1

Certiorari Granted, September 16, 2011, No. 33,136

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-093

Filing Date: June 28, 2011

Docket No. 29,227 

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

WAYNE BENT,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF UNION COUNTY

Gerald E. Baca, District Judge (by designation)

Gary K. King, Attorney General

Nicole Beder, Assistant Attorney General

Santa Fe, NM

for Appellee

Law Works L.L.C.

John A. McCall

Albuquerque, NM 

for Appellant

OPINION

KENNEDY, Judge.

{1} Defendant stands convicted of various counts of criminal sexual contact of a minor

and contributing to the delinquency of a minor as a result of which he was sentenced to

prison. Of the many issues he raises on appeal, one defect in the grand jury proceedings

deprives the district court of its jurisdiction and is, accordingly, dispositive of all other

issues.
2

 

{2} Defendant was indicted by a grand jury, which was convened on October 3, 2007,

and whose statutory term would have ended on January 4, 2008, but for an order extending

the statutory term issued verbally by a district judge. Defendant’s case was presented to the

grand jury on May 20, 2008. Since NMSA 1978, Section 31-6-1 (1983) provides that a

“grand jury shall serve for a period of no longer than three months[,]” we hold that this

statutory term is a mandatory limitation on the grand jury’s jurisdiction. An indictment

returned after the grand jury’s term expires is void ab initio. Therefore, Defendant’s motion

to quash the indictment should have been granted, as the grand jury was without legal

authority to consider his case and return an indictment. As a result, the indictment issued

by the grand jury was void, and the district court did not have jurisdiction to proceed with

the trial in this case. 

{3} Because our decision renders the proceedings in this matter a nullity ab initio for lack

of jurisdiction, we need not address the issues related to motions brought by Defendant

concerning the State’s manner of conducting the grand jury proceedings, nor matters raised

at trial. See State v. Chacon, 62 N.M. 291, 293-94, 309 P.2d 230, 231-32 (1957) (holding

that a challenge against the court’s jurisdiction for lack of an accusation in the form required

by the New Mexico Constitution was dispositive of the appeal); People v. Williams, 535

N.E.2d 275, 279 (N.Y. 1989) (concluding that because a fundamental defect in the grand

jury proceeding rendered it a nullity, there was no need to reach the defendant’s contentions

regarding other claimed defects arising from the conduct of the state). We reverse the

district court and remand this case for entry of an order quashing the grand jury indictment,

dismissing this case without prejudice, and discharging Defendant.

I. FACTUAL AND PROCEDURAL BACKGROUND

{4} Defendant, the apparent leader of a religious community in northeastern New

Mexico, was charged with various crimes centering around what he maintained were

religious practices intended to be cleansing ceremonies. The State argued that such practices

amounted to criminal sexual contact of minors and contributing to the minors’ delinquency.

The case was presented to the grand jury of Union County on May 20, 2008. Defendant was

indicted and arraigned on the indictment.

{5} There is no dispute in this case as to the facts pertaining to this issue. The grand jury

that heard Defendant’s case had been convened on October 3, 2007. An almost

indecipherable pleading bearing a file stamp from that date appears to have summoned grand

jurors for service on November 12, 2007. At the hearing on Defendant’s motion to quash

the indictment, the prosecutor stated to the court that the grand jury’s term had been verbally

extended “[sua sponte]” by District Judge Sam Sanchez without the entry of any written

order. There is no documentary evidence concerning such an extension, nor does the record

contain any explanation as to why the extension was made. We are left to rely on assertions

by counsel and the district court that it happened. The parties agree that the grand jury only

sat twice, once in November, and again on May 20, 2008. The date in May was beyond
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three months past the date of any previous grand jury activity.

{6} Defendant’s motion to quash the indictment was heard on August 12, 2008, alleging

that, under NMSA 1978, Section 31-6-3(A) (2003), the grand jury was not selected and

seated in accordance with the law. Specifically, Defendant alleged that the grand jury had

been convened on October 3, 2007, and had convened again on May 20, 2008, in violation

of Section 31-6-1, which mandates a maximum period of grand jury service of “no longer

than three months.” 

 

{7} The district court responded to the portion of the motion related to the grand jury

term by stating that the statute “doesn’t provide for any relief if there’s a violation.”

Defendant responded that the remedy for an illegal indictment is that it be “quashed[,] and

a new [g]rand [j]ury seated properly.” The district court read the annotation to the statute

and noted that the annotation indicated that Sections 31-6-1 and 31-6-2 were “merely

directory, not mandatory” pursuant to State v. Garcia, 110 N.M. 419, 796 P.2d 1115 (Ct.

