(dissenting).
A. Rule 93 relief was erroneously denied.
Defendant filed a motion for Rule 93 relief, § 21-1-1(93), N.M.S.A.1953 (Repl. Vol. 4). Defendant requested the court to direct the State to disclose any documents in its possession or control material to the defense. A hearing was held. It disclosed a written statement by Mary Gayton and a supplementary report by a detective in the Sheriff’s department. The trial court entered an order “that the Defendant’s motion is denied.” In its comments after the hearing, the trial court stated:
[Tjhere’s been no showing of any deliberate suppression or use of false evidence by the district attorney or any knowingly failing to give a statement that the district attorney had in the file. On its face, the Mary Gayton statement, in any event, would not appear, from a fair reading of that statement, to be in favor of the defendant.
Comments of a trial court after hearing and before entry of a final order cannot be relied on as the basis for error. Stone v. Stone, 79 N.M. 351, 443 P.2d 741 (1968). An oral opinion is not a decision, and error cannot be predicated on an oral opinion. Ellis v. Parmer, 76 N.M. 626, 417 P.2d 436 (1966).
Rule 93 relief is a civil proceeding and is governed by the rules of civil procedure. State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967). Rule 93(b) provides that the trial court must make findings of fact and conclusions of law. Salazar v. State, 83 N.M. 352, 491 P.2d 1163 (Ct.App.1971).
The defendant submitted findings of fact and conclusions of law. The State did not. The trial court-made none. Furthermore, the trial court did not determine whether the failure to disclose the Sheriff’s supplemental report was a reason for denying relief.
This case should be remanded to the district court to make findings of fact and conclusions of law. On this ground, I dissent from the maj ority opinion.
B. The Meaning of the Majority Opinion.
The majority opinion states:
Specifically, “material to the preparation of the defense” has a minimal meaning “material to the guilt or innocence of the accused”. We need not go beyond this minimal meaning to decide this case.
Rule 27(a)(5) of the Rules of Criminal Procedure [§ 41-23-27, N.M.S.A.19S3 (2d Repl.Vol. 6, 1973 Supp.)] provides for disclosure by the government. It reads:
(a) The defendant may serve on the district attorney a request to produce and permit the defendant to inspect, copy or photograph:
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(5) Any books, papers, documents, photographs, [of] [sic] tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defense or are intended for use by the state as evidence at the trial, or were obtained from or belong to the defendant ; .
The district attorney must, upon request of the defendant, produce any of the above described items which are favorable or unfavorable to the defendant, but which are necessary or essential in aiding the defendant in the preparation of his defense, i. e., which bear upon the guilt or innocence of the accused. This is broad terminology. The district attorney cannot hide behind negligent or deliberate suppression of any one of the items described. To do so denies the defendant a fair trial.
A paper or document which aids the State in proving the defendant’s guilt, even though not intended for use by the State as • evidence at the trial, may lead the defendant to discover evidence therein that will aid him in attempting to prove his innocence or it may corroborate the testimony of his defense.
The district attorney should not hesitate to show his entire file to the defendant. It is not the primary duty of the district attorney to convict a defendant. It is his primary duty to see that the defendant has a fair trial, that justice is done. State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.1974).