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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 29,454

5 PHOEBE GARCIA,

6 Defendant-Appellant,

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

8 Thomas J. Hynes, 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 Nancy M. Hewitt, Assistant Appellate Defender

15 Santa Fe, NM 

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge.

19 Defendant appeals the district court order denying her motion to dismiss the

20 State’s probation revocation petition, finding that Defendant violated the terms of her

21 probation, continuing Defendant’s probation, and ordering Defendant to complete
2

1 treatment at Totah Behavioral Treatment Program. [RP 83] We proposed to reverse.

2 In response, the State filed a memorandum in opposition. We have duly considered

3 the State’s arguments, but we are not persuaded by them. We therefore reverse.

4 Defendant entered into a plea agreement with respect to the original charges in

5 this case. She was sentenced, her sentence was suspended, and she was placed on

6 probation for three years. While on probation, Defendant was arrested for

7 intoxication, which was in violation of the conditions of her probation. A report was

8 filed, and the district court entered an order directing the State to file a motion to

9 revoke Defendant’s probation or file a notice of its intent to not pursue the violation

10 of probation. The State filed a motion to revoke Defendant’s probation. However,

11 an adjudicatory hearing on the petition was not held within the time limits under Rule

12 5-805(H) NMRA. Because a timely adjudicatory hearing was not held, Defendant

13 filed a motion to dismiss the State’s petition with prejudice as required by Rule 5-

14 805(L). Id. (providing that a motion to revoke probation shall be dismissed with

15 prejudice if a hearing on the alleged probation violation is not held within the time

16 limits of the rule). 

17 In our calendar notice, we noted that the time limits for a hearing can be

18 extended for “good cause shown.” See Rule 5-805(K). We proposed to hold that the

19 district court impliedly extended the time limit for the adjudicatory hearing based on
3

1 its statement that the court “just screwed up.” We proposed to hold that there was not

2 “good cause” for an extension of time based on the fact that the court “screwed up,”

3 and we proposed to reverse the district court denial of Defendant’s motion to dismiss

4 the revocation petition. In response, the State does not challenge the proposed

5 disposition as discussed in our calendar notice. Instead, the State concedes that the

6 adjudicatory hearing was not held in a timely manner, and that the appropriate

7 disposition is simply to reverse the denial of Defendant’s motion and require the

8 district court to enter an order dismissing the petition for probation violation. [MIO

9 1, 2, 5] 

10 The State argues that because Defendant’s probation was continued “pursuant

11 to the terms and conditions of the judgment and sentence and original terms of

12 probation,” Defendant was not prejudiced by the untimely adjudicatory hearing.

13 [MIO 5] It appears that the State is claiming that, even if the petition for revocation

14 is dismissed, the result from the district court order will not change. We disagree with

15 the State’s claim. The district court did not merely order that the probation as

16 originally ordered be continued. Instead, the district court addressed the State’s

17 petition for revocation of probation and found that Defendant violated her probation.

18 In addition, the district court required, “as a special condition of continuing

19 probation,” that Defendant successfully complete Totah Behavioral Treatment
4

1 Program. [RP 86] These actions were the direct result of the State’s petition to

2 revoke Defendant’s probation, and were not part of Defendant’s original probation.

3 Therefore, with the dismissal of the State’s petition, all orders that resulted from that

4 petition will be nullified. 

5 For the reasons discussed in this opinion and in our calendar notice, we reverse

6 the district court denial of Defendant’s motion to dismiss the State’s petition to revoke

7 Defendant’s probation. We remand for entry of an order dismissing the State’s

8 petition with prejudice as required under Rule 5-805(L). With the dismissal of the

9 petition, all orders flowing from the petition are null and void. 

10 IT IS SO ORDERED.

11 

12 MICHAEL E. VIGIL, Judge

13 WE CONCUR:

14 

15 ROBERT E. ROBLES, Judge

16 

17 LINDA M. VANZI, Judge