(dissenting).
{29} I respectfully dissent. While I agree that Rule 10-229 of the Children’s Court Rules is the correct rule to use for the dispositional portion of this case, I do not agree that automatic dismissal is the sanction to be imposed when a dispositional hearing is not recommenced within forty-five days from entry of the order committing a child to a facility for diagnostic purposes.
{30} The majority relies on two bases for their holding that dismissal is the proper sanction. First, they look to the history of the rule; second, they interpret the language of the rule as necessarily including the dismissal provision that is contained in Rules 5-604, 10-226, and 10-320. My view is different. I believe there is a distinction between not meeting the time requirements for the dispositional portion of the case and not meeting those for the adjudicatory portion. Over the years, our Supreme Court has refined how a court is to remedy the late commencement of a dispositional hearing, and the requirement of automatic dismissal with prejudice has been eliminated. Other bases for dismissal remain. Consequently, the absence of an express automatic dismissal provision is intentional, and we would be rewriting the rule if we included it through statutory construction.
HISTORY
{31} The Children’s Court Rules were first enacted in 1976. Since then, there have been numerous changes, including a renumbering and a recompilation. Two rules are applicable in this case: Rule 10-229, which deals with time limits for dispositional proceedings, and Rule 10-117, which deals with the consequences of not meeting the time requirements set out in the rules.
Rule 10-229
{32} In State v. Doe, 93 N.M. 31, 595 P.2d 1221 (Ct.App.1979), our court first dealt with what is today Rule 10-229(B). At that time, it was designated as Rule 49(b), N.M.R. Child. Ct. (Repl.Pamp.1979), and stated as follows:
(b) Time limits. When the respondent is in detention, the dispositional hearing shall begin within twenty days from the date the adjudicatory hearing was concluded or an admission of the factual allegations of the petition was accepted by the court, except as provided herein. The court may order that the respondent be transferred to an appropriate facility of the department of corrections ... for a period of not more than sixty days for purposes of diagnosis. If the respondent is so transferred, the dispositional hearing shall begin within seventy-five days from the date the adjudicatory hearing was concluded or an admission of the factual allegations of the petition was accepted by the court.
Id.; Doe, 93 N.M. at 32, 595 P.2d at 1222. This rule established the time limits for commencement of a dispositional hearing (1) when a child was in detention and (2) when the child had been transferred to an appropriate facility for purposes of diagnosis. It was silent regarding the sanction for exceeding the time requirements. In holding that the consequence for violation of this rule was automatic dismissal, this court rejected the argument that a child should have to demonstrate prejudice before dismissal could be imposed. Doe, 93 N.M. at 33-34, 595 P.2d at 1223-24.
{33} We again considered Rule 49(b), N.M.R. Child. Ct. (Repl.Pamp.1979), in State v. Doe, 94 N.M. 282, 609 P.2d 729 (Ct.App.1980). We again upheld dismissal, this time rejecting the state’s argument that the child’s own actions in delaying the hearing acted as a waiver against the strict application of the time limits. Id. at 284, 609 P.2d at 731.
{34} In 1982, the rule was amended to read as follows:
(b) Time limits. When the [child] is in detention, the dispositional hearing shall begin within twenty days from the date the adjudicatory hearing was concluded or an admission of the factual allegations of the petition was accepted by the court, except as provided herein. The court may order that the [child] be transferred to an appropriate facility of the department of corrections for a period of not more than sixty days with respect to a child adjudicated as a child in need of supervision and for a period of not more than ninety days with respect to a child adjudicated as a delinquent for purposes of diagnosis and education. If the [child] is so transferred, the dispositional hearing shall begin within twenty days from the date the court receives the diagnostic report of the department. If the hearing is not begun within the times specified in this paragraph, the petition shall be dismissed with prejudice after notice and hearing if:
(1) the child has not agreed to the delay or has not been responsible for the failure to comply with the time limits; and
(2) the child has been prejudiced by the delay.
Rule 49(b), N.M.R. Child. Ct. (Repl. Pamp.1982). There are three major changes. First, the consequence of failure to meet time deadlines is express — dismissal with prejudice. Second, dismissal is no longer automatic but occurs if the child has not agreed to or been responsible for the delay and if prejudice is shown as a result of delay in the dispositional hearing. Third, commencement of the dispositional hearing for a child having been transferred for diagnostic purposes is no longer calculated from the date of the adjudicatory hearing, but rather from the date the diagnostic report is received. In the new language, the Supreme Court fashioned a rule that would take into consideration the reason for delay and prejudice, two factors that had been expressly rejected in interpreting the former rule. Doe, 94 N.M. at 284, 609 P.2d at 731; Doe, 93 N.M. at 33-34, 595 P.2d at 1223-24 (the Doe cases). The limitation for time spent in a diagnostic facility was treated separately from the time requirement for beginning the dispositional hearing.
