1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellant,

9 v. NO. 29,328

10 PETER ANTHONLY EPISCOPO,

11 Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

13 Douglas Driggers, District Judge

14 Gary K. King, Attorney General

15 Anita Carlson, Assistant Attorney General

16 Santa Fe, NM

17 for Appellant

18 Hugh Dangler, Chief Public Defender

19 Eleanor Brogan, Assistant Appellate Defender

20 Santa Fe, NM 

21 for Appellee

22 MEMORANDUM OPINION

23 VIGIL, Judge.

24 The State appeals from the district court’s denial of its petition for an extension
1

All references to Rule 5-604 herein refer to the rule as amended by the

Supreme Court’s Order No. 08-8300-052 entered on November 24, 2008. ThisCourt

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 NMRA1 1 and dismissal of the charges against

2 Defendant. This Court has issued two proposed dispositions in this matter, and both

3 parties have had the opportunity to respond. Having given due consideration to the

4 parties’ arguments, we hereby affirm. To the extent the State has raised new issues

5 in its memorandum in opposition, we treat the inclusion of these new arguments as a

6 motion to amend the docketing statement, and we deny the motion.

7 DISCUSSION

8 In this Court’s first calendar notice, we proposed summary reversal on the basis

9 that, due to the delay in Defendant being appointed a public defender and the State’s

10 resulting inability to negotiate a plea, and due to the purported failure of the district

11 court to set the matter for trial, the State had demonstrated good cause for an extension

12 of time. Defendant filed a memorandum in opposition to this Court’s proposed ruling,

13 in which Defendant asserted that delays associated with plea negotiations did not

14 provide good cause to support an extension of time. [Def.’s MIO 7-8 (citing State v.

15 Maddox, 2008-NMSC-062, ¶ 26, 145 N.M. 242, 195 P.3d 1254 (stating that “the State

16 is not excused in its burden to timely try a defendant while waiting for defense counsel
3

1 to respond to a plea offer . . . . The State must affirmatively seek to move the case to

2 trial, even while plea negotiations are pending”); State v.Yates, 2008-NMCA-129, ¶

3 8, n.8, 144 N.M. 859, 192 P.3d 1236, cert. granted, State v. Saavedra, 2008-

4 NMCERT-009, 145 N.M. 258, 196 P.3d 489 (“Since plea negotiations are a routine

5 part of modern criminal procedure, a six-month period presumably was chosen by our

6 Supreme Court because it allows the State an adequate amount of time both to engage

7 in plea negotiations and to prepare for trial.”). Defendant also disputed the State’s

8 assertion that the district court has a policy in which it takes it upon itself to set a trial

9 date and discourages requests for a trial setting from the parties, and that the district

10 court failed to set a trial date in a timely fashion in this case. [Def.’s MIO 4-5] We

11 found Defendant’s arguments persuasive, including Defendant’s reliance on Yates,

12 and issued a second calendar notice proposing to affirm. The State has filed a

13 memorandum in opposition to this Court’s second calendar notice, arguing that

14 Defendant’s delay in getting an attorney constituted good cause for an extension of

15 time, and reasserting its claim that the delay in getting a trial setting in district court

16 was due to the district court policy articulated above. The State also raises new

17 arguments contending that the six-month period should have restarted upon

18 Defendant’s arraignment in district court and that the district court erred in
4

1 “automatically” dismissing the charges against Defendant without considering lesser

2 sanctions. We address these arguments below.

3 The State Did Not Demonstrate Good Cause

4 In its memorandum in opposition, the State attempts to distinguish the cases

5 relied on by this Court in its second notice of proposed disposition, including Yates,

6 to argue that Defendant’s case presented challenges that did not permit the State to

7 bring the case to trial within six-months. Specifically, the State argues that the delay

8 caused by the appointment of defense counsel and the failure of the district court to

9 promptly set a trial date bring this case outside the scope of Yates. We disagree.

10 Yates reinforces our previous cases asserting that the burden is on the State to

11 monitor criminal cases and ensure that trial commences prior to the running of the six12 month rule. See 2008-NMCA-129, ¶ 8 (stating that “the State could monitor

13 misdemeanor DWI cases filed in magistrate court to insure that they are dismissed and

14 refiled in district court with sufficient time remaining for the district court to dispose

15 of the case within six months of the triggering event in magistrate court”); id. ¶ 13

16 (“A six-month rule means six months, not six months plus some additional period to

17 be determined on a case-by-case basis.”); see also State v. Granado, 2007-NMCA18 058, ¶ 14, 141 N.M. 575, 158 P.3d 1018 (“The State has the burden of bringing a

19 defendant to trial within the time required by the rule.”). Furthermore, Yates cautions
5

1 against allowing the restarting of the rule when the reason asserted for doing so is

2 largely one of the State’s own making. See 2008-NMCA-129, ¶¶ 8, 11.

3 Here, the State contends that the delay in appointing defense counsel was a

4 result of Defendant’s inaction. However, the State was aware that over three months

5 had passed and only two-and-a-half months remained when it chose to dismiss the

6 charges in magistrate court and refile in district court after Defendant refused the

7 State’s plea offer. Thus, the State was aware that it only had two-and-a-half months

8 to bring Defendant to trial in district court, as it had expressed no reason that would

9 permit the rule to restart, and still chose to dismiss the magistrate proceedings. See

10 id. ¶¶ 1, 5 (holding that when prosecutors file a criminal complaint in magistrate court,

11 “knowing and intending that if the [d]efendant exercise[d] his right to a trial, the

12 complaint [would] be dismissed and refiled in district court,” the “refiled charges . .

