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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellant, 8

v. NO. 29,328 9 PETER ANTHONLY EPISCOPO, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Douglas Driggers, District Judge 13 Gary K. King, Attorney General 14 Anita Carlson, Assistant Attorney General 15 Santa Fe, NM 16 for Appellant 17 Hugh Dangler, Chief Public Defender 18 Eleanor Brogan, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellee 21 MEMORANDUM OPINION 22 VIGIL, Judge. 23 The State appeals from the district court’ s denial of its petition for an extension 241 All references to Rule 5-604 herein refer to the rule as amended by the Supreme Court’s Order No. 08-8300-052 en tered on November 24, 2008. This Court does not rely on any subsequent amendments to Rule 5-604 for the purpose of this opinion. 2 of time pursuant to Rule 5-604 NMRA 1 and dismissal of the charges against 1 Defendant. This Court has issued two propos ed dispositions in this matter, and both 2 parties have had the opportunity to respond. Having given due consideration to the 3 parties’ arguments, we hereby affirm. To the extent the State has raised new issues 4 in its memorandum in opposition, we treat th e inclusion of these new arguments as a 5 motion to amend the docketing statement, and we deny the motion. 6 DISCUSSION 7 In this Court’s first calendar notice, weproposed summary reversal on the basis 8 that, due to the delay in De fendant being appointed a pub lic defender and the State’s 9 resulting inability to negotiate a plea, and dueto the purported failure of the district 10 court to set the matter for trial, the State had demonstrated good cause for an extension 11 of time. Defendant filed a memorandum inopposition to this Court’s proposed ruling, 12 in which Defendant asserted that delays associated with plea negotiations did not 13 provide good cause to support an extens ion of time. [Def.’s MIO 7-8 (citingState v. 14 Maddox , 2008-NMSC-062, ¶ 26, 145 N.M. 242, 195 P.3d 1254 (stating that “the State 15 is not excused in its burden to timely try a defendant while waiti ng for defense counsel 163 to respond to a plea offer . . . . The State must affirmatively seek to move the case to 1 trial, even while plea negotiations are pending”); State v.Yates, 2008-NMCA-129, ¶ 2 8, n.8, 144 N.M. 859, 192 P.3d 1236, cert. granted , State v. Saavedra , 2008- 3 NMCERT-009, 145 N.M. 258, 196 P.3d 489 (“Since plea negotiations are a routine 4 part of modern criminal procedure, a si x-month period presumably was chosen by our 5 Supreme Court because it allows the State an adequate amount of time both to engage 6 in plea negotiations and to prepare for trial. ”). Defendant also disputed the State’s 7 assertion that the district court has a polic y in which it takes it upon itself to set a trial 8 date and discourages requests for a trial setting from the parties, and that the district 9 court failed to set a trial date in a timely fa shion in this case. [Def.’s MIO 4-5] We 10 found Defendant’s arguments persuasive , including Defendant’s reliance on Yates , 11 and issued a second calendar notice proposing to affirm. The State has filed a 12 memorandum in opposition to this Court’s second calendar notice, arguing that 13 Defendant’s delay in getting an attorneyconstituted good cause for an extension of 14 time, and reasserting its claim that the delay in getting a trial setting in district court 15 was due to the district court policy articulated above. The State also raises new 16 arguments contending that the six-month period should have restarted upon 17 Defendant’s arraignment in district court and that th e district court erred in 184 “automatically” dismissing the charges agai nst Defendant without considering lesser 1 sanctions. We address these arguments below. 2 The State Did Not Demonstrate Good Cause 3 In its memorandum in opposition, the State attempts to distinguish the cases 4 relied on by this Court in its second no tice of proposed disposition, including Yates , 5 to argue that Defendant’s case presented challenges that did not permit the State to 6 bring the case to trial within six-months. Specifically, the State argues that the delay 7 caused by the appointment of defense counsel and the failure of the district court to 8 promptly set a trial date bring this case outside the scope of Yates . We disagree. 9 Yatesreinforces our previous cases asserting that the burden is on the State to 10 monitor criminal cases and ensure that trial commences prior to the running of the six11 month rule. See2008-NMCA-129, ¶ 8 (stating that “the State could monitor 12 misdemeanor DWI cases filed in magistrate court to insure that they are dismissed and 13 refiled in district court with sufficient time remaining for the district court to dispose 14 of the case within six months of the triggering event in magistrate court”); id. ¶ 13 15 (“A six-month rule means six months, not six months plus some additional period to 16 be determined on a case-by-case basis.”); see also State v. Granado , 2007-NMCA17 058, ¶ 14, 141 N.M. 575, 158 P.3d 1018 (“The State has the burden of bringing a 18 defendant to trial within the time re quired by the rule.”). Furthermore, Yatescautions 195 against allowing the restarting of the rulewhen the reason asserted for doing so is 1 largely one of the State’s own making. See 2008-NMCA-129, ¶¶ 8, 11. 2 Here, the State contends that the delay in appointing defense counsel was a 3 result of Defendant’s inaction. However, the State was aware that over three months 4 had passed and only two-and-a- half months remained when it chose to dismiss the 5 charges in magistrate court and refile in district court after Defendant refused the 6 State’s plea offer. Thus, th e State was aware that it onl y had two-and-a-half months 7 to bring Defendant to trial in district c ourt, as it had expressed no reason that would 8 permit the rule to restart, and still chos e to dismiss the magistrate proceedings. See 9 id. ¶¶ 1, 5 (holding that when prosecutors filea criminal complaint in magistrate court, 10 “knowing and intending that if the [d]efendant exercise[d] his right to a trial, the 11 complaint [would] be dismisse d and refiled in district c ourt,” the “refiled charges . . 