingness at

 4 that point to waive the sixty-day limit within which adjudicatory hearings on

 5 revocation must be commenced under Rule 5-805(J) and reversing so Defendant

 6 could again “expressly waive the adjudicatory deadline” for the probation revocation

 7 and proceed with the competency determination. Unfortunately, our focus on the

 8 probation adjudication deadline and competency process obscured the issue of

 9 jurisdiction itself. Although we said that Defendant’s evaluation scheduled for

10 August 3 was ten days prior to the “lapse in jurisdiction on August 13, 2011[,]” in the

11 next paragraph we called it the “adjudicatory deadline” and later the “[NMRA] Rule

12 5-805(H) deadline on August 13.” Godkin, No. 31,368, mem. op. at 4-5.

13   {13}   Also, the attention given in our memorandum opinion to the mandatory stay of

14 proceedings required when a competency evaluation is ordered, missed “the lapse in

15 jurisdiction on August 13” that we had noted earlier (emphasis added). The State now

16 uses this discrepancy between adjudicatory and jurisdictional time limits in our

17 opinion to conclude that we implicitly or explicitly determined jurisdiction could be

18 waived, or that because of Defendant’s waiver there would not be a bar to the district

19 court’s continued jurisdiction on remand.



                                              8
 1   {14}   Because jurisdiction cannot be waived, Frost, 2003-NMCA-002, ¶ 8, there is

 2 no “law of the case” here. Farmers’ State Bank of Texhoma, Okla. v. Clayton Nat’l

 3 Bank, 1925-NMSC-026, ¶ 24, 31 N.M. 344, 245 P. 543 (stating that, “when we

 4 conclude that a former decision is erroneous, and we still have the opportunity to

 5 correct it as affecting those parties whose interests are concerned in the original

 6 ruling, we should apply the law of the land rather than the law of the case”). Our

 7 mandate requiring Defendant “to expressly waive the adjudicatory deadline” is

 8 ineffectual if the district court’s continued jurisdiction to hear the case has ended.

 9 C.       The Plain Language of Section 31-20-8 Divests the District Court of
10          Jurisdiction When A Probationary Term Expires

11   {15}   When a defendant’s probation term ends without being revoked, the defendant

12 is relieved of any obligations imposed by the court and has completely satisfied all

13 criminal liability for the crime. See § 31-20-8; State v. Apache, 1986-NMCA-051,

14 ¶ 9, 104 N.M. 290, 720 P.2d 709. The jurisdictional nature of the statute is clear in

15 our holding in Lara, where owing to Section 31-20-8, we held that a “court lacks

16 further jurisdiction over the defendant, even though the motion to revoke the sentence

17 has . . . been filed[]” before the end of the probation term. Lara, 2000-NMCA-073,

18 ¶ 11. Our Supreme Court, agreeing with this proposition, has similarly held a district

19 court has no jurisdiction to hear a pending motion to revoke “once the probationary

20 period has expired[.]” State v. Ordunez, 2012-NMSC-024, ¶ 9, 283 P.3d 282.


                                              9
 1   {16}   Defendant cannot waive the expiration of the district court’s jurisdiction. See

 2 Frost, 2003-NMCA-002, ¶ 8. Our Supreme Court observed that this has been the case

 3 “[f]or decades[.]” Ordunez, 2012-NMSC-024, ¶ 9. Although revoking probation after

 4 the maximum term of suspension had expired was once permitted, the enactment of

 5 Sections 31-20-8 and -9 eliminated the district courts’ power to do so. See Travarez,

 6 1983-NMCA-003, ¶ 4 (recognizing that statutes and previous case law permitting the

 7 practice had been abrogated by the Legislature). A bright-line rule promotes the

 8 strong policy interest that “defendants who have completed their sentences have a

 9 reasonable expectation in the finality of their sentences[.]” State v. Davis, 2007-

10 NMCA-022, ¶ 10, 141 N.M. 205, 152 P.3d 848. The State cautions us that

11 interpreting Section 31-20-8 to divest the district court of jurisdiction when the

12 probationary period expires leaves the court without “the power to monitor the

13 probationer for ‘all’ of the term of probation[.]” The State is incorrect; no provision

14 exists to toll a probation term absent wrongful actions by the defendant because after

15 it expires, there is no more “term of probation” and the district court has no

16 jurisdiction to revoke a term of probation that no longer exists.

17   {17}   This jurisdictional provision also stands apart from flexible time limits to

18 commence trial, or waivable periods within which to commence a probation

19 revocation hearing. See, e.g., Rule 5-805(H), (J). The State argues based on Trujillo



                                              10
 1 v. Serrano, 1994-NMSC-024, ¶ 14, 117 N.M. 273, 871 P.2d 369, that the

 2 jurisdictional line drawn by Section 31-20-8 is “a ‘more equivocal’ type of

 3 jurisdiction[.]” The implied “discretion to overlook technical violations” conferred

 4 by Trujillo, 1994-NMSC-024, ¶ 13, does not extend to loosening the grip of a statute

 5 that explicitly ends a district court’s jurisdiction to revoke probation or enhance a

 6 sentence.