{35} In 1986, the Supreme Court recompiled the rules, and Rule 49, N.M.R. Child. Ct. (Repl.Pamp.1982), became Rule 10-229 NMRA 1986. The form of the rule we are considering today was amended effective April 1,1997, and, as observed by the majority, appears to have no updated Committee Commentary. Majority opinion ¶22. The majority recognizes the substantial changes made to all of Rule 10-229 by the 1997 amendments. Id. ¶¶ 16-20.
{36} The 1997 amendments were based in part on the 1993 rewrite, of the Children’s Code, wherein the categories of youthful offenders and serious youthful offenders were established. See Michael S., 1998-NMCA-041, ¶ 3, 124 N.M. 732, 955 P.2d 201. Rule 10~229(B) NMRA 1997 specifically refers to trials in youthful offender proceedings. This section also establishes time limits for the commencement of dispositional “proceedings,” and the entire rule is retitled “Dispositional proceedings.” The prior version of the rule used the more limited term of “hearing” in the title and in the text of the rule. Rule 10-229 NMRA 1986. The current rule further relaxes the consequence for failure to begin the dispositional hearing (in this part of the rule, “hearing” is used) of a child in detention. Rule 10-229(B). The remedy is no longer dismissal, but rather release “on such conditions as appropriate until the dis-positional hearing can be commenced.” Id.
{37} The 1986 version of the rule calculated time limits from the conclusion of the adjudicatory hearing, from the date that the court accepts an admission of the petition allegations, or from receipt by the court of the diagnostic report. Rule 10-229(B) NMRA 1986. The period of time spent by a child in a diagnostic facility was limited to sixty or ninety days, depending on the adjudication. Id. The current version of the rule includes an entirely new subsection dealing with diagnostic commitment; this topic is no longer contained in the subsection dealing with time limits for commencement of dispositional proceedings. Rule 10-229(C). The language of Rule 10-229(C) allows the court to enter an order committing a child to a facility for diagnostic purposes and directs that the dispositional proceedings “shall be recommenced” within forty-five days after the filing of the court’s order. Id. The majority concludes that the Supreme Court, believing that it was critical to limit commitment time, intended to impose automatic dismissal as the remedy for violating the time requirements regarding commitment. Majority opinion ¶¶ 19, 22. While I agree that the time for commitment has been reduced, I do not agree this indicates that the remedy should be automatic dismissal. I will begin with the language of the statute. The operable words in this subsection are “shall” and “recommenced.” I will address them in reverse order.
{38} The word “recommence” means to commence or begin again. Webster’s Third New International Dictionary 1897 (3d ed.1976). Thus the use of the word “recommence” indicates that dispositional proceedings have already commenced. As observed by the majority, the trial court began the dispositional proceedings immediately after the adjudication. Majority opinion ¶ 13. Rule 10-229(B) indicates that once begun, the “dispositional proceedings shall be concluded as soon as practical[,]” thereby supporting the conclusion that once commenced, reasonable time is allowed for the conclusion of proceedings.
{39} I agree with the majority that the word “shall” is mandatory. I agree that the dispositional proceedings in this case should have been recommenced within forty-five days from the filing of the court’s order of commitment. I also agree with the majority that the key question relates to the consequences of missing the deadline. The majority points to Rule 10-229(D), which sets out the procedure for obtaining an extension for “commencing a disposition hearing,” and concludes that this section refers to recommencement of dispositional proceedings after commitment. I disagree. By its very language, Rule 10-229(D) refers to commencement, not recommencement, and to proceedings, not hearings. Consequently, extensions for recommencing dispositional proceedings would be governed by the general rule for time extension. Rule 10-106(B)(2) NMRA. In this ease, no motion was made, as required by this rule, because it appears that the court determined that the ninety-day period set forth in the Criminal Rules of Procedure applied. So we are left with a failure to comply with a deadline imposed by the rules, which is the subject of Rule 10-117.
Rule 10-117
{40} Following the Doe cases, the Children’s Court Rules have been amended to refine the consequences of missing the deadline for beginning dispositional hearings, as I have explained above. Effective in February 1982, the Supreme Court amended what is today Rule 10-117 to deal with those cases wherein the Children’s Court Rules are silent with regard to the sanction to be imposed when deadlines are missed. Rule 17, N.M.R. Child. Ct. (Repl.Pamp.1982). The pertinent language of Rule 10-117 states that “[ejrror or defect in any ruling, ... including failure to comply with time limits[,J is not grounds for ... dismissing an action, unless ... these rules expressly provide otherwise.” Rule 10-117.
