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Certiorari Granted, No. 32,069, December 29, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-003

Filing Date: October 19, 2009

Docket No. 28,665

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

ELISEO SANTOS MARTINEZ,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Stephen D. Pfeffer, District Judge

Gary K. King, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender

Eleanor Brogan, Assistant Appellate Defender

Santa Fe, NM

for Appellee

OPINION

ROBLES, Judge.

{1} The State appeals a district court order dismissing four felony charges against Eliseo

Santos Martinez (Defendant), pursuant to Rule 5-604 NMRA (six-month rule). On appeal,

the State argues that (1) Rule 5-604(B)(5) does not require a bench warrant to be issued for

a new six-month period to begin, but instead “merely requires that the defendant fail to

appear” to a court setting; (2) the district court erred in determining that if a bench warrant
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is quashed before a defendant is arrested or surrenders, there can be no triggering event for

a new six-month period under Rule 5-604(B)(5); and (3) that although the issue was not

preserved, this Court should reverse under fundamental error analysis because the district

court did, in fact, orally grant a time extension that was never memorialized. We disagree

and affirm.

I. BACKGROUND

{2} On January 5, 2007, Defendant was indicted for (1) aggravated burglary contrary to

NMSA 1978, Section 30-16-4(C) (1963); (2) aggravated battery contrary to NMSA 1978,

Section 30-3-5(C) (1969); (3) conspiracy to commit aggravated burglary contrary to NMSA

1978, Section 30-28-2 (1979); and (4) conspiracy to commit aggravated battery contrary to

Section 30-28-2. Defendant was arraigned on February 9, 2007, with trial set for July 17,

2007. On June 12, 2007, Defendant filed an unopposed motion to continue and a petition

for a three-month extension of the six-month rule that was granted by the district court. The

new rule date became November 9, 2007. On October 22, 2007, neither Defendant nor his

attorney made an appearance in court for a docket call. The prosecutor requested that a

bench warrant be issued for Defendant’s failure to appear, and the district court replied that

“a warrant will issue on [Defendant].” The record reveals, however, that the bench warrant

was not issued until November 20, 2007, eleven days after the rule date ran and twenty-nine

days after Defendant’s failure to appear.

II. DISCUSSION

{3} On appeal, the State argues that the district court’s dismissal resulted from an overly

technical application of the six-month rule that is not supported by case law or justified by

the equities of this case. Alternatively, the State argues that, even if a warrant must be issued

before the rule expires, it would lead to unreasonable results and situations where defendants

may benefit from their failure to appear. Additionally, the State argues that the district court

orally granted a three-month extension of time in this case and, although all parties

apparently forgot about the extension, this Court should reverse under fundamental error

analysis. We address each issue in turn.

A. Issuance of the Bench Warrant 

{4} The district court’s application of the six-month rule is reviewed under a de novo

standard, but determinations by the district court regarding questions of fact are reviewed

for substantial evidence. See State v. Rayburns, 2008-NMCA-050, ¶ 7, 143 N.M. 803, 182

P.3d 786.

{5} The rules of criminal procedure for district courts, magistrate courts, metro courts,

and municipal courts contain limits regarding the time for the commencement of a

defendant’s criminal trial. See Rule 5-604; Rule 6-506 NMRA; Rule 7-506 NMRA; Rule 8-

506 NMRA. The rules require that a defendant’s trial commence within six months of a

triggering event. See id.; State v. Carreon, 2006-NMCA-145, ¶ 6, 140 N.M. 779, 149 P.3d

95. We have therefore interpreted the time limits for commencement of trial as mandatory.
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{6} Rule 5-604(B)(5) states, in pertinent part, that “[t]he trial of a criminal case or

habitual criminal proceeding shall be commenced six (6) months after whichever of the

following events occurs latest . . . if the defendant is arrested or surrenders in this state for

failure to appear, the date of arrest or surrender of the defendant.” Where there is a failure

to bring a defendant to trial within the relevant time frame given any extensions granted

under the rule, “the information or indictment filed against such person shall be dismissed

with prejudice.” Rule 5-604(F) (emphasis added).

{7} At the outset, we note that New Mexico case law has interpreted the time limit in

Rule 5-604 as “bright-line[d]” and mandatory and yet has also recognized that courts are to

apply the rule with common sense to avoid effecting a hyper-technical dismissal. See State

v. Jaramillo, 2004-NMCA-041, ¶¶ 1, 8-17, 135 N.M. 322, 88 P.3d 264 (discussing the

conflicting policies underlying how to apply the rule and reviewing cases that applied

various views of the time limit) (internal quotation marks and citation omitted). Rule 5-

604(F) contains a strongly worded provision for non-compliance within the time limit. Id.