App. 1990), and State v. Apodaca, 105 N.M. 650, 735 P.2d 1156 (Ct. App. 1987) (overruled

on other grounds by Garcia, 110 N.M. 419, 796 P.2d 1115). The court further inquired as

to whether a showing of prejudice to Defendant was required before an indictment may be

quashed. Defendant responded that the indictment was deficient on its face and should be

quashed because the grand jury exceeded its term, the State denied discovery, and the State

did not present exculpatory evidence to the grand jury that had been requested by Defendant.

The State responded that the district court had already noted that the statute was only

advisory in nature. The State then asserted, without citation to the record, that Judge

Sanchez had explained to the grand jury that he extended their tenure sua sponte for an

additional three months without issuing a written order on the record. The prosecutor,

without having them admitted, showed to the court certified pay records indicating the grand

jury served on two days. 

{8} The State was aware and informed the district court of case law indicating that an

indictment handed down by a grand jury after the expiration of its statutory period would in

some states render the indictment “void [ab initio].” The State mentioned that there are such

things as “de facto” grand juries that are allowed to proceed past their terms. At the end of

the argument, the district court ruled:

With respect to the first issue, that the [g]rand [j]ury was [empaneled]

or served beyond the three[-]months time period as provided by Section 31-

6-1, it appears that within that section, there is no remedy provided for a jury

that serves longer than its term. And at this point in time, there’s been no

prejudice shown by . . . Defendant with respect to that issue by itself. And

so, the motion to quash with respect to that violation or apparent violation of

the statute will be dismissed.

What’s more is that even in the constitutional section, Section 14,

dealing with the [g]rand [j]ury[,] the right to a [g]rand [j]ury and the
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convening of a [g]rand [j]ury, . . . there is no time limitation for the service

of a [g]rand [j]ury. And then . . . Apodaca is a case that tells us that this

section, as well as Section 31-6-2 is directory and not mandatory. I will state

though that Apodaca dealt with not this precise issue, but the issue of the

quashing of an indictment based on the discharge of an individual grand juror

by the [d]istrict [a]ttorney and replacement of him by an alternate to serve on

that case. . . . [E]ven in that situation, . . . which is pretty clearly set out what

the process is in the statute, . . . the Court of Appeals has said that that’s

discretionary or directory and not mandatory. For those reasons, that issue

is denied. 

II. DISCUSSION

{9} We review the construction of statutes and the legal requirements for convening and

maintaining a grand jury as a matter of law under a de novo standard. State v. Isaac M.,

2001-NMCA-088, ¶ 4, 131 N.M. 235, 34 P.3d 624.

{10} The New Mexico Constitution provides that the composition of and process for

convening a grand jury be as “prescribed by law.” N.M. Const. art. II, § 14 (“A grand jury

shall be convened upon order of a judge of a court empowered to try and determine cases of

capital, felonious or infamous crimes . . . or . . . may be convened in any additional manner

as may be prescribed by law.”). The statutory basis for the convening of grand juries has

been recognized since at least 1892. Territory v. Baca, 6 N.M. 420, 440, 30 P. 870, 864

(N.M. Terr. 1892) (holding that a constitutionally infirm statute could not create a legal

grand jury). This is so because, while the existence of grand juries is constitutionally

required, the nature of their composition, work, and term are matters enacted by statute. In

re Mills, 135 U.S. 263, 268 (1890) (holding that in the absence of statute, empowering a

court to entertain cases for which grand jury indictment required to charge, a court had no

power to charge a crime). 

When an indictment is presented by a grand jury in open court, the

presumption is that it is legally presented; that the jurors were properly

summoned, legally qualified, and competent, and that the required number,

at least concurred in the finding. These facts [are] essential to the lawful

finding and presentment[.] 

State v. Rogers, 31 N.M. 485, 498-99, 247 P. 828, 834 (1926) (internal quotation marks and

citation omitted). In this case, the questions are (1) whether the term of the grand jury had

expired; and (2) if the term expired, what was the expiration’s effect on the validity of the

grand jury’s indictment of Defendant. Challenges to the validity of the grand jury are

specifically limited by statute to three enumerated grounds: (1) the grand jury was not

legally constituted, (2) an individual grand juror was not legally qualified to serve as a juror,

and (3) an individual juror was a witness against the person indicted. Section 31-6-3; State

v. Laskay, 103 N.M. 799, 800, 715 P.2d 72, 73 (Ct. App. 1986). It is to the legal constitution
5

of the grand jury that Defendant directs his appeal.