13 . are presumptively a continuation of the original magistrate court prosecutions for

14 purposes of the six-month rule”). The State does not appear to have argued below,

15 and does not argue before this Court, that the delay in Defendant’s appointment of

16 counsel would have hindered its ability to bring Defendant to trial within the six17 month period in magistrate court. Thus, the State has not demonstrated that the need

18 for extension was not a result of its decision to dismiss the charges in magistrate court

19 and refile in district court. Consequently, it would undermine our holding in Yates,
6

1 where the State has not demonstrated good cause under Yates to restart the rule, to

2 allow for extensions of time where the State has not demonstrated that the need for an

3 extension did not arise from the dismissal of the magistrate proceedings and refiling

4 of charges in district court. We see no difference between the relief requested by the

5 State—the granting of a six-month extension—and the restarting of the rule to provide

6 another six-month period. Thus, we propose to affirm the district court’s denial of the

7 State’s motion, as the State has not demonstrated that this case does not fall within the

8 purview of Yates.

9 To the extent the State argues that the six-month rule anticipates that extensions

10 will be granted and the six-month period extended, we do not disagree. However,

11 Yates aids us in determining whether good cause exists for the granting of an

12 extension pursuant to Rule 5-604, and based on this Court’s reading of Yates, we

13 conclude that good cause does not exist under the circumstances of this case. 

14 Motion to Amend the Docketing Statement

15 To the extent the State raises additional arguments in support of reversal in its

16 memorandum in opposition, we treat these arguments as a motion to amend the

17 docketing statement. The essential requirements to show good cause for our

18 allowance of an amendment to an appellant’s docketing statement are: (1) that the

19 motion be timely, (2) that the new issue sought to be raised was either (a) properly
7

1 preserved below or (b) allowed to be raised for the first time on appeal, and (3) the

2 issues raised are viable. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct.

3 App. 1989), overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d

4 730 (Ct. App. 1991). Here, the State has raised two new issues: (1) that Yates was

5 incorrectly decided and the State was therefore entitled to a new six-month period

6 commencing with Defendant’s arraignment in district court, and (2) that the district

7 court erred in entering an “automatic” dismissal of Defendant’s charges due to a

8 recent amendment to Rule 5-604 granting the district court the discretion to impose

9 lesser sanctions. Having considered these issues within the context of our standard

10 for allowing amendments to the docketing statement, we deny the State’s motion to

11 amend.

12 To the extent the State contends that Yates was incorrectly decided and that in

13 accordance with cases prior to Yates the State was entitled to a new six-month period

14 commencing with Defendant’s arraignment in district court, the State has not

15 indicated how or where this issue was raised below. See State v. Smith, 102 N.M. 350,

16 353, 695 P.2d 834, 837 (Ct. App. 1985) (denying the defendant’s motion to amend for

17 failure to state all facts material to consideration of the issue and failure to

18 demonstrate how the issue was preserved), overruled on other grounds by Gillespie

19 v. State, 107 N.M. 455, 760 P.2d 147 (1988). We further note that, although the
8

1 Supreme Court has granted certiorari with respect to Yates, and the State argues that

2 recent Supreme Court amendments to Rule 5-604 are inconsistent with the analysis

3 in Yates, Yates is the latest pronouncement from this Court and the Supreme Court has

4 not reversed or overruled this Court’s decision in Yates. Until the Supreme Court

5 does so, Yates remains controlling precedent on which our courts are entitled to rely.

6 See Arco Materials v. N.M. Taxation & Revenue Dep’t, 118 N.M. 12, 14, 878 P.2d

7 330, 332 (Ct. App. 1994), rev’d on other grounds by Blaze Constr. Co., Inc. v.

8 Taxation & Revenue Dep’t, 118 N.M. 647, 884 P.2d 803 (1994). Finally, even if the

9 issue was preserved, the State has not demonstrated that this issue is viable, as the

10 State has not articulated a basis under Yates that would permit a new six-month period

11 to commence with Defendant’s arraignment in magistrate court. 

12 Furthermore, to the extent the State contends that because of the amendments

13 to Rule 5-604, the district court did not possess the authority to enter an “automatic”

14 dismissal of Defendant’s criminal charges without first considering lesser sanctions,

15 we similarly deny the State’s motion to amend its docketing statement to include this

16 issue. The State points out that there is no indication that the district court considered

17 alternatives to dismissal before entering its order dismissing Defendant’s charges.

18 While we recognize that a failure to exercise discretion conferred by law is, of itself,

19 an abuse of discretion, see Sandoval v. Chrysler Corp., 1998-NMCA-085, ¶ 12, 125
9

1 N.M. 292, 960 P.2d 834 (discussing trial court’s failure to rule on the defendant’s

2 motion for remittitur, and holding that the trial judge’s failure to exercise his

3 discretion was, in itself, reversible error), the State has again not indicated how this

4 issue was preserved below. See Smith, 102 N.M. at 353, 695 P.2d at 837. 

5 Consequently, we deny the State’s motion to amend its docketing statement.

6 CONCLUSION

7 For the reasons stated above and in this Court’s second notice of proposed

8 disposition, we affirm the district court’s dismissal of the charges against Defendant.

9 We further deny the State’s motion to amend its docketing statement. 

10 IT IS SO ORDERED.

11 ________________________________

12 MICHAEL E. VIGIL, Judge

13 WE CONCUR:

14 ______________________________________

15 JAMES J. WECHSLER, Judge
10

1 ______________________________________

2 LINDA M. VANZI, Judge