(“In the event the trial . . . does not commence within the time specified . . . the information

or indictment . . . shall be dismissed.”). The purpose of Rule 5-604(F) has been interpreted

as guarding “against lack of preparedness on the part of the state.” Rayburns,

2008-NMCA-050, ¶ 8. However, our cases have also stated that “when the facts . . . can be

interpreted such that the six-month rule is not violated and when the trial court so interprets

them, a dismissal in such circumstances would effectuate the sort of technical dismissal upon

which the law frowns.” State v. Littlefield, 2008-NMCA-109, ¶ 11, 144 N.M. 655, 190 P.3d

1150 (internal quotation marks and citation omitted). These dual and seemingly conflicting

policies can be reconciled by noting that the rule is intended for “ease of application,” State

v. Lobato, 2006-NMCA-051, ¶ 30, 139 N.M. 431, 134 P.3d 122, and that “[t]he crux of the

six-month rule is promptness” in bringing a defendant to trial. State v. Dominguez,

2007-NMCA-132, ¶ 22, 142 N.M. 631, 168 P.3d 761. 

{8} The question this Court must address is whether Defendant’s failure to appear at a

docketing call or the district court’s oral statement that a warrant would issue can be

categorized as a “tolling event” that stopped the six-month clock from running. On

December 21, 2007, Defendant filed a motion to dismiss for violation of Rule 5-604 and to

quash the warrant. Defendant argued that no extension of time was filed, no exceptional

circumstances existed and, as of the rule date of November 9, 2007, no triggering event

described under the rule had occurred. A hearing was held on the motion at the conclusion

of which the district court issued an order of dismissal, stating that “[t]he . . . Rule 5-604

time limits set in this case expired on November 9th, 2007[, and the] criminal action must be

dismissed pursuant to . . . Rule 5-604.” This was proper.

{9} The State argues that the rule provides for a new six-month period to bring

Defendant to trial as a consequence for his failure to appear and the issuance of a bench

warrant. New Mexico case law, however, has previously held that a defendant’s failure to

appear was not an event that by itself could toll the running of the six-month period under

Rule 5-604(B)(5), nor is it an event that can trigger a resetting of the period. See State v.

Granado, 2007-NMCA-058, ¶¶ 21, 27, 141 N.M. 575, 158 P.3d 1018. In Granado, the

defendant made an appearance in court several hours late after the court had already stated
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that a warrant would be issued. Id. ¶¶ 4, 5. After the defendant arrived and explained that

his delay was for good cause, the court stated the warrant would be cancelled. Id. ¶ 5.

Subsequently, the defendant’s trial was held outside of the original six-month rule date, and

the defendant moved to dismiss. Id. ¶ 6. Upon review, this Court concluded that because

a warrant was never actually filed, no warrant was ever issued. See id. ¶¶ 9, 15-17, 25

(“When the judge later announced he was going to ‘cancel’ the bench warrant, there was

nothing to cancel. His case note to ‘cancel the bench warrant’ was nothing more than a note

to his chambers not to issue the bench warrant he had earlier said he had intended to issue.”).

Because there was no warrant, there was no new triggering event that could reset the

defendant’s six-month rule period under Rule 5-604(B)(5). See Granado, 2007-NMCA-058,

¶¶ 21, 27. 

{10} It is the State’s obligation, not Defendant’s, to establish that a bench warrant is

actually issued if it intends to rely on its assertion that the latest triggering event under Rule

5-604(B) was a bench warrant being issued for failure to appear. See Granado, 2007-

NMCA-058, ¶ 18. Likewise, in Granado, this Court did not determine that the defendant’s

failure to appear tolled the running of the six months. Holding otherwise would introduce

situations where a defendant’s failure to appear could toll the six-month period while, at the

same time, the clock would continue to run under Granado if a warrant was never obtained.

This could result in a defendant’s six-month period expiring with the possibility that the

State could obtain a warrant at some future time. This is not the law. The State is not

permitted to pursue the issuance of a warrant at its leisure after the six-month time period

has expired. See Rule 5-604(B) (providing six months for the commencement of trial); Rule

5-604(F) (stating that an information or indictment shall be dismissed with prejudice if the

trial is not commenced within the applicable time period); see also State v. Yates,

2008-NMCA-129, ¶ 13, 144 N.M. 859, 192 P.3d 1236 (“A six-month rule means six months,

not six months plus some additional period to be determined on a case-by-case basis.”), cert.

granted, State v. Savedra, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488; Granado,

2007-NMCA-058, ¶ 18 (holding that it is the state’s obligation to establish that a bench

warrant is successfully issued).