A. The Requirement of the Filing of an Indictment or Information is a

Constitutional Requirement Upon Which the Jurisdiction of the District Court

Depends

{11} “[A] court obtains no jurisdiction to proceed and render judgment in an action

brought without authority.” State ex rel. Attorney Gen. v. Reese, 78 N.M. 241, 243, 430 P.2d

399, 401 (1967). The New Mexico Constitution, Article II, Section 14 and the Fifth

Amendment to the United States Constitution require the State to file an indictment or

information before commencing a felony prosecution. State v. Chacon, 62 N.M. 291, 295-

96, 309 P.2d 230, 233 (1957); State v. Ross, 1999-NMCA-134, ¶ 14, 128 N.M. 222, 991 P.2d

507. In such cases, the district court has no jurisdiction to try a defendant without an

indictment. Ross, 1999-NMCA-134, ¶ 15. The failure of jurisdiction in this regard may not

be waived. Chacon, 62 N.M. at 295, 309 P.2d at 232-33. Nor, in the absence of a proper

indictment conferring jurisdiction on the district court, may a defendant be sentenced. Id.

at 296, 309 P.2d at 233. Thus, if the indictment in this case is void for having been issued

by a grand jury that was not empowered to sit, the indictment cannot confer jurisdiction on

the court to consider the case and would require dismissal. 

 

B. Convening Grand Juries is Governed by Statute

{12} We pointed out earlier that the way in which a grand jury is convened is left to

legislative enactment by our Constitution. A grand jury is thus “a body provided for by the

New Mexico Constitution and by statute[.]” McKenzie v. Fifth Jud. Dist. Ct., 107 N.M. 778,

779, 765 P.2d 194, 195 (Ct. App. 1988). We consider a statute’s plain wording to be the

primary, essential source of its meaning and when the statute contains clear and

unambiguous language, we are compelled to give effect to that language, refraining from

further statutory interpretation. Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147

N.M. 583, 227 P.3d 73. As we employ the plain meaning rule, statutes “are to be given

effect as written without room for construction unless the language is doubtful, ambiguous,

or an adherence to the literal use of the words would lead to injustice, absurdity[,] or

contradiction.” State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. We are

compelled to construe a statute “according to its obvious spirit or reason.” Id. It is our

responsibility, “if the meaning of a statute is truly clear—not vague, uncertain, ambiguous,

or otherwise doubtful . . . to apply the statute as written and not to second-guess the

[L]egislature’s selection from among competing policies or adoption of one of perhaps

several ways of effectuating a particular legislative objective.” State ex rel. Helman v.

Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994). In this statute, there is no

ambiguity in the Legislature’s limitation of the term of a grand jury. It unequivocally

expresses the Legislature’s intention to limit the term of a grand jury to “no longer than three

months.” § 31-6-1.

{13} Section 31-6-1 constitutes the statutory framework applicable to grand juries and
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states: “The district judge may convene one or more grand juries at any time, without regard

to court terms. A grand jury shall serve for a period of no longer than three months.” The

Supreme Court, in adopting the Uniform Jury Instructions, uses this construction. The

district court judge swears in a grand jury with an oath, which contains the following

instruction: “Your term as members of the grand jury expires __________ [Use Note 2]

unless you are discharged or excused by the court prior to this time.” UJI 14-8002 NMRA.

Use Note 2 states: “Members of a grand jury may not serve for a period longer than three

months.” We read the statute and jury instruction as being in parity, establishing and

recognizing in turn that a grand jury cannot by law be convened for a period “longer than

three months.” Id. There is no exception to this mandate contained in the statute, nor

provision for an extension of the statutory period. The language is clear and unambiguous.

C. Three Months is not Calculated by Counting Actual Days of Service

{14} The State’s briefing points us to no statute or precedent that allows a grand jury to

operate legally past its term, and we will not pursue avenues left unexplored by a party.

Defendant argues that a grand jury whose term has expired after three months cannot legally

return a valid indictment and, thus, the district court was without jurisdiction to try him. The

State’s first response to this argument is that, although the grand jury was empaneled for

seven-and-a-half months at the time it indicted Defendant, it had actually only served two

days—November 12, 2007 and May 20, 2008—of the three-month term set by statute. To

assert that the grand jury “may have been [empaneled for] six or seven months, but it

actually served for only two days, bringing it within the terms of the statute” is untenable.

