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

v. NO. 29,144 4 ANTHONY L. JIMENEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Douglas R. Driggers, 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 for Appellant 16 MEMORANDUM OPINION 17 KENNEDY, Judge. 18 Defendant appeals the revocation of his probation and imposition of judgment 19 and sentence for two counts of residential burglary and one count of conspiracy to 20 commit residential burglary. He raises four issues, all related to the timing of the 21 hearing to revoke probation. [DS 4] Defendant filed memoranda in opposition to this 222 Court’s two calendar notices, which we have duly considered. We reverse. 1 Issues 1 - 4 : Defendant argues that the districtcourt erred in: (1) granting the 2 State’s first petition for extension of time without a specific finding of good cause; (2) 3 granting the State’s second (oral) petition for extension of time without a specific 4 finding of good cause; (3) granting the State’s oral petition for extension of time 5 because it was not in writing; and (4) counting the time from July 11, 2008 through 6 November 7, 2008, when the hearing was fi nally held, against Defendant. [Id.] We 7 address these issues together. 8 Defendant’s issues require application of Rule 5-805 NMRA. “Interpretation 9 and application of the law are subject to a de novo review.” State v. Roman , 10 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P. 2d 852 (citations omitted). 11 In relevant part, Rule 5- 805 provides as follows, with respect to proceedings to 12 revoke probation: 13 H. Adjudicatory Hearing. The ad judicatory hearing shall commence 14 no later than sixty (60) days af ter the initial hearing is conducted. 15

