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

v. No. 29,256 4 CARLOS CASTILLO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Stephen Quinn, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Susan Roth, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Judge. 17 Defendant appeals the revocation of his probation. In particular, he contends 18 that the petition to revoke should have been dismissed because the District Attorney 19 did not file it within five days of receivi ng the report of a violation. Rule 5-805(F) 20 NMRA. The district court refused to dismiss stating that Defendant was not 21 prejudiced. [RP 158] In our notice, we proposed to affirm. Defendant has timely 222 responded. We have considered his ar guments and finding them unpersuasive, we 1 affirm. 2 In our notice, we pointed out that the rule does not requiredismissal for this 3 violation. Cf. Rule 5-805(L) (providing for dismissal if the adjudicatory hearing is not 4 held within the time prescribed by the rule). Defendant makes two arguments in 5
response. 6 First, citing federal authority, he argues th at the District Attorney violated her 7 obligation to use reasonable diligence in revoking his probation. This reasonable 8 diligence standard is not rule based. Rathe r, it developed from no tions of due process. 9 See State v. Murray , 81 N.M. 445, 449, 468 P.2d 416, 420 (explaining delay in 10 bringing probation violations as implicating due process). As Defendant did not argue 11 below that due process required dismi ssal of the revocation petition, we do not 12 consider the arguments made in the memorandum in opposition. See State v. Joanna 13
V. , 2003-NMCA-100, ¶ 7, 134 N.M. 232, 75 P.3d 832 (describing the preservation 14 rule and applying it to due process claims). 15 Second, Defendant argues that the Distri ct Attorney has an ethical obligation 16 to follow the rules. [MIO 7- 9] We agree that the rules were promulgated to promote 17 efficient administration of probation revocati ons. We also agree that all attorneys 18 have an obligation to follo w court rules. However, we know of no authority and 193 Defendant has cited us none that requires dismissal of proceedings in every case 1 where time deadlines set by a rule are not followed by counsel. See In re Adoption of 2
Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (pointing out that where the 3 parties do not cite authority for their argument, we assume that there is none). 4 The question here is whether violati on of Rule 5-805(F) requires dismissal of 5 the petition to revoke probation. There is no question that the rule was violated here. 6 However, the rule does not st ate a remedy for violation of the particular time limit at 7 issue here. We have often said thatwhere a time limit is mandatory, but not 8 jurisdictional, the proper analysis for dismissal is whether the delay prejudiced the 9 defendant. See State v. Budau , 86 N.M. 21, 23, 518 P.2d 1225, 1227 (Ct. App. 1973) 10 (applying prejudice analysis to delay in arraignment under Rule 5-604(A) NMRA); 11 cf. N.M. Dep’t of Health v. Compton , 2000-NMCA-078, ¶¶ 9, 12, 129 N.M. 474, 10 12 P.3d 153 (discussing statutory deadline for petitions for involuntary commitment and 13 to appoint treatment guardians). There is no indication that the time limits in Rule 5- 14 805(F) are jurisdictional a nd Defendant does not argue that they are. See State v. 15 Candelario , 2008-NMCA-119, ¶ 7, 144 N.M. 794, 192 P.3d 789 (pointing out that 16 time limits in Rule 5-604 are not jurisdicti onal). Thus, dismissal was required only 17 if Defendant was prejudiced by the delay. 184 The district court found that Defendant had suffered no prejudice from the late 1 filing of the petition to revoke probation. [RP 158] Defendant does not attack that 2 finding. He simply argues that the eight-month delay was so unreasonable as to 3 preclude him from having to show prejudice. We recognize that under the case law 4 prior to enactment of the rule, unreasonable delay would waive a probation violation 5 without a showing of prejudice. However, when determining an appropriate remedy 6 for violation of a rule, we look for more prejudice than a delay. As Defendant has 7 shown none, dismissal was notan appropriate remedy. 8 Therefore, for the reasons stated herein and in the notice of proposed 9 disposition, we affirm. 10 IT IS SO ORDERED

. 11 12 MICHAEL E. VIGIL, Judge 13 WE CONCUR: 14

15 RODERICK T. KENNEDY, Judge 16

17 LINDA M. VANZI, Judge 18