The statute clearly contemplates an end to a grand jury’s period of service, yet the State’s

argument seems to suggest that grand jurors could be empaneled indefinitely until they

completed a total of some ninety days of investigation and deliberation. The record indicates

that the grand jury was called to service in October 2007, and was directed to appear in the

month after it was empaneled. The grand jury heard absolutely nothing from the district

court for another six months until recalled in May 2008, to hear Defendant’s case. The

abandonment of statutory control of a grand jury’s term that is inherent to the State’s

approach here stands in stark contrast to the clear three-month limit. We can find no

authority at all that, when Judge Sanchez had “sua sponte” informed the grand jury that its

term was to be extended and did not commit his order to writing, he acted pursuant to any

lawful authority whatsoever, and the State directs us to none. 

{15} The clear language of the statute limits the term of a grand jury to not more than three

months. There being no statutory language for extending the period of a grand jury’s

service, we hold that, in the absence of any legislative expression to the contrary, a grand

jury may not be empaneled to serve under Section 31-6-1 for a period longer than three

months. See State ex rel. Jacobson v. Dist. Ct. of Ward Cnty. Fifth Jud. Dist., 277 N.W. 843,

848, 850 (N.D. 1938) (per curiam) (holding that, in the face of a statute limiting the term of

the grand jury, an extension of its term by order of a district judge was of no legal effect, and

the actions of the grand jury beyond the end of its statutory term were invalid). The grand

jury in this case completed its work during the three-month term, making it functus officio
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thereafter under Section 31-6-1. Because the grand jury’s statutory life had ended, the return

of the May 2008 indictment was not permissible under the circumstances. To ask it to

engage in further work on another matter after the end of its three-month term was beyond

the power of the prosecutor or district court. In re Laurens Cnty. April-June 2001 &

July-September 2001 Grand Jury, 598 S.E.2d 915, 918 (Ga. Ct. App. 2004) (holding that,

after the grand jury had completed its statutory term, the court could not reconvene it in a

special session). New Mexico has never recognized the de facto grand jury which was

suggested below by the State to exist elsewhere. The State did not pursue such an argument

on appeal, and we agree with the Idaho Supreme Court which, in rejecting such an argument,

stated: 

The grand jury . . . was properly formed and convened. There was no

defect, error, or irregularity in the filling of the grand jurors’ positions, either

at the commencement of the term or at its conclusion. The term of office

expired, and thus, the offices and positions of the grand jurors ceased to

sustain a legally recognized existence. The grand jurors were not acting as

de facto officers when they returned [the defendant’s] indictment.

State v. Dalling, 911 P.2d 1115, 1118 (Idaho 1996) (holding that indictment was void ab

initio, requiring dismissal of a criminal case). Here, as in Dalling, the grand jury ceased to

sustain its legal existence once the statutorily prescribed three-month term expired. 

 

D. The Statute is Mandatory on Its Face

{16} The State’s second contention does not argue that the statute is ambiguous, just that

it is not “mandatory,” but “directory” in nature. As a canon of construction, we regard the

word “shall” as mandatory. Bursum v. Bursum, 2004-NMCA-133, ¶ 17, 136 N.M. 584, 102

P.3d 651 (internal quotation marks omitted). “It is widely accepted that when construing

statutes, ‘shall’ indicates that the provision is mandatory, and we must assume that the

Legislature intended the provision to be mandatory absent [a] clear indication to the

contrary.” Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013,

¶ 22, 146 N.M. 24, 206 P.3d 135 (internal quotation marks omitted). We have previously

held that “[d]eviation from a mandatory statute or one intended to prevent fraud and

unfounded prosecutions is usually fatal and renders the grand jury illegal and its indictments

null and void.” State v. Gunthorpe, 81 N.M. 515, 517, 469 P.2d 160, 162 (Ct. App. 1970)

(internal quotation marks and citation omitted). In this case, it is undisputed that the Union

County grand jury that heard this case was convened by the district court on October 3,

2007, and Defendant’s case was considered on May 20, 2008, more than seven months and

two weeks later. If Section 31-6-1 sets three months as a mandatory maximum term for a

grand jury to sit, then the grand jury returned its indictment of Defendant three months after

they ceased to have any legal existence and, accordingly, the indictment must be declared

void. 

{17} On appeal, the State cites solely to Apodaca for authority. Apodaca is inapposite,
1

A similar issue arises in this case, as a grand juror was apparently aware of a

Children, Youth & Families Department investigation into the religious community of which

Defendant was the leader. We do not address it here.

