1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 28,919
5 RICHARD AMARO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Karen L. Townsend, District Judge
9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Hugh W. Dangler, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 CASTILLO, Judge.
19 Defendant appeals from the district court’s order that affirms his magistrate
20 judgment and sentences for driving with a revoked/suspended license and for failing
1 to report to the detention center. [RP 2, 3, 52] Defendant appeals specifically from
2 the district court’s affirmance of his May 12, 2008 magistrate judgment and 364-day
3 sentence based on his failure to report to the detention center. [RP 2; DS 2-3] Our
4 second notice (1) viewed the 364-day sentence as the result of the magistrate judge’s
5 decision to hold Defendant in indirect contempt based on his failure to report to the
6 San Juan Detention Center as required by the April 8, 2008 commitment order [RP 14-
7 15]; and (2) proposed to hold that Defendant was not afforded the proper procedures
8 for contempt. See generally NMSA 1978, § 35-3-9 (1991) (providing that a
9 magistrate has jurisdiction to punish for contempt for disobedience of any lawful order
10 of the court); Rule 6-111(B) NMRA (providing that a contempt shall be punished only
11 after notice and hearing). The State filed a timely response to our second notice,
12 providing that it is unable to offer any facts or law to challenge the proposed
13 disposition and that it agrees with the analysis and approach taken in the second
14 notice.
15 Accordingly, based on the reasons set forth in our second notice, we reverse the
16 district court’s affirmance of Defendant’s May 12, 2008, judgment and sentence, and
17 remand to the district court for Defendant to be afforded an appropriate de novo
18 contempt proceeding.
19 IT IS SO ORDERED.
2
1 ________________________________
2 CELIA FOY CASTILLO, Judge
3 WE CONCUR:
4 ________________________________
5 JAMES J. WECHSLER, Judge
6 ________________________________
7 ROBERT E. ROBLES, Judge
3
1 DISCUSSION
2 TO: JUDGE CASTILLO
3 FROM: LEE ANN MCMURRY MOYA
4 RE: STATE V. AMARO, CT.APP.NO. 28,919
5 DATE: JUNE 5, 2009
6 I recommend issuance of a memorandum opinion that reverses the district
7 court’s affirmance of Defendant’s May 12, 2008, judgment and sentence, and remands
8 to the district court for Defendant to be afforded an appropriate contempt proceeding.
9 As you recall, this is the case wherein Defendant appeals from the district
10 court’s affirmance of his magistrate sentence for “failure to check into the San Juan
11 Detention Center.” Rather than view the judgment at issue as a refashioning of
12 Defendant’s initial sentence for driving with a revoked license, this Court instead
13 viewed the judgment to be the result of the magistrate judge’s decision to hold
14 Defendant in contempt based on his failure to check into the detention center.
15 Problematically, however, Defendant was not afforded the appropriate contempt
16 proceedings below. For this reason, our second notice proposed to reverse and
17 remand to the district court with instructions that Defendant be afforded a de novo
18 contempt proceeding. The State filed a timely response [Ct.App.File, white clip],
19 providing that it agrees with the proposed disposition. For this reason, I recommend
20 issuance of the attached memorandum opinion that reverses and remands.
21 Lastly, in light of our previous discussions whether we should remand to the
22 magistrate court or district court, I think that City of Las Cruces v. Sanchez, 2007-
23 NMSC-042, 142 N.M. 243, 164 P.3d 942, supports the decision to remand to the
24 district court. In that case, the municipal court judge mid-trial ruled that the
25 defendant’s arrest was illegal and dismissed the charges. The City appealed to the
26 district court, which dismissed the City’s appeal in the mistaken belief that the City
27 had no right to appeal. The Supreme Court held that the district court did have
28 jurisdiction to consider the appeal, and reversed and remanded to the district court for
29 a trial de novo. I think Sanchez is significant because the Court remanded to the
30 district court for a de novo trial, even though a trial on the merits did not come to
31 fruition in the municipal court. Similarly, in the present case, I think it is appropriate
32 to remand to the district court for a de novo contempt hearing, even though such
33 hearing had not been held (although the need for such was argued, RP 63-64, 68) in
34 the magistrate court. See also State v. Foster, 2003-NMCA-099, ¶ 9, 134 N.M. 224,
35 75 P.3d 824 (recognizing that “[i]n a de novo appeal, in contrast to appeals on the
36 record, a district court conducts a new trial as if the trial in the lower court had not
37 occurred”). The matter of which court to remand to is confusing, but fortunately
38 neither party disputes that district court is the appropriate forum.
39