IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMSC-030
Filing Date: June 17, 2009
Docket No. 31,372
RICHARD D. DURAN,
Petitioner,
v.
HON. GEORGE P. EICHWALD,
DISTRICT COURT JUDGE,
THIRTEENTH JUDICIAL DISTRICT COURT,
Respondent,
and
BOGLARKA FOGHI, ASSISTANT DISTRICT
ATTORNEY, and LEMUEL MARTINEZ,
THIRTEENTH JUDICIAL DISTRICT ATTORNEY,
Real Parties in Interest.
ORIGINAL PROCEEDING
Daniel J. Tallon
Albuquerque, NM
for Petitioner
Boglarka Foghi, Assistant District Attorney
Bernalillo, NM
Lemuel Lawrence Martinez, District Attorney
Grants, NM
for Real Parties in Interest
OPINION
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PER CURIAM.
{1} We are faced in this case with the difficult task of dismissing a criminal prosecution
without a trial on the merits because of the prosecution’s failure to bring this matter to trial
in a timely manner. The charges of child abuse alleged in this case are, of course, serious
ones, which we do not dismiss lightly. But for the reasons set forth below, we conclude that
dismissal is the only option available to us under the circumstances of this case. We
nevertheless take this opportunity to express our dissatisfaction with the procedural dilemma
posed by this case and take steps to provide our courts with greater discretion to address
situations like this one in the future.
BACKGROUND
{2} The problem we must address in this extraordinary writ proceeding has its origins
in a prior proceeding before this Court filed under Rule 5-604 NMRA of our Rules of
Criminal Procedure for the District Courts. Rule 5-604(B), commonly referred to as the six-
month rule, requires the commencement of trial in a criminal proceeding within six months
of the latest of several different triggering events. If it becomes apparent that trial cannot
commence within the six-month time period, the district court, for good cause shown, may
extend the time for commencing trial up to an aggregate of six additional months. See Rule
5-604(C). Any additional extensions of time must be sought from this Court. See Rule 5-
604(D).
{3} In the underlying criminal proceeding, the defendant (Petitioner, in this case),
Richard D. Duran, was indicted for two counts of negligent child abuse resulting in great
bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2005, as amended). Petitioner
was arraigned on August 27, 2007, which therefore required the commencement of trial no
later than February 27, 2008. See Rule 5-604(B)(1). Thereafter, the State petitioned and the
district court granted a six-month extension of time, which extended the commencement of
trial until August 27, 2008. On September 24, 2008, twenty-eight days after expiration of
the trial deadline, the State filed a petition with this Court asking for an additional six-month
extension of time until February 27, 2009. In its petition, the State represented that Mr.
Duran objected to the petition for an extension of time and that the district court had set a
definite trial setting for October 7, 2008. Mr. Duran did not file a response to the State’s
petition, and after the time for doing so had expired, this Court partially granted the State’s
request for an extension of time until November 28, 2008.
{4} On October 14, 2008, Mr. Duran filed with this Court a petition for a writ of
prohibition or superintending control. Mr. Duran’s petition asked this Court to reconsider
its order granting the State an extension of time to commence trial and to enter an order
prohibiting the district court from setting the underlying criminal proceeding for trial until
this Court could rule on his petition. Mr. Duran represented that the State (1) never served
him with a copy of the petition for extension of time filed in this Court, (2) never inquired
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whether he opposed the request for an extension of time, (3) failed to obtain a definite trial
setting from the district court as required by Rule 5-604(E), and (4) failed to disclose in its
petition to this Court that Mr. Duran had already filed a motion to dismiss in the district
court for violation of the six-month rule. After receiving the State’s response and Mr.
Duran’s subsequent reply, we set the matter for hearing.
{5} At the conclusion of the hearing, we announced our decision ordering the district
court to dismiss the charges against Mr. Duran because the State failed to file a timely
petition for extension of time and failed to establish any exceptional circumstances to excuse
the delay. We also expressed our reluctance to dismiss the charges because of the public’s
interest in seeing the charges resolved on their merits. But because there was no alternative
to dismissal under Rule 5-604, we also announced from the bench our decision to
immediately suspend the operation of Paragraph F of the rule until further order of the Court,
so that dismissal would not be automatically required in future cases like this one.
DISCUSSION
{6} As noted above, the State failed to request an extension of time to commence trial
from this Court until twenty-eight days after the expiration of the prior extension of time
granted by the district court. Rule 5-604(E) provides that a petition for extension of time to
commence trial “may be filed within ten (10) days after the expiration of the applicable time
limit if it is based on exceptional circumstances beyond the control of the parties or trial
court which justify the failure to file the petition within the applicable time limit.” Because
the State’s untimely petition did not fall within the ten-day grace period in Paragraph E of
the rule, the State forfeited its right to seek an extension of time from this Court. Moreover,
for the reasons set forth below, even if the State’s petition had been filed within the ten-day
grace period, the State failed to establish exceptional circumstances to justify its untimely
request for an additional extension of time.