8

as it deals with neither of their arguments. Rather than dealing with the statutory term of the

grand jury, Apodaca dealt with how qualified grand jurors are substituted once a grand jury

is empaneled. 105 N.M. at 652-53, 735 P.2d at 1158-59. The case involved a challenge of

the release and replacement of a grand juror by a prosecutor where the statute provided that

the district court was to perform that function.1 Our holding concerning provisions of the

statute regards as mandatory those provisions relating to the composition of the grand

jury—the required number and qualification of grand jurors when the grand jury is

convened—but considers provisions concerning “those which prescribe details as to the

manner of selection or drawing [as] usually . . . directory.” Id. at 653, 735 P.2d at 1159.

Apodaca thus supports Laskay’s holding that a failure to convene a legally constituted grand

jury transgresses a mandatory precondition to the empaneling of a grand jury.

{18} Statutory provisions concerning the nature of what is fundamental in empaneling,

convening, and providing structure to the grand jury are thus generally mandatory, and

provisions concerning its administration once empaneled are directory. In State v. Ulibarri,

1999-NMCA-142, ¶¶ 8, 15-25, 128 N.M. 546, 994 P.2d 1164, we held that compliance with

the statutes, requiring the preparation of a verbatim record of grand jury proceedings, setting

the number of concurring jurors necessary to issue an indictment, and requiring instruction

of the grand jurors on the record concerning the elements of offenses they were considering,

were mandatory preconditions to an indictment. There, statutes mandated the existence of

an adequate record of the proceedings and proper instruction on the law and ensured the

overall legal adequacy of the process of the grand jury’s work as protecting “the very heart

of the grand jury system[.]” Id. ¶ 15. When a person appeared to prosecute before the grand

jury who was not properly authorized by statute to do so, we held that the violation of the

mandatory statute compelled dismissal of the indictment. State v. Hollenbeck, 112 N.M. 275,

276-78, 814 P.2d 143, 144-46 (Ct. App. 1991). We have recognized that a “technical

violation” of NMSA 1978, Section 31-6-4(A) (2003), requiring a grand jury to convene

during the business hours of the court, did not require dismissal of the indictment. State v.

Weiss, 105 N.M. 283, 285-86, 731 P.2d 979, 981-82 (Ct. App. 1986). However, Weiss

involved a grand jury continuing their work until two in the morning during their regular

term and not being brought back and convened by the district court more than three months

after their statutory term expired. Id. at 284, 731 P.2d at 980. In fact, Weiss contrasted the

statute requiring work during “business hours” as a “direction” for how to do the work as

opposed to “the essence of things to be done,” the latter of which would be regarded as

mandatory. Id. at 285, 731 P.2d at 981. We have previously noted that, in a statute where

the terms “shall” and “may” occur together, ordinarily it must be concluded that the

Legislature was aware of and intended different meanings. Thriftway Mktg. Corp. v. State,

114 N.M. 578, 579, 844 P.2d 828, 829 (Ct. App. 1992) (internal quotation marks omitted).

Here, the Legislature unequivocally stated that the grand jury’s term of service shall not

exceed three months. Other provisions in the statute are directed to the operation of the
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grand jury once convened. As in Weiss and Apodaca, these terms have nothing to do with

the legal existence of the grand jury body and are directory. Accordingly, we conclude that

the language in the statute, restricting the term of the grand jury to three months, is central

to the legal constitution and empanelment of the grand jury and, hence, a mandatory

requirement. 

{19} Returning to the State’s argument, its contention that three months’ service can be

parceled out almost infinitely until three months’ actual time is spent by the grand jury in the

grand jury room offends the plain-language rule, its disparagement of using statutory

language to obtain absurd results, and the universal practice of limiting the terms of grand

juries. Even in states that provide for extending a grand jury’s service, there is no provision

for a grand jury to consider new matters not taken up during its original term. To allow a

grand jury to be called back for a day or two until about ninety days’ service was eked out

by the State, as it asks us to hold, offends the underlying idea inherent to the function of the

grand jury as protecting the interests of justice. We are in accord with the Court of Appeals

of New York, which reasoned that statutes limiting grand jury terms are intended to prevent

hold-over grand juries from considering any new matters “eliminat[ing] the danger of

‘vestpocket’ [g]rand [j]uries” that could become the captives of courts or prosecutors.

Williams, 535 N.E.2d at 278-79 (citation omitted).

