(specially concurring).
{18} I concur in the result of the majority opinion, but I respectfully disagree with the analysis. I write separately to address two issues central to the application of the six-month rule in the present cases. First, I do not consider the balancing test set forth by the majority to be consistent with the analysis currently set forth under New Mexico ease law. Second, I disagree with the majority’s assessment of State v. Lozano, 2008-NMCA-082, 144 N.M. 250, 185 P.3d 1100. I will address both issues together.
{19} I agree with the majority that in each of the courts of limited jurisdiction, there is an identical rule directing that the six-month rule clock is not automatically reset by the dismissal and refiling of a case in that particular court. Rule 6-506A(D) (magistrate courts), Rule 7-506A(D) (metro courts), Rule 8-506A(D) (municipal courts). There is no similar rule for district courts, nor is there a rule that governs cases that are dismissed in metro or magistrate court and then refiled in district court. Our case deals with a dismissal in magistrate court and the refiling of charges in the district court. For this type of ease, we look to case law.
{20} Generally, the state has the discretion to dismiss a criminal case in magistrate court and reinstate the charges in district court. Heinsen, 2005-NMSC-035, ¶ 25, 138 N.M. 441, 121 P.3d 1040. “Ordinarily, ... filing a nolle prosequi ends the previous proceeding and allows a new six-month period to run provided there was a reasonable basis to file the nolle prosequi.” Id. ¶ 26. Nevertheless, when a defendant challenges the state’s exercise of discretion in dismissing and refiling, the state must demonstrate “the bona fides of its procedure and that its actions were not taken to circumvent the six-month rule.” Bolton, 1997-NMCA-007, ¶ 8, 122 N.M. 831, 932 P.2d 1075; see also State v. Neal, 2008-NMCA-008, ¶ 9, 143 N.M. 341, 176 P.3d 330 (explaining that when a defendant “claims that the [s]tate has filed a nolle prosequi and reinstituted charges in order to circumvent the six-month rule, then the burden is on the [s]tate to demonstrate ... that it did not take its actions to circumvent the six-month rule or for other bad reasons” (internal quotation marks and citation omitted)). In sum, “[p]rosecutors may ordinarily do what they wish-unless there is a bad reason for what they do, in which event the court will supervise it in a way that might prevent the prosecution.” Bolton, 1997-NMCA-007, ¶ 11, 122 N.M. 831, 932 P.2d 1075.
{21} “[A] de novo standard is applied to determine the type of reasons that will justify a dismissal without [Rule] 5-604 sanctions or the type of analysis that should be utilized in these cases.” Bolton, 1997-NMCA-007, ¶ 13, 122 N.M. 831, 932 P.2d 1075. This Court has previously reviewed the New Mexico cases on this issue and has distilled the situations in which the state successfully met its burden: “fluctuations in the stories of witnesses, the unavailability and subsequent reappearance of witnesses, ... newly discovered evidence^] ... when the trial court rejects a plea bargain, when the defendant is in a pre-prosecution diversion program, and when an event is to the mutual benefit of the parties.” State v. Rayburns, 2008-NMCA-050, ¶ 11, 143 N.M. 803, 182 P.3d 786 (internal quotation marks and citations omitted). A new six-month period begins to run in the district court when the state files a nolle prosequi after a magistrate court’s suppression order, as long as the state shows that it acted in order to preserve its right to appeal and that it did not do so for purposes of delay. Id. ¶¶ 13, 15. On the other hand, “lack of preparedness, delay, and circumvention of the six-month rule or other rules of procedure are improper purposes, for which the state does not receive the benefit of a new six-month period in district court.” Id. ¶ 12.
{22} In Carreon, this Court first considered the effect of a policy identical to the one followed by the prosecutor in the cases before us. Relying on the analysis in prior cases, we held that “the mere existence of the prosecutorial policy of dismissing every magistrate court case that is not settled before the six-month deadline is insufficient to sustain the [s]tate’s burden.” 2006-NMCA-145, ¶¶ 7, 11, 140 N.M. 779, 149 P.3d 95.
{23} In Lozano, we addressed a policy similar to the policy in Carreon and the policy used in the eases before us, but we came to a different conclusion. Lozano, 2008-NMCA-082, ¶¶ 3, 5, 7, 144 N.M. 250, 185 P.3d 1100 (affirming the district court’s denial, based on violation of the six-month rule in magistrate court, of the defendant’s motion to dismiss). Two factual issues were dispositive in Lozano. First, the timeline of the filing in magistrate court, the dismissal, and the refiling in district court indicated that the state was not attempting to circumvent the six-month rule. Id. ¶ 6. The trial date in district court was set for only a few weeks after the magistrate court six-month period was due to expire. Id. Second, the state offered testimony to explain the policy and the motivation of the prosecuting attorney. Id. ¶ 5. “Th[is] testimony and time line ... gave the district court a factual basis for finding that there was no intent to circumvent the six-month rule or other improper motive for the [s]tate’s actions.” Id. ¶ 6.
