 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   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. 27,731

10 FRANK OZIEL GARZA,

11          Defendant-Appellant.



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

14 Gary K. King, Attorney General
15 Anita Carlson, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18   The Pickett Law Firm
19   Mollie C. McGraw
20   Mark L. Pickett
21   Las Cruces, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 BUSTAMANTE, Judge.
 1        This case came back to this Court on remand from the New Mexico Supreme

 2 Court to address the following issue that was not reached in our earlier memorandum

 3 opinion: whether the district court erred in denying Defendant’s motion to dismiss

 4 based on a violation of the time limits for bringing his case to trial under Rule 6-506

 5 NMRA. [DS 5] We proposed to reverse on this issue. The State has responded with

 6 a memorandum in opposition. We reverse.

 7        “Rule 6-506 requires a defendant’s trial to commence within one-hundred

 8 eighty-two days of a triggering event, absent permissible extensions.” See State v.

 9 Carreon, 2006-NMCA-145, ¶ 6, 140 N.M. 779, 149 P.3d 95, cert. quashed, 2007-

10 NMCERT-008, 142 N.M. 436, 166 P.3d 1090. The State may obtain an extension by

11 a motion filed within ten days of the expiration of the applicable time limits; however,

12 the State must show exceptional circumstances beyond the control of the State or the

13 trial court. See State v. Dominguez, 2007-NMCA-132, ¶ 7, 142 N.M. 631, 168 P.3d

14 761 (discussing extensions for the district court’s six-month rule as provided in Rule

15 5-604(E) NMRA). The district court’s application of the six-month rule is an issue

16 we review de novo. Id. ¶ 8.

17        In this case, Defendant was arraigned in magistrate court on July 6, 2006. [DS

18 1] The State filed a notice of dismissal and re-filed the charges in district court in


                                              2
 1 November 2006. [DS 2] On the day of trial, May 4, 2007, Defendant moved to dismiss

 2 the charges, arguing that the six-month rule should run from the applicable magistrate

 3 court date, instead of being triggered by events in the district court. [DS 4] The district

 4 court denied Defendant’s motion. [DS 4]

 5        Defendant’s issue is governed by this Court’s decision in State v. Yates, 2008-

 6 NMCA-129, 144 N.M. 859, 192 P.3d 1236, cert. granted by State v. Savedra, 2008-

 7 NMCERT-009, 145 N.M. 258, 196 P.3d 489. In Yates, this Court adhered to a

 8 previous conclusion in Carreon that “the mere existence of the prosecutorial policy

 9 of dismissing every magistrate court case that is not settled before the six-month

10 deadline is insufficient to sustain the State’s burden” to overcome a presumption that

11 re-filed charges are a continuation of the original magistrate court prosecutions for

12 purposes of the six-month rule. Id. ¶ 11 (internal quotation marks and citation

13 omitted). The circumstances in this case appear to be similar to those in Yates. Id.

14 (noting procedural history). As such, the six-month rule in this case commenced from

15 the date of arraignment in magistrate court, requiring dismissal. Rule 6-506(C)

16 permits extensions of time to avoid dismissal. However, there is no indication that the

17 State timely sought an extension and made the requisite showing. See Rule 6-506(D)

18 NMRA. Accordingly, our calendar notice proposed to reverse.


                                                3
 1        In its memorandum in opposition, the State argues that Yates was incorrectly

 2 decided. [MIO 2] However, Yates is the latest pronouncement from this Court, and

 3 although certiorari has been granted, the Supreme Court has not reversed or overruled

 4 this Court’s decision in Yates. Until the Supreme Court does so, Yates remains

 5 controlling precedent on which our courts are entitled to rely. See Arco Materials v.

 6 TRD, 118 N.M. 12, 14, 878 P.2d 330, 332 (Ct. App. 1994), rev’d on other grounds by

 7 Blaze Constr. Co., Inc. v. Taxation & Revenue Dep’t, 118 N.M. 647, 884 P.2d 803

 8 (Ct. App. 1994).

 9        The State also argues that Defendant failed to preserve the issue. [DS 3] We

10 disagree. As indicated above, Defendant argued that the magistrate date should

11 control the six-month time frame. [DS 4] Next, the State argues that Defendant waived

12 the issue by participating in hearings after the rule would have run. [MIO 6]

13 However, parties are not mandated to pursue interlocutory relief when they believe

14 the trial court has erred. Finally, the State argues that Yates should not be applied

15 retroactively. [MIO 8] “An appellate court's consideration of whether a rule should be

16 retroactively or prospectively applied is invoked only when the rule at issue is in fact

17 a “‘new rule’.” State v. Mascarenas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d

18 1221. As we stated in Yates, we believe that the position taken by the State on the


                                              4
1 merits departs from established case law and the language of the rule. 2008-NMCA-

2 129, ¶¶ 12-15.

3       For the reasons set forth above, we reverse.

4       IT IS SO ORDERED.



5
6                                       MICHAEL D. BUSTAMANTE, Judge

7 WE CONCUR:


8
9 CELIA FOY CASTILLO, Judge


10
11 LINDA M. VANZI, Judge
12




                                           5
