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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                      NO. 28,919

 5 RICHARD AMARO,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Karen L. Townsend, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Hugh W. Dangler, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant



17                              MEMORANDUM OPINION

18 CASTILLO, Judge.

19        Defendant appeals from the district court’s order that affirms his magistrate

20 judgment and sentences for driving with a revoked/suspended license and for failing
 1 to report to the detention center. [RP 2, 3, 52] Defendant appeals specifically from

 2 the district court’s affirmance of his May 12, 2008 magistrate judgment and 364-day

 3 sentence based on his failure to report to the detention center. [RP 2; DS 2-3] Our

 4 second notice (1) viewed the 364-day sentence as the result of the magistrate judge’s

 5 decision to hold Defendant in indirect contempt based on his failure to report to the

 6 San Juan Detention Center as required by the April 8, 2008 commitment order [RP 14-

 7 15]; and (2) proposed to hold that Defendant was not afforded the proper procedures

 8 for contempt. See generally NMSA 1978, § 35-3-9 (1991) (providing that a

 9 magistrate has jurisdiction to punish for contempt for disobedience of any lawful order

10 of the court); Rule 6-111(B) NMRA (providing that a contempt shall be punished only

11 after notice and hearing). The State filed a timely response to our second notice,

12 providing that it is unable to offer any facts or law to challenge the proposed

13 disposition and that it agrees with the analysis and approach taken in the second

14 notice.

15        Accordingly, based on the reasons set forth in our second notice, we reverse the

16 district court’s affirmance of Defendant’s May 12, 2008, judgment and sentence, and

17 remand to the district court for Defendant to be afforded an appropriate de novo

18 contempt proceeding.

19        IT IS SO ORDERED.


                                              2
1                                        ________________________________
2                                        CELIA FOY CASTILLO, Judge

3 WE CONCUR:



4 ________________________________
5 JAMES J. WECHSLER, Judge



6 ________________________________
7 ROBERT E. ROBLES, Judge




                                     3
 1                                        DISCUSSION
 2   TO:            JUDGE CASTILLO
 3   FROM:          LEE ANN MCMURRY MOYA
 4   RE:            STATE V. AMARO, CT.APP.NO. 28,919
 5   DATE:          JUNE 5, 2009
 6           I recommend issuance of a memorandum opinion that reverses the district
 7   court’s affirmance of Defendant’s May 12, 2008, judgment and sentence, and remands
 8   to the district court for Defendant to be afforded an appropriate contempt proceeding.
 9           As you recall, this is the case wherein Defendant appeals from the district
10   court’s affirmance of his magistrate sentence for “failure to check into the San Juan
11   Detention Center.” Rather than view the judgment at issue as a refashioning of
12   Defendant’s initial sentence for driving with a revoked license, this Court instead
13   viewed the judgment to be the result of the magistrate judge’s decision to hold
14   Defendant in contempt based on his failure to check into the detention center.
15   Problematically, however, Defendant was not afforded the appropriate contempt
16   proceedings below. For this reason, our second notice proposed to reverse and
17   remand to the district court with instructions that Defendant be afforded a de novo
18   contempt proceeding. The State filed a timely response [Ct.App.File, white clip],
19   providing that it agrees with the proposed disposition. For this reason, I recommend
20   issuance of the attached memorandum opinion that reverses and remands.
21           Lastly, in light of our previous discussions whether we should remand to the
22   magistrate court or district court, I think that City of Las Cruces v. Sanchez, 2007-
23   NMSC-042, 142 N.M. 243, 164 P.3d 942, supports the decision to remand to the
24   district court. In that case, the municipal court judge mid-trial ruled that the
25   defendant’s arrest was illegal and dismissed the charges. The City appealed to the
26   district court, which dismissed the City’s appeal in the mistaken belief that the City
27   had no right to appeal. The Supreme Court held that the district court did have
28   jurisdiction to consider the appeal, and reversed and remanded to the district court for
29   a trial de novo. I think Sanchez is significant because the Court remanded to the
30   district court for a de novo trial, even though a trial on the merits did not come to
31   fruition in the municipal court. Similarly, in the present case, I think it is appropriate
32   to remand to the district court for a de novo contempt hearing, even though such
33   hearing had not been held (although the need for such was argued, RP 63-64, 68) in
34   the magistrate court. See also State v. Foster, 2003-NMCA-099, ¶ 9, 134 N.M. 224,
35   75 P.3d 824 (recognizing that “[i]n a de novo appeal, in contrast to appeals on the
36   record, a district court conducts a new trial as if the trial in the lower court had not
37   occurred”). The matter of which court to remand to is confusing, but fortunately
38   neither party disputes that district court is the appropriate forum.
39