{24} Now turning to the cases before us, I agree that the district court should be affirmed, but I base my conclusion on the analysis articulated in Carreon and Lozano. The timelines in the cases before us demonstrate that in Defendant Yates’s and Defendant Savedra’s cases, a significant period of time elapsed between when the magistrate court six-month rule would have expired and the trial date that was set in district court. For Defendant Yates, the magistrate court six-month period expired on July 26, 2006, and the district court trial date was set for November 28, 2006. Defendant Savedra’s magistrate court six-month period expired on September 3, 2006, and his district court trial date was set for December 5, 2006. In both cases, the magistrate court six-month period had lapsed for a few months, not the “few weeks” this Court accepted in Lozano. Id. ¶ 6. In the current Defendant Lozano’s case, the magistrate court six-month period expired on October 30, 2006, and this district court trial date was also set for December 5, 2006. Only six weeks would have elapsed between the expiration of the magistrate court period and the date for trial. I acknowledge that this shorter time frame operates in the State’s favor as evidence of good faith; however, in none of the eases did the State offer any testimony or evidence to explain its motivations, as was done in Lozano. The prosecutor in Lozano testified as follows:
We’re trying to do it as quickly as possible so that the eases do get resolved as quickly as possible. We’re not just concerned about the six-month rule, we’re concerned about speedy trial.... If it [cannot] be [resolved in magistrate court, we want to] get [it to] district court as quickly as possible.
Id. ¶ 5 (alterations in original) (internal quotation marks omitted). The prosecutor in the present eases stated that there was no bad faith, but he did not explain how the State intended to avoid multiple trials without running afoul of either the technical application or the spirit of the six-month rule. The State relied exclusively on the Fifth Judicial District policy to dismiss and refile when it is apparent that no settlement is possible. The majority properly explains that reliance on a policy of dismissing and refiling is not enough by itself to satisfy the State’s burden. Majority Opinion ¶ 8; see also Carreon, 2006-NMCA-145, ¶ 11, 140 N.M. 779, 149 P.3d 95. Thus, under current New Mexico law, I would affirm the district court’s dismissal because the State did not meet its burden in any of the cases.
{25} My review of case law demonstrates that New Mexico appellate courts have provided significant guidance when analyzing whether the state should be allowed a new six-month period in district court. Carreon and Lozano provide guidance when a policy regarding dismissals is evaluated. The majority, however, reaches its conclusion by implementing a balancing test that weighs “the State’s strong interest in enforcing [criminal laws] and managing criminal prosecutions” against “the State’s and Defendants’ countervailing interest in the orderly and prompt disposition of criminal cases.” Majority Opinion ¶ 9 (alteration in original) (internal quotation marks and citations omitted).
{26} I disagree with this approach. By characterizing our prior case law as effectively imposing such a balancing test, the majority in this case does away with the general rule allowing prosecutors to exercise their discretion “unless there is a bad reason for what they do.” Bolton, 1997-NMCA-007, ¶ 11, 122 N.M. 831, 932 P.2d 1075. I agree that Heinsen explains that “[t]he district court may inquire into the reasons for the dismissal to resolve the conflict between the policies underlying the six-month rule and the prosecutor’s discretion to decide where to prosecute criminal charges and otherwise manage the prosecution.” 2005-NMSC-035, ¶ 26, 138 N.M. 441, 121 P.3d 1040. This language, however, does not change the analysis. If a balancing test is to be used, I believe it is up to our Supreme Court to implement this new approach. It is not the prerogative of this Court to articulate a new test, particularly when the Supreme Court has already espoused an analysis that examines the state’s motivation for dismissing and refiling. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973).
{27} Despite the differences between Lozano and the current cases, the majority opinion chooses to reject the analysis of this Court in Lozano. Majority Opinion ¶ 12. I cannot agree with this approach for two reasons. First, it is unnecessary. As I have demonstrated, it is possible to distinguish Lozano without disavowing the approach taken by a different panel of this Court. Second, I consider it to be “more important for this Court to follow its own precedent than to allow the rights of the parties to be governed by which panel of judges is assigned to the case.” Arco Materials, Inc. v. Taxation & Revenue Dep't, 118 N.M. 12, 17, 878 P.2d 330, 335 (Ct.App.1994) (Black, J., specially concurring).
{28} I agree that questions regarding the application of the six-month rule can arise when a case is dismissed from magistrate court and refiled in district court. Perhaps it would be helpful for the Supreme Court to consider amending the Rules of Criminal Procedure for district courts and magistrate courts in order to explain under what circumstances the arraignment in magistrate court would remain the triggering event for application of the district court six-month rule and under what circumstances a new six-month rule would begin. But until the Supreme Court does so, I do not believe it is the prerogative of this Court to do so by case law that implicitly overrules cases of both the Supreme Court and this Court.
{29} For the reasons listed above, I concur in result, but I cannot concur in the analysis used by the majority to arrive at that result.