{41} The Committee Commentary on Rule 10-117 indicates that the purpose of the amendment was to “clarify that failure to comply with time limits is not grounds for dismissal of an action unless expressly provided otherwise by the rules.” Id. Although the Commentary lists Rules 10-226, 10-229, and 10-308 NMRA as specifically requiring dismissal with prejudice for not meeting the time limits in the rules, there has been no update to the Commentary, and it does not reflect the current status of the rules. For example, Rule 10-308 is now Rule 10-320 NMRA, and recent amendments to Rule 10-229 are not considered.
Express Dismissal
{42} The majority contends that inclusion of the language in Rule 10-229(D) setting out the method by which an extension may be granted for commencement of a dispositional hearing indicates that the Supreme Court meant to include a provision dismissing the case if the time limit for recommencement of a dispositional proceeding is not met. I disagree. The majority points to similar extension language in Rules 5-604, 10-226, and 10-320, all of which contain express dismissal provisions, and concludes that the Supreme Court meant to include express dismissal in Rule 10-229. Rules 5-604, 10-226, and 10-320 deal with adjudication and trial, not with disposition or sentencing. Time requirements for the commencement of the adjudicatory phase of a case are treated differently from time requirements for the dispositional phase. The content of Rule 10-117 is clear: absent an express provision requiring dismissal, failure to comply with time limits in the Children’s Court Rules is not a ground for dismissal of an action. We interpret rules in the same manner as we interpret statutes. In re Michael L., 2002-NMCA-076, ¶ 9, 132 N.M. 479, 50 P.3d 574 (applying the same rules of construction to Supreme Court rules as to statutes). The legislature is also presumed to know its laws. Bd. of Comm’rs of Doña Ana County v. Las Cruces Sun-News, 2003-NMCA-102, ¶ 23, 134 N.M. 283, 76 P.3d 36 (stating that the court cannot say that the legislature “ ‘forgot’ ” to reassess a statute after amending another statute because the legislature is presumed to know the law). Similarly, the Supreme Court is presumed to know its rules; this supports the conclusion that the absence of an express provision for dismissal was intentional.
{43} The majority’s reading results in inconsistent applications of sanctions. If a child is in detention and there has been no conduct that would act as a waiver, failure to begin the dispositional hearing results in release from detention. If, however, a child has been committed for diagnosis and the proceedings are not recommenced as provided by the rule, the majority view results in dismissal of the entire case, regardless of waiver, prejudice, or any other factor that might bear on late commencement of the proceedings. The purpose of diagnosis is to help the court fashion a disposition that is in the best interests of the child and the public. § 32A-2-17(D). It makes little sense to require an automatic dismissal of a case for late recommencement of dispositional proceedings yet require release from detention in the general case. See Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 (observing that statutes are not to be read literally if such reading results in an unreasonable application). The history of the development of the rule points in the opposite direction. Automatic dismissal for failure to begin a dispositional hearing, as occurred at the inception of these rules, is no longer the case.
{44} While my reading of the rule would not allow dismissal for mere failure to comply with the time limit in Rule 10-229(C), my reading does not prevent a child from arguing for dismissal based on other grounds. For example, Rule 10-117 would allow dismissal when failure to meet the required deadline is inconsistent with substantial justice. There also may be cases wherein the facts would support a denial of due process or other constitutional violations. These alternative arguments were not made in this case.
{45} A child’s right to a speedy dispositional hearing is similar to the general right to speedy sentencing. This court has acknowledged the difference between the right to a speedy trial and the right to speedy sentencing in children’s court cases. In To-disco, we relied on Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.1986), in stating that “a delay in sentencing involves considerations different from those related to pre-trial delay. The alteration of a defendant’s status from accused and presumed innocent to guilty and awaiting sentence is a significant changef,] which must be taken into account....” Todisco, 2000-NMCA-064, ¶23, 129 N.M. 310, 6 P.3d 1032 (quoting Perez, 793 F.2d at 254). We went on to say that “[m]ost of the interests designed to be protected by the speedy trial guarantee ‘diminish or disappear altogether once there has been a conviction.’ ” Todisco, 2000-NMCA-064, ¶ 23, 129 N.M. 310, 6 P.3d 1032 (quoting Perez, 793 F.2d at 256). This type of language supports the interpretation that dismissal is not an automatic sanction when the forty-five — day deadline for recommencement of dispositional proceedings is not met.
CONCLUSION
{46} For the above reasons, I would not dismiss this case based on failure to comply with Rule 10-229(C).
{47} I therefore respectfully dissent.