12 . are presumptively a continuation of the original magistrate court prosecutions for 13 purposes of the six-month rule”). The St ate does not appear to have argued below, 14 and does not argue before this Court, thatthe delay in Defendant’s appointment of 15 counsel would have hindered its ability to bring Defendant to trial within the six16 month period in magistrate court. Thus, the State has not demonstrated that the need 17 for extension was not a result of its decision to dismiss the charges in magistrate court 18 and refile in district c ourt. Consequently, it would undermine our holding in Yates , 196 where the State has not demonstrated good cause under Yatesto restart the rule, to 1 allow for extensions of time where the State has not demonstrated that the need for an 2 extension did not arise from the dismissal of the magistrate proceedings and refiling 3 of charges in district court. We see no difference between the relief requested by the 4 State—the granting of a six-month extension—and the restarting of the rule to provide 5 another six-month period. Thus , we propose to affirm the district court’s denial of the 6 State’s motion, as the State has not demonstr ated that this case does not fall within the 7 purview of Yates. 8 To the extent the State argues that the si x-month rule anticipates that extensions 9 will be granted and the six-month period extended, we do not disagree. However, 10 Yatesaids us in determining whether good cause exists for the granting of an 11 extension pursuant to Rule 5-604, and based on this Court’s reading of Yates , we 12 conclude that good cause does not exist under the circumstances of this case. 13 Motion to Amend the Docketing Statement 14 To the extent the State raises additional arguments in support of reversal in its 15 memorandum in opposition, we treat these arguments as a motion to amend the 16 docketing statement. The essential requirements to show good cause for our 17 allowance of an amendment to an appellant’s docketing st atement are: (1) that the 18 motion be timely, (2) that the new issue s ought to be raised was either (a) properly 197 preserved below or (b) allowed to be rais ed for the first time on appeal, and (3) the 1 issues raised are viable. See State v. Moore , 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. 2 App. 1989), overruled on other grounds by State v. Salgado , 112 N.M. 537, 817 P.2d 3 730 (Ct. App. 1991). Here, the State ha s raised two new issues: (1) that Yateswas 4 incorrectly decided and the State was th erefore entitled to a new six-month period 5 commencing with Defendant’s arraignment in di strict court, and (2) that the district 6 court erred in entering an “automatic” di smissal of Defendant’s charges due to a 7 recent amendment to Rule 5-604 granting the district court the discretion to impose 8 lesser sanctions. Having considered these i ssues within the context of our standard 9 for allowing amendments to the docketing statement, we deny the State’s motion to 10 amend. 11 To the extent the St ate contends that Yateswas incorrectly decided and that in 12 accordance with cases prior to Yates the State was entitled to a new six-month period 13 commencing with Defendant’s arraignment in district court, the State has not 14 indicated how or where this issue was raised below. See State v. Smith , 102 N.M. 350, 15 353, 695 P.2d 834, 837 (Ct. App. 1985) (denying the defendant’s motion to amend for 16 failure to state all facts material to consideration of the issue and failure to 17 demonstrate how the issue was preserved), overruled on other grounds by Gillespie 18 v. State , 107 N.M. 455, 760 P.2d 147 (1988). We further note that, although the 198 Supreme Court has granted certiorari with respect to Yates , and the State argues that 1 recent Supreme Court amendments to Rule 5-604 are inconsistent with the analysis 2 in Yates , Yatesis the latest pronouncement from this Court and the Supreme Court has 3 not reversed or overruled this Court’s decision in Yates . Until the Supreme Court 4 does so, Yatesremains controlling precedent on whic h our courts are entitled to rely. 5 See Arco Materials v. N.M. Taxation & Revenue Dep’t , 118 N.M. 12, 14, 878 P.2d 6 330, 332 (Ct. App. 1994), rev’d on other grounds by Blaze Constr. Co., Inc. v. 7 Taxation & Revenue Dep’t , 118 N.M. 647, 884 P.2d 803 (1994). Finally, even if the 8 issue was preserved, the State has not demons trated that this issue is viable, as the 9 State has not articulated a basis under Yatesthat would permit a new six-month period 10 to commence with Defendant’s arraignment in magistrate court. 11 Furthermore, to the extent the State c ontends that because of the amendments 12 to Rule 5-604, the district court did not po ssess the authority to enter an “automatic” 13 dismissal of Defendant’s criminal charges without first considering lesser sanctions, 14 we similarly deny the State’s motion to amend its docketing statement to include this 15 issue. The State points out that there is no indication that the district court considered 16 alternatives to dismissal before enteri ng its order dismissing Defendant’s charges. 17 While we recognize that a failure to exerci se discretion conferre d by law is, of itself, 18 an abuse of discretion, see Sandoval v. Chrysler Corp. , 1998-NMCA-085, ¶ 12, 125 199 N.M. 292, 960 P.2d 834 (discussing trial court’ s failure to rule on the defendant’s 1 motion for remittitur, and holding that the trial judge’s failure to exercise his 2 discretion was, in itself, re versible error), the State has again not indicated how this 3 issue was preserved below. See Smith , 102 N.M. at 353, 695 P.2d at 837. 4 Consequently, we deny the State’s motion to amend its docketing statement. 5 CONCLUSION 6 For the reasons stated above and in this Court’s second notice of proposed 7 disposition, we affirm the district court’s dismissal of the charges against Defendant. 8 We further deny the State’s motion to amend its docketing statement. 9 IT IS SO ORDERED. 10

___________________ _____________ 11 MICHAEL E. VIGIL, Judge 12

WE CONCUR: 13

______________________________________ 14 JAMES J. WECHSLER, Judge 1510 ______________________________________ 1 LINDA M. VANZI, Judge 2