{11} Similar to Granado, in the instant case a warrant was not issued during the applicable

six-month period. Likewise, Defendant’s failure to appear by itself is not a recognized

triggering event under Rule 5-604(B), and it would be inconsistent for this Court to conclude

that it is a tolling event. As we observed in Granado, when a defendant fails to appear, a

court may or may not issue a warrant. See 2007-NMCA-058, ¶ 23 (noting that the court has

discretion as to whether a bench warrant will be issued for failure to appear); see also Rule

5-209(B) NMRA (“If a defendant fails to appear in person . . . the court may issue a warrant

for the defendant’s arrest.” (emphasis added)); Rule 5-208(B) NMRA (“The warrant shall

be signed by the court.” (emphasis added)). 

{12} The State relies on Littlefield for the proposition that Defendant’s failure to appear

for the docket call “caused his trial not to be held within the [r]ule date [which] makes it

reasonable to give the state another six months.” We are unpersuaded. In Littlefield, the

defendant was released on furlough from jail to get medical attention, and he subsequently

did not return to jail. 2008-NMCA-109, ¶ 2. The defendant was arrested following an
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issued warrant within the six-month period, and the question was raised as to whether a

bench warrant for failure to return to jail was similar to a bench warrant for failure to appear

in court for purposes of resetting the six-month time period under Rule 5-604(B)(5).

Littlefield, 2008-NMCA-109, ¶ 5. This Court concluded: 

[B]ecause the district court vacated the trial date as a result of the bench

warrant, we believe it is most consistent with the wording of the rule as

applied to the facts of this case to hold that Rule 5-604(B)(5) operated to

begin the running of the six-month rule anew when Defendant was arrested

on the warrant for his failure to appear.

Littlefield, 2008-NMCA-109, ¶ 12 (emphasis added).

{13} We are cognizant of the fact that the Supreme Court of New Mexico changed Rule

5-604(F) by Supreme Court Order No. 08-8300-052, effective November 24, 2008, to read

that “[i]n the event the trial . . . does not commence within the time specified in Paragraph

B of this rule . . . the information or indictment filed against such person may be dismissed

with prejudice or the court may consider other sanctions as appropriate.” (Emphasis

added.) This does not support the State’s case. The State contends that although this

amendment became effective after the district court’s dismissal, it is an indicator to the

Supreme Court’s interpretation of the six-month rule. We view the situation differently. In

Duran v. Eichwald, the case that prompted the Supreme Court to “immediately suspend[]

the provisions in Paragraph F of the rule as part of [the] ruling from the bench at the

conclusion of the hearing,” the court specifically stated: “Of course, if the trial of the case

is not commenced on or before the deadline allowed by this Court [November 24, 2008], the

matter shall be dismissed with prejudice.” 2009-NMSC-030, ¶ 15, 146 N.M. 341, 210 P.3d

238 (emphasis added); see also Supreme Court Order No. 08-8300-052 (pronouncing the

amendment to be effective November 24, 2008); but see Supreme Court Order No. 09-8300-

032 (amending Rule 5-604 and approved provisionally for one year effective September 1,

2009). The Supreme Court’s ruling underscores two points. First, that the court interpreted

Rule 5-604(F) to mandate dismissal if a trial on a case is not commenced by the six-month

time deadline. Second, that in announcing the new amendment, the Supreme Court held that

the amendment would only apply to those cases where a trial was not commenced after

November 24, 2008. Neither point assists the State. 

B. The District Court’s Oral Granting of a Time Extension 

{14} We now turn to the State’s argument that this Court should reverse under

fundamental error analysis because the district court did, in fact, orally grant a time

extension that was never memorialized. On September 21, 2007, a pretrial conference was

held in which neither Defendant nor counsel for Defendant appeared. The record reveals

that Defendant’s first counsel had withdrawn more than a month earlier, and Defendant was

unrepresented until October 12, 2007. The State did not request a warrant, but orally

requested an extension to the six-month rule to allow Defendant and whomever Defendant’s

new counsel would be time to prepare for trial, and the district court orally stated that a

three-month extension would be granted. Between September 21, 2007 (the pretrial
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conference date) and November 9, 2007 (the rule date), no extension was filed with the

district court or entered into the record. Following Defendant’s December 21, 2007 motion

to dismiss for violation of the rule date, the State filed a response in which no argument

about the September 21, 2007 oral extension was made. At the April 7, 2008 hearing on the

motion to dismiss, the State again neglected to argue the oral extension. Finally, in the briefin-chief, the State mentions that “neither the parties nor the district court later remembered

this oral grant of an extension” and that, although there is no mention of it below in the

context of the motion to dismiss and the issue was not preserved, this Court should decide

the issue as involving fundamental error “to avoid a miscarriage of justice.” 