E. Obtaining an Indictment After the Grand Jury’s Term Expires Results in an

Indictment That is Void Ab Initio and Confers No Jurisdiction to Try

Defendant

{20} Other jurisdictions that set specific terms for their grand juries have held them to

have no power after the expiration of their terms. United States v. Fein, 504 F.2d 1170, 1173

(2d Cir. 1974). Under federal law, “an indictment returned by a grand jury sitting beyond

its legally authorized time is a nullity.” Id. at 1177. “The uniform rule is that in the absence

of statute to the contrary the grand jury is discharged by operation of law at the end of the

term of court for which it was called.” State ex rel. Adami v. Lewis & Clark Cnty., Dist. Ct.

of First Jud. Dist., 220 P.2d 1052, 1058 (Mont. 1950); Grand Jury Law and Practice § 4:12

(2d ed. 2010). 

{21} We therefore construe the statute in this case as unambiguously mandatory in

limiting the term of grand juries to not more than three months. We are provided with no

legislative history, but note that, in most other jurisdictions, the terms of grand juries are

limited by statute, and we impute what we know of their intent in limiting grand jury terms

to our situation in New Mexico. The policy considerations employed elsewhere are

illustrative of why a limited term of service is considered mandatory elsewhere, and why we

have come to regard it as such in this case.

{22} “The concept of limited grand jury existence was based on considerations of infusing

new blood into the grand jury at frequent intervals, avoiding the extreme personal sacrifices

to jurors extended service would entail, and eliminating the possibility of semi-professional

jurors.” Steinbeck v. Iowa Dist. Ct. In & For Linn Cnty., 224 N.W.2d 469, 475 (Iowa 1974).
10

The Pennsylvania Supreme Court stated succinctly: “A tendency to establish anything

approaching permanency in a grand jury is repugnant to our scheme of government and

subversive of individual rights.” Shenker v. Harr, 2 A.2d 298, 301 (Pa. 1938).

{23} Thus, for a grand jury to act without authorization beyond the term during which it

is empowered to sit, is fatal to the indictment. An unauthorized extension of the term of a

grand jury beyond its term is a defect which “goes to the very existence of the grand jury

itself[.]” United States v. Macklin, 523 F.2d 193, 195 (2d Cir. 1975) (internal quotation

marks and citation omitted); United States v. Armored Transp., Inc., 629 F.2d 1313, 1316

(9th Cir. 1980) (“Such a defect—that the grand jury lost its power to hand down

indictments—is jurisdictional and may be raised at any time.”). There is no statutory

provision for extending the term of a grand jury in New Mexico contained in Section 31-6-1

or otherwise and, in that absence, we cannot legislate the existence of one. The jurisdiction

of any proceeding in which Defendant is charged with a felony depends on the “presentment

or indictment of a grand jury.” N.M. Const. art. II, § 14. Without a properly constituted

grand jury returning a valid indictment charging Defendant with a crime, we hold that the

district court was without jurisdiction to proceed against him. 

III. CONCLUSION

{24} The indictment in this case is void because the group of citizens that issued the

purported indictment was not a legally constituted grand jury, as it had finished its term

some months before and had ceased to exist. Any extension of its term by the district court

was undertaken without statutory authority. Legally speaking, there was no grand jury

convened in this case. Therefore, there was no indictment under the law in this case to

confer jurisdiction on the district court to try, convict, or sentence Defendant. We note that

Defendant’s acquittal in a court lacking proper jurisdiction did not violate the constitutional

prohibitions against double jeopardy and would not in and of itself bar retrial. State v.

Hamilton, 107 N.M. 186, 188, 754 P. 2d 857, 859 (Ct. App. 1988). “[D]ismissals for failure

to comply with the grand jury statutes and rules are of necessity without prejudice.” State

v. Ulibarri, 2000-NMSC-007, ¶ 2, 128 N.M. 686, 997 P.2d 818 (internal quotation marks

and citation omitted). Therefore, we remand this case to the district court and instruct that

the charges and conviction be set aside without prejudice, the indictment be quashed, and

Defendant be discharged from custody.

{25} IT IS SO ORDERED.

____________________________________

RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge
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____________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for State v. Bent, Docket No. 29,227

AE APPEAL AND ERROR

AE-RM Remand

AE-SR Standard of Review

CT CONSTITUTIONAL LAW

CT-NM New Mexico Constitution, General

CA CRIMINAL PROCEDURE

CA-GJ Grand Jury

CA-QU Quashing of Indictment

JD JURISDICTION

JD-DC District Court

ST STATUTES

ST-LI Legislative Intent