. . . 16 J. Waiver of Time Limits. The probationer may waive the time 17 limits for commencement of the adjudicatory hearing. 18 K. Extensions of Time. Extensi ons of time for commencement of a 19 hearing on a motion to revoke probati on may be granted in the manner 20 provided by Rule 5-604 NMRA for extension of time for commencement 21 of trial. 22 Rule 5-604(E) specifies the following pro cedure for obtaining extensions of time: 233 The party seeking an extension of time shall file with the clerk of the 1 court a verified petition for extension concisely stating the facts 2 petitioner deems to constitute good cause for an extension of time to 3 commence the trial. If the petition is filed in the Supreme Court, the 4 statement of good cause shall include a statement of a definite trial date 5 that the petitioner has already obtained from the district court within the 6 time period of the extension request. Upon request, the district court 7 shall provide the parties with such a trial date. The petition shall be filed 8 within the applicable time limit prescribed by this rule, except that it may 9 be filed within ten (10) days after the expiration of the applicable time 10 limit if it is based on exceptional circumstances beyond the control of the 11 parties or trial court which justify the failure to file the petition within 12 the applicable time limit. A party seeking an extension of time shall 13 forthwith serve a copy thereof on oppos ing counsel. Within five (5) days 14 after service of the petition, opposi ng counsel may file an objection to 15 the extension setting forth the reasons for such objection. No hearing 16 shall be held except upon order of the court. If the court finds that there 17 is good cause for the granting of an extension beyond the applicable time 18 limit, it shall fix the time limit within which the trial must commence. 19 “‘Shall’ in the Rules of Criminal Procedure . . . is . . . mandatory.” State v. 20
Davis , 97 N.M. 745, 748, 643 P.2d 614, 617 (Ct. App. 1982) (citation omitted). See 21 also NMSA 1978, § 12-2A-4(A) (1997) (stating, “‘Shall’ and ‘must’ express a duty, 22 obligation, requirement or condition precedent.”). 23 The circumstances of the State’s first petition for an extension of time were as 24 follows. Defendant’s initial hearing after hi s arrest for an alle ged probation violation 25 timely took place on March 27, 2008. [RP 258; 264, ¶ 1] Pursuant to the sixty-day 26 limit of Rule 5-805(H), the adjudicatory h earing was thus required to take place no 27 later than May 26, 2008. The hearing was scheduled for April 24, well within the 284 sixty-day limit, but the State, assertedly unaware that Defendant was at the Southern 1 New Mexico Correctional Facility , failed to file a motion to transport him to court on 2 that date. [RP 313, ¶ 3] As of April 24, there remained thirty-two days in which to 3 reschedule the hearing without exceeding the sixty-day limit. For reasons not revealed 4 by the record proper, the adjudicatory heari ng was reset for May 29, three days after 5 the sixty-day limit would expire. [Id.] In its memorandum in opposition, the State 6 asserts that it was the usual practice in the Third Judicial District to hear probation 7 revocation proceedings on only one day per month, and May 29 wa s the earliest date 8 available under this policy. We have previously commented on when “court policy” 9 can operate to produce untoward results requiring reversal. State v. Stefani , 2006- 10 NMCA-073, ¶¶ 16-18, 139 N.M. 719, 137 P.3d 659. We conclude that the district 11 court’s policy does not override the mandate of Rule 5-805, and must be set aside 12 when contrary to mandatory time limits adopted by the Supreme Court. This is 13 particularly true in the present circumstances, where thirty-two days remained in 14 which to timely schedule the hearing, had the district court or the State given due 15 attention to the rule. 16 On May 9, 2008, still within the sixty days, the State petitioned for an extension 17 of time until July 27. [RP 264-65] The petition does not identify any reason an 18 extension was needed beyond May 26, although it mentions that the hearing was 195 scheduled on the trailing docket for May 29 at the time the motion was filed. [Id.] The 1 petition also states that Defendant was in custody, and that Defendant opposed the 2 extension. [Id. ¶ 9] 3 The body of the district court’s order granting the extension states in full: 4 THIS MATTER came before the Court on the State’s Petition for 5 Extension of Time Within Which to Commence Probation Hearing, and 6 the Court being fully advised in the matter; 7 IT IS HEREBY ORDERED that the time limits be extended by 8 sixty (60) days, up to and including July 27, 2008. 9 [RP 267] Defendant now asserts that good cause for an extension was not specified 10 in the court’s order, and we agree. Defendant did not cause this delay. The State had 11 thirty-two days from the missed hearing toobtain a transport order and schedule a 12 hearing within the rule. De fendant was in custody, and it is the responsibility of the 13 State to commence the hearing. See, e.g., State v. Stock , 2006-NMCA-140, ¶ 17, 140 14 N.M. 676, 147 P.3d 885 (stating, in speedy trial context, “[I]t is ultimately the [s]tate's 15 responsibility to bring a defendant to trial in a timely manner.”) We hold that under 16 these facts it is the State’s ob ligation to assert some reason for an extension. In the 17 absence of such justification, and in the face of Defendant’s opposition, which was 18 noted in the motion, the extension is not supported by good cause, and we hold that 19 granting it was an abuse of discretion. 20 Our first calendar notice, which based itsdescription of the factual setting on 216 Defendant’s docketing statement, asserted that the State again failed to transport 1 Defendant to court on May 29, and orally moved for an extension until July 30. [DS 2 3] The State’s memorandum in opposition a sserts that this is incorrect and that 3 Defendant was present in court on May 29, but “there was confusion between what 4 the Defendant believed the status of hi s case was and what his Public Defender 5 believed the record to be. Consequently, the court suggested that the Defendant and 6 his Public Defender get together to coordi nate the defense, and the Court reset the 7 hearing for June 26, 2008.” [MIO 4] 8 We conclude that Defendant’s asserted presence in court on May 29 does not 9 change the result. As discussed above, the violation of the sixty-day timeframe 10 allowed by Rule 5-805 had already occurred, and an extension, which Defendant 11 opposed, had been granted until July 27 without any reason specified by the State or 12 finding of good cause by the district court. 13 In the context of the Rule 5-604’s six-month rule as applied to a criminal trial, 14 we have stated: 15 It is to be applied with common sense and not used to effect technical 16 dismissals. The operation of the ruleis not jurisdictional. By analogy 17 to civil cases, it is not designed to allow a defendant to sleep upon rights 18 under the rule while the state continues prosecution of a case which is 19 subject to being dismissed upon motion. A defendant must file a motion 20 to dismiss to trigger a dismissal. 21 State v. Guzman , 2004-NMCA-097, ¶ 9, 136 N.M . 253, 96 P.3d 1173 (internal 227 quotation marks and citations omitted). 1 In the context of the six-month rule for commencing criminal trials, our cases 2 upholding convictions despite anapparent violation of Ru le 5-604 have found that the 3 defendant slept upon his or her rights in some way. In Guzman , for example, the 4 defendant stipulated to a continuance thatwould have put the trial outside the six5 month rule. The district court then failed to enter an order granting an extension until 6 eighteen days after the Rule 5-604 time expired. Thereafter, the defendant waited 7 another thirty-one days before moving to dismiss. We concluded that in these 8 circumstances the defendant had not considered her rights under Rule 5-604 9 significant enough to promptly protect them, and thus had waived the rule. In the 10 present case, we conclude that Defendant’s opposition to the State’s May 9 petition 11 for extension was sufficient to alert the court that there was a problem with the State’s 12 position. Defendant thus did not sleep on his rights. 13 Defendant also argues that the district court erred in counting the time from July 14 11, 2008, through November 6, 2008, when th e hearing was finally held, against him. 15 His argument is essentially that if the h earing had been held as scheduled on one of 16 the earlier dates at which the State aske d for and received extensions, it would not 17 have been necessary for him to ask for extensions later, and thus his requests for 18 extension should not be counted against hi m. As discussed above, it appears that 198 Defendant may have acquiesced in a continuance on April 24, 2008, but he objected 1 to the State’s request for extensions we ll before the sixty-day Rule 5-805 period 2 expired. As of May 29, the court had already ordered an extension until July 27. 3 Since we hold that the sixty-day period w ithin which Defendant’s hearing could take 4 place was not validly extended, we also conclude that the continuances that Defendant 5 requested later do not affect the result in this case. 6 For the reasons set forth above, we reverse the district court’s revocation of 7 Defendant’s probation and imposition of senten ce, and remand to the district court for 8 proceedings consistent with this opinion. 9 IT IS SO ORDERED. 10

___________________________________ 11 RODERICK T. KENNEDY, Judge 12 WE CONCUR : 13

___________________________ 14 MICHAEL D. BUSTAMANTE, Judge 15

___________________________ 16 TIMOTHY L. GARCIA, Judge 17