{7} Although the State filed its petition for extension of time with this Court twenty-eight
days late, the petition failed to acknowledge the untimeliness nor did it recognize the need
to establish exceptional circumstances justifying the untimely filing. During the hearing
before this Court, the State conceded that the petition did not detail the exceptional
circumstances justifying the delay in filing. In a belated attempt to provide that justification,
the State sought to rely on the existence of ongoing plea negotiations and defense counsel’s
purported agreement several months earlier to concur in a request for an additional extension
of time. We assume, without deciding, that plea negotiations were ongoing and that at one
point defense counsel may have been willing to concur in an extension of time in furtherance
of those plea negotiations. Nevertheless, neither circumstance explains nor justifies why it
was beyond the State’s control to at least request an extension of time from this Court in a
timely manner. See State v. Sandoval, 2003-NMSC-027, ¶ 3, 134 N.M. 453, 78 P.3d 907
(recognizing that a timely petition is required under Rule 5-604 “[a]bsent exceptional
circumstances beyond the control of the State or the trial court”); cf. State v. Dominguez,
2007-NMCA-132, ¶ 11, 142 N.M. 631, 168 P.3d 761 (noting that the prosecutor’s inability
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to reach defense counsel to obtain and state the defendant’s position with respect to a
petition for extension of time, did not prevent the prosecutor from timely filing the petition).
{8} We also reject the State’s attempt to equate inadvertence with an exceptional
circumstance, justifying the filing of the untimely petition. To do otherwise would allow
prosecutorial neglect to swallow the requirement in the rule that exceptional circumstances
beyond the control of the parties or court must be present if an untimely petition for
extension of time is to be considered. By definition, neglect or inadvertence simply are not
matters beyond the control of the prosecution. See Dominguez, 2007-NMCA-132, ¶ 11
(rejecting prosecutorial inadvertence due to a heavy caseload as an exceptional circumstance
justifying the late filing of a petition for extension of time).
{9} Given the State’s complete failure to establish exceptional circumstances justifying
its untimely petition, and given that the petition was nonetheless filed beyond the ten-day
grace period in Rule 5-604(E), dismissal of the charges with prejudice is mandatory. See
Rule 5-604(F) (providing that when the trial of a person is not commenced within the time
limits prescribed by the rule “the information or indictment filed against such person shall
be dismissed with prejudice” (emphasis added)); see also State v. Carreon, 2006-NMCA-
145, ¶ 6, 140 N.M. 779, 149 P.3d 95 (noting the mandatory nature of the word “shall”).
While dismissal is unavoidable in this case, we are troubled by an outcome that precludes
a trial on the merits because of a procedural rule violation for which there has not been a
clear showing of prejudice to the accused. We do not mean to suggest that unnecessary
delay is of no consequence to the accused. The mere fact that unresolved charges remain
hanging over the accused can cause a great deal of anxiety and financial burden. Cf.
Salandre v. State, 111 N.M. 422, 425, 806 P.2d 562, 565 (1991) (recognizing within the
speedy trial context the prejudice that the accused can suffer from a delay in trial even if the
defense itself is not impaired by the delay).
{10} The six-month rule is the mechanism by which we “assure prompt disposition of
criminal cases.” State v. Cardenas, 2003-NMCA-051, ¶ 12, 133 N.M. 516, 64 P.3d 543
(internal quotation marks and citation omitted). Accordingly, application of the six-month
rule should account for the delay inherent in bringing cases to trial, but because the six-
month rule gives district courts the authority to grant extensions up to twelve months, it is
generally up to the district courts to keep cases moving toward trial with reasonable
promptness. Therefore, we urge the district courts to rely on this rule to manage inordinate
delay in prosecutions and grant extensions cautiously.
{11} That said, most procedural rule violations will not automatically result in a new trial
or the outright dismissal of charges, unless the accused can demonstrate actual prejudice to
the defense. See generally State v. Padilla, 2000-NMCA-090, ¶ 19, 129 N.M. 625, 11 P.3d
589 (noting that ordinarily a “harmless error analysis is applied where the procedural
requirement determined to have been violated is thought to contribute to the reliability of the
truth-finding process”). No showing of that kind of prejudice was established in this case,
though of course, no such showing is required for a six-month rule violation. See State v.
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Cardenas, 2003-NMCA-051, ¶ 12, 133 N.M. 516, 64 P.3d 543; see also Padilla, 2000-
NMCA-090, ¶ 20 (noting also that a harmless-error analysis may be “inappropriate where
the procedural right determined to have been violated serves ‘an independent value besides
reliability of the outcome’” (quoting United States v. Lane, 474 U.S. 438, 474 (1986)
(Stevens, J., concurring in part, dissenting in part))).
