IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3
v. NO. 28,989 4 JOSEPH NIETO, 5 Defendant-Appellee. 6
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 7 Stephen D. Pfeffer, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Max Shepherd, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Brooke Gamble 14 Santa Fe, NM 15 for Appellee 16

MEMORANDUM OPINION 17 CASTILLO, Judge. 18 The State appeals the dismi ssal of the charges against Defendant for violation 19 of the six-month rule. In our notice, we proposed to affirm the district court. The 202 State has timely responded. We are not persuaded by its arguments, and we therefore 1 affirm. 2 This is a case where the Defendant was initially charged in magistrate court, but 3 he was never brought to trial there. Instead , the charges were dismissed in magistrate 4 court and refiled in district court. Upon Defendant’s mo tion to dismiss for violation 5 of the six-month rule, the district court c oncluded that the prosecutor’s dismissal and 6 refiling were done for the purpose of circumve nting the six-month rule. In our notice, 7 we proposed to conclude that the district court could have determined that the State 8 did not have a good reason for the dismissal and refiling. 9 The State has responded that, in fact, th e prosecutor had proper reasons for the 10 dismissal and refiling. It argues that the State met its burden of demonstrating that its 11 actions were not done for bad reasons or an improper purpose. The State argues that 12 the prosecutor had three reasons for dismissing and refiling. 13 First, defense counsel had indicated thatan appeal would befiled if Defendant 14 lost. The prosecutor felt that refiling w ould conserve prosecutorial and judicial 15 resources. We recognize that we have approved the practice of filing cases in district 16 court where it is known that the defendant would appeal de novo to district court. 17 State v. Ahasteen , 1990-NMCA-158, ¶¶ 23-24, 126 N.M. 238, 968 P.2d 328. 18 However, since then we have decided a number of cases where a decision by a 193 defendant that might affect prosecutorial or judicial resources does not provide a good 1 reason for refiling in district court and restarting the six-month rule. See State v. 2 Yates , 2008-NMCA-129, ¶¶ 1, 11, 144 N.M . 859, 192 P.3d 1236 (demanding a jury 3 trial), cert. granted , State v. Savedra , 2008-NMCERT-009, ___ N.M. ___, 196 P.3d 4 489; State v. Carreon , 2006-NMCA-145, ¶ 10, 140 N.M . 779, 149 P.2d 95 (failing to 5 plead). A wish to preserve resources alone does not give the State a good reason to 6 dismiss and refile charges. 7 Second, the State asserts that it was unprepared for trial because of the late 8 disclosure of defense witne sses. It argues that it had only seven days to interview 9 those witnesses, while Defendant had three months to interview the State’s witnesses. 10 The State asserts that it should have been allowed more time. We know of no 11 authority that requires an equal amount of time be provided to each side to investigate 12 the other’s witnesses. In fact, the rule re quires discovery to be made no less than ten 13 days before trial. Rule6-504 NMRA. Thus, we must assume that ten days is 14 sufficient. 15 We recognize that the State was provi ded with Defendant ’s discovery only 16 seven days before trial, bu t that does not appear to bethe reason for the prosecutor 17 being unprepared for trial. Rather, it appears that the prosecutor told defense counsel 18 at the time that she called him about her late discovery thathe was unprepared for trial 194 and offered a plea. [RP 14] The State contends that the prosecutor never said that. 1 [MIO 4] However, it is not for this C ourt to determine the veracity of certain 2 statements. That is for the di strict court to determine. See State v. Bolton , 3 1997-NMCA-007, ¶ 13, 122 N.M. 831, 932 P.2d 1075 (stating that we review the 4 district court’s determination regarding questions of histori cal fact with the deference 5 of the substantial evidence standard and th at questions of historical fact include 6 questions regarding “what really motivated the prosecutor in dismissing the case and 7 whether his actions were take n in subjective good faith”). We assume, in light of the 8 district court’s decision, that it believed de fense counsel’s version of the facts leading 9 up to the prosecutor’s dismissal of the charges and refiling. 10 Third, the State asserts that there wa s newly discovered evidence that would 11 support a dismissal and refiling, with a restarted six-month rule. We agree that newly 12 discovered evidence may provide a good reason for dismissal and refiling of charges. 13 However, our cases indicate that when ch arges are refiled, the newly discovered 14 evidence forms the basis fo r the new complaint. See State ex rel. Delgado v. Stanley , 15 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972); State v. Lucero , 108 N.M. 548, 550, 16 775 P.2d 750, 752 (Ct. App. 1989) . That is not the case here. Instead, the newly 17 discovered evidence was evidence that would contradict defense witnesses. We are 18 not convinced that there was newly disc overed evidence here that supported the 195 refiled complaint, thus requiring fu rther time for further investigation. 1 Contrary to the State’s assertions inits memorandum in opposition, we believe 2 that there was sufficient evid ence from which the district court could have concluded 3 that the prosecutor was unprepared for trial and that that was the reason for his 4 dismissal of the charges in magistrate court and refiling in district court. The district 5 court could have discounted the claim of preservation of resources and newly 6 discovered evidence as reasons for the dismissal. 7 For the reasons stated herein and inthe notice of proposed disposition, we 8 affirm. 9 IT IS SO ORDERED. 10

________________________________ 11 CELIA FOY CASTILLO, Judge 12 WE CONCUR: 13

________________________________ 14 JONATHAN B. SUTIN, Chief Judge 15

_________________________________ 16 MICHAEL D. BUSTAMANTE, Judge 17