 7   {18}   Next, contending that the district court’s jurisdiction to revoke Defendant’s

 8 probation, is “not a true jurisdictional limit” and should be subject to waiver, the State

 9 points to our opinion in State v. Baca, 2005-NMCA-001, 136 N.M. 667, 104 P.3d

10 533. In Baca, the defendant challenged the district court’s probation revocations and

11 imposition of new probation periods based on NMSA 1978, Sections 31-21-15(B)

12 (1989) and 31-20-5(A) (2004), Baca, 2005-NMCA-001, ¶ 8. Baca involved re-

13 imposing new terms of probation within the time allowed by Section 31-20-8. Baca,

14 2005-NMCA-001, ¶ 12, and does not apply here. Against this legal background, we

15 now consider propriety of the district court’s denial of Defendant’s motion to dismiss.

16 D.       The Stay of Proceedings Required to Determine Competency Does Not
17          Toll Probation

18   {19}   The State argues that Section 31-9-1, by staying pending proceedings in the

19 court, also operates to toll defendant’s proration. Section 31-9-1, though staying

20 proceedings for competency determinations, is silent as to tolling jurisdiction. The


                                               11
 1 state’s argument is otherwise unsupported by any authority or circumstance apart

 2 from a frail analogy to being a fugitive. In the absence of any other authority that

 3 might support tolling, we assume no such authority exists. See State v. Casares, 2014-

 4 NMCA-024, ¶ 18, 318 P.3d 200. The sole basis in law for tolling a probation term is

 5 predicated on a wrongful act of absconding committed by the defendant. See § 31-21-

 6 15(C) (establishing fugitive status and allowing time spent as a fugitive to be

 7 deducted from time spent on probation); State v. Sosa, 2014-NMCA-091, ¶ 11, 335

 8 P.3d 764 (noting that Section 31-21-15(C) is based on the maxim that “one should not

 9 benefit from one’s own wrongdoing”). A defendant about whom competency has

10 been raised, in a manner that has resulted in a court issuing an order for such an

11 evaluation, has engaged in no wrongdoing, nor has absconded, but has unequivocally

12 remained under the power of the court. Such a person cannot be adjudicated while his

13 competency is in doubt and he is under the court’s protection. A defendant in this

14 position has not done anything to justify tolling his probation as a penalty for any

15 delay. We conclude that the Legislature’s directive to stay proceedings while

16 competency is determined does not affect the running of time spent on probation or,

17 as a result, the jurisdictional time limit in Section 31-20-8, and decline to adopt a

18 position permitting its tolling.




                                             12
 1 E.       Absent A Valid Revocation of Probation, The District Court Was Without
 2          Jurisdiction To Impose An Habitual Offender Enhancement

 3   {20}   A person may be charged as an habitual offender “so long as the [district] court

 4 retains jurisdiction over the defendant.” March v. State, 1989-NMSC-065, ¶ 5, 109

 5 N.M. 110, 782 P.2d 82 (stating that the actual time during which the state may

 6 enforce a habitual offender enhancement is limited to the time before an offender has

 7 an objectively reasonable expectation of finality in the sentence). We held that where

 8 a defendant “[C]ompletely serves the valid underlying sentence before the state

 9 proves he is a habitual offender, he has extinguished his criminal liability and there

10 is no sentence left to enhance.” State v. Gaddy, 1990-NMCA-055, ¶ 8, 110 N.M. 120,

11 792 P.2d 1163. “Once a defendant has completely served his or her underlying

12 sentence, the [district] court loses jurisdiction to enhance that sentence, even if the

13 [s]tate filed the supplemental information before the defendant finished serving the

14 underlying sentence.” Roybal, 1995-NMCA-097, ¶ 4. As discussed above, the hearing

15 during which the district court found Defendant to be an habitual offender occurred

16 when all proceedings should have been stayed. Because the enhancement hearing

17 should never have commenced, and the jurisdictional time has now expired, we also

18 reverse the habitual enhancement of Defendant’s sentence.




                                               13
1 III.     CONCLUSION

2   {21}   Since the district court lost jurisdiction over Defendant as of August 13, 2011,

3 pursuant to Section 31-20-8, it was without jurisdiction to proceed further in this case

4 after that date. Accordingly, we reverse the district court’s denial of Defendant’s

5 motion to dismiss and remand for final discharge of Defendant.

6   {22}   IT IS SO ORDERED.


7                                                  _______________________________
8                                                  RODERICK T. KENNEDY, Judge


9 WE CONCUR:



10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge



12 _________________________________
13 J. MILES HANISEE, Judge




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