{12} But even if we had the discretion not to impose dismissal for the six-month rule
violation in this case, it would be just as troubling to let the State’s tardiness and
miscommunications pass without any sanction. In particular, as mentioned above, the
circumstances of this case suggest that the State’s petition may not have provided this Court
with a full disclosure of all the relevant facts bearing on the State’s request for an extension
of time. For example, although the State’s petition for extension of time contained a
perfunctory statement that “Defendant objects to this Petition,” the petition did not advise
this Court that Mr. Duran had actually filed a motion to dismiss in district court because of
the six-month rule violation. When asked at the hearing before this Court why the petition
did not contain that information, the prosecutor represented that she was unaware of the
motion to dismiss at the time the petition was filed with this Court. However, when asked
to explain how the prosecutor ascertained whether defense counsel opposed or consented to
the State’s petition, the prosecutor inconsistently stated that she simply assumed the petition
would be opposed, given that the defense had already filed a motion to dismiss in the district
court.
{13} The prosecution fostered a similar misperception regarding whether the State had
already obtained a definite trial setting from the district court in support of its extension
request. See Rule 5-604(E) (requiring as part of the showing of good cause in the petition,
“a statement of a definite trial date that the petitioner has already obtained from the district
court within the time period of the extension request”). The petition included a statement
of a definite trial date of October 7, 2008 and attached in support of that representation an
amended scheduling order dated April 7, 2008. However, it came to light during the hearing
before this Court that the April 7, 2008 scheduling order was replaced by a second amended
scheduling order dated April 10, 2008, which changed the trial date to July 8, 2008, a date
that was not within the period of the State’s extension request. Moreover, during a hearing
before the district court on June 27, 2008, the district court reminded the parties that the six-
month rule was set to expire on August 27, 2008 and specifically alerted the prosecutor of
the need to obtain a definite trial setting from the district court in anticipation of the State
filing a request for an extension of time from this Court.
{14} In light of the State’s failure to properly attend to its duties under the six-month rule,
there must be some consequence for the State’s missteps and miscommunications in this
case. And while dismissal may seem like an excessive remedy, unfortunately, no less drastic
remedies are available to us under the version of the six-month rule in effect for this case.
Not having the discretion to consider lesser sanctions for the State’s failure to bring this case
to trial in a timely manner, we are left with no choice but to order the charges against Mr.
Duran dismissed with prejudice.
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{15} Because of our dissatisfaction with the way the dismissal provision of the six-month
rule operated in this case, as noted above, we immediately suspended the provisions in
Paragraph F of the rule as part of our ruling from the bench at the conclusion of the hearing
in this case. Shortly after issuing the writ in this case, we subsequently amended Rule 5-
604(F) and the corresponding versions of the six-month rule for courts of limited jurisdiction
and the children’s court, to give the lower courts and this Court the discretion to decide
whether the failure to timely commence trial should result in dismissal of the charges or
whether some other sanction would be more appropriate under the circumstances of the case,
such as monetary sanctions against the attorney or a change in the defendant’s conditions of
release. See Supreme Court Order 08-8300-052 (amending to Paragraph F of Rule 5-604 to
provide that upon violation of the rule the indictment or information “may be dismissed with
prejudice or the court may consider other sanctions as appropriate”); see also Supreme Court
Orders 08-8300-053 to -058 (amending Rules 6-506, 6-703, 7-506, 7-703, 8-506, 8-703, and
10-343 NMRA); Supreme Court Order 09-8300-003 (amending Rule 10-243 NMRA). In
addition, we have directed our rules committees to consider whether to recommend different
or additional revisions to the rules that might more effectively address the problems revealed
by this case. In the interim, we expect that our six-month rule provisions, as currently
amended, will be applied in a manner that holds the prosecution accountable for its duty to
bring the accused to trial in a timely manner. Dismissal is no longer the only available
sanction. Of course, if the trial of the case is not commenced on or before the deadline
allowed by this Court, the matter shall be dismissed with prejudice.
CONCLUSION
{16} Because of the State’s violation of Rule 5-604, this case is remanded to the district
court to dismiss the pending charges against Defendant in cause number D-1329-CR-2007-
439.
{17} IT IS SO ORDERED.
____________________________________
EDWARD L. CHÁVEZ, Chief Justice
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
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CHARLES W. DANIELS, Justice
Topic Index for Duran v. Eichwald, No. 31,372
CA CRIMINAL PROCEDURE
CA-CP Criminal Procedure, General
CA-DF Delay in Filing
CA-DC Dismissal of Charges
CA-TL Time Limitations
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