IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 29,127 4 ERNIE DURAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Stephen Bridgforth, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Max Shepherd, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Hugh W. Dangler, Chief Public Defender 14 Santa Fe, NM 15 Monica Tolden, Assistant Public Defender 16 Las Cruces, NM 17 for Appellant 18

MEMORANDUM OPINION 19 KENNEDY, Judge. 20 Defendant Ernie Duran app eals the district court’s denial of his motion to 21 dismiss based on a violation of Rule 6- 506 NMRA. We issued a calendar notice 222 proposing to summarily reverse the distri ct court. The State filed a timely 1 memorandum in opposition, whic h we have duly considered. Unpersuaded by the 2 State’s response, we reverse and remand this case to the district court to dismiss the 3 charges against Defendant. 4 DISCUSSION 5 Defendant argues that the district court erred in denying De fendant’s motion to 6 dismiss based on a violation of the time limits for bringing his case to trial under Rule 7 6-506. [DS 5] Defendant contends that there were no “exceptional circumstances” 8 shown by the State to justify filing a motion fo r an extension within ten days after the 9 expiration of the time limits. [Id.] 10 “Rule 6-506 requires a defendant’s trial to commence within one-hundred 11 eighty-two days of a triggering event, absent permissible extensions.” See State v. 12 Carreon , 2006-NMCA-145, ¶ 6, 140 N.M. 779, 149 P.3d 95, cert. quashed , 2007- 13 NMCERT-008, 142 N.M. 436, 166 P.3d 1090. The State may obtain an extension by 14 a motion filed within ten days of the expi ration of the applicable time limits; however, 15 the State must show exceptional circumstan ces beyond the control of the State or the 16 trial court. See State v. Dominguez , 2007-NMCA-132, ¶ 7, 142 N.M. 631, 168 P.3d 17 761 (discussing extensions for the district c ourt’s six-month rule as provided in Rule 18 5-604(E) NMRA). The district court’s appli cation of the six-month rule is an issue 193 we review de novo. Id. ¶ 8. 1 In this case, Defendant was arraigned in magistrate court on March 7, 2008, on 2 charges of driving under the influence of alcohol/drugs, speeding, driving with a 3 suspended or revoked license, and no insurance. [RP 71] Pursuant to the district 4 attorney’s policy, after Defendant made a timely demand for a jury trial, the State 5 dismissed the magistrate court case and refile d the same charges in the district court. 6 [Id.] Under the magistrate court rules, the time limits for commencement of trial 7 would have expired on Septem ber 5, 2008. [Id. 72] See Rule 6-506. On September 8 10, the State filed a petition for an exte nsion of time. [RP 63-64] The State 9 acknowledged in its petition that pursuant to the case of State v. Yates , filed July 25, 10 2008, the six-month rule would be calcu lated from the time of arraignment in 11 magistrate court. [RP 64] See Yates 2008-NMCA-129, ¶ 11, 144 N.M. 859, 192 P.3d 12 1236, cert. granted by State v. Savedra , 2008-NMCERT-009, 145 N.M. 258, 196 P.3d 13 489. The State conceded that pursuant to Yates it was filing the petition after the 14 expiration of the rule; however, the Stat e claimed that exceptional circumstances 15 existed because it had “been operating under the good faith belief that the six month 16 rule commenced upon arraignment in District Court.” [Id.] Defendant opposed the 17 petition and filed a motion to dismiss base d on the expiration of the time limits for 18 commencing trial. [RP 64, 66- 67] After a hearing, the district court found that the 194 time limits for bringing Defendant to trial had expired under Rule6-506 and that the 1 State was seeking an extension within the ten-day period after e xpiration of the rule, 2 which is limited to exceptional circumstances. [RP 72] See Rule 6-506(D). The court 3 found that exceptional circumstances exis ted because the State did not know about 4 Yatesuntil August 1, 2008, and had not had time to discover all of the cases within its 5 possession that were affected by Yatesprior to the expiration of the time limits in Rule 6 6-506 in this case. [Id.] 7 Defendant appealed, challenging the district court’s conclusion that exceptional 8 circumstances existed to justify the State’s request for an extension after the expiration 9 of the applicable time limits. [DS 5] Weissued a calendar notice proposing to agree 10 with Defendant. As discussed in the calendar notice, we were not persuaded that the 11 State’s failing to assess the effect of a deci sion of this Court for more than a month 12 constituted exceptional circumstances. See Dominguez , 2007-NMCA-132, ¶ 11 13 (rejecting the State’s assertion that it did not seek an extension earlier because of a 14 heavy caseload). Committee commentary in th e magistrate and district court rules 15 indicates that “exceptional circumstances” include situations beyond the control of the 16 State or trial court, such as the death or illness of the judge, prosecutor, or defense 17 attorney immediately before trial. See Rule 6-506; Rule 5-604(E). We therefore 18 proposed to reverse the district court on its ruling that exceptional circumstances 195 applied. 1 The State’s memorandum in opposition does not address our proposed 2 disposition on exceptional circumstances . Instead, the State argues that Yates was 3 incorrectly decided and that the parties, th e district court, and this Court should not 4 rely on it. [MIO 1-14] We note thatthe State did not argue below that Yatesdid not 5 apply. [RP 63-65] The State raised Yatesitself to justify its petition for an extension 6 and assumed it applied. [Id. ] Thus, the State did not pr eserve the argument that it 7 now makes on appeal. In addition, by assuming that Yatesapplied, the State did not 8 even attempt to show that it was dismi ssing and refiling the case for a proper reason, 9 but argued that Yatesamounted to an exceptional circumstance justifying an 10 extension. As a result, the State has no ba sis for now arguing on appeal that the State 11 carried its burden of establishing that its policy was not used to circumvent the six12 month rule. Cf. State v. Lozano , 2008-NMCA-082, ¶ 6, 144 N.M. 250, 185 P.3d 1100 13 (addressing a similar policy as that in Yates , but reaching a different conclusion by 14 recognizing that the district court had a factual basis for finding that there was no 15 intent to use the policy to circumvent the six-month rule). 16 Because the State raises a new issue on appeal that was not preserved, and 17 because it failed to address our proposed disposition on exceptional circumstances, we 18 remain persuaded that exceptional circumstances did not exist to justify filing a 196 request for an extension after the applicabletime limits for bringing this case to trial 1 had expired. We therefore reverse the district court’s order denying Defendant’s 2 motion to dismiss. 3 CONCLUSION 4 For these reasons, and those in the calendar notice, we reverse the district court 5 and instruct the court to enter an order dismissing the charges against Defendant for 6 violation of the six-month rule. 7 IT IS SO ORDERED. 8

___________________________________ 9 RODERICK T. KENNEDY, Judge 10 WE CONCUR : 11

___________________________ 12 CELIA FOY CASTILLO, Judge 13

___________________________ 14 LINDA M. VANZI, Judge 15