{15} “Parties alleging fundamental error must demonstrate the existence of circumstances

that ‘shock the conscience,’ or implicate a fundamental unfairness within the system that

would undermine judicial integrity if left unchecked.” State v. Cunningham,

2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation

omitted). “The doctrine of fundamental error is applied only under extraordinary

circumstances[.]” State v. Maestas, 2007-NMSC-001, ¶ 8, 140 N.M. 836, 149 P.3d 933.

“[W]e also recognize that another strand runs through the fundamental error doctrine that

focuses less on guilt and innocence and more on process and the underlying integrity of our

judicial system.” State v. Barber, 2004-NMSC-019, ¶ 16, 135 N.M. 621, 92 P.3d 633. 

{16} Generally, an oral ruling by a district court is not final and, in only certain

exceptions, is not binding. See State v. Vaughn, 2005-NMCA-076, ¶ 15, 137 N.M. 674, 114

P.3d 354. Our courts have previously held that appeals from anything other than an actual

order or judgment signed by a judge and filed with the court will not stand. See Smith v.

Love, 101 N.M. 355, 356, 683 P.2d 37, 38 (1984); see also State v. Page, 100 N.M. 788, 793,

676 P.2d 1353, 1358 (Ct. App. 1984) (concluding that an oral ruling is ineffective to adjudge

a defendant incompetent to stand trial); State v. Sanders, 96 N.M. 138, 142, 628 P.2d 1134,

1138 (Ct. App. 1981) (holding that an oral ruling is ineffective to deprive a defendant of

custody of the child). However, in State v. Guzman, this Court held that a district court may

extend the time to commence trial in an oral ruling when the written order was drafted by

the State and filed after the rule period had expired. 2004-NMCA-097, ¶¶ 8-12, 136 N.M.

253, 96 P.3d 1173. However, in Guzman, we balanced the state’s failure to file a verified

petition and the district court’s late written order with the defendant’s actions as a whole and

the need for the continuance. See id. ¶¶ 11-13. In that case, the original district court judge

had died, a new prosecutor was assigned to the case, and the judge pro tempore, who was

juggling over thirty scheduled jury trials, had granted an unopposed motion to continue, as

well as orally granted a time extension to the rule date that was ultimately memorialized after

the six-month period. See id. ¶¶ 2-8. 

{17} We distinguish Guzman from the immediate case by noting that here there was not

an extension to the six-month period filed later or otherwise after the September 21, 2007

oral statements of the district court. The State had forty-nine days to file an extension before

expiration of the rule date and ninety-one days before Defendant ultimately filed his motion

to dismiss. The State simply did not act. Defendant’s third counsel on this case, however,

entered his appearance on December 4, 2007, with no knowledge that an extension had been
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requested or granted and filed the motion to dismiss on December 21, 2007, to which the

State never argued until this appeal that a previous extension had been granted. 

{18} In balance, we decline to hold that Defendant’s actions measured against the State’s

failure within the context of a need for an extension to the rule date rise to a level of

fundamental error. The State has the burden of bringing a defendant to trial within the time

required by the rule. See id. ¶ 11 (stating that the prosecutor, not the defendant, had the duty

to take appropriate action to bring the case to trial); see also Zurla v. State, 109 N.M. 640,

644, 789 P.2d 588, 592 (1990) (stating that a defendant does not have a duty to bring himself

to trial), modified on other grounds by State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212

P.3d 387. 

III. CONCLUSION

{19} For the above reasons, we affirm the district court’s order of dismissal. 

{20} IT IS SO ORDERED.

____________________________________

ROBERT E. ROBLES, Judge

WE CONCUR:

____________________________________

CELIA FOY CASTILLO, Judge

____________________________________

MICHAEL E. VIGIL, Judge

Topic Index for State vs. Martinez, No. 28,665

AE APPEAL & ERROR

AE-FE Fundamental Error

AE-SR Standard of Review

AE-SB Substantial or Sufficient Evidence

CA CRIMINAL PROCEDURE

CA-AE Arrest Warrant

CA-CP Criminal Procedure, General

CA-DF Delay in Filing

CA-DC Dismissal of Charges

CA-RD Right to Speedy Trial

CA-SY Stay of Proceedings

CA-TL Time Limitations