Lead Opinion
OPINION
{1} Dеfendant, who was incarcerated pending trial, was granted a furlough to seek medical treatment. He absconded, a warrant was issued for his arrest, the trial date was vacated, and he was arrested on the warrant four days prior to the vacated trial setting and forty days prior to the expiration of an extension of the six-month rule that had been granted by the Supreme Court. After the extension expired, Defendant filed a motion to dismiss, which the district court denied. Defendant reserved this issue pursuant to a conditional plea. We affirm the district court’s interpretation of Rule 5-604(B)(5) NMRA as it applies to the facts of this ease, holding that the six-month limitation began anew when Defendant failed to appear at the jail as required by his furlough order and when he was arrested on the warrant for that failure to appear.
FACTS AND PROCEDURAL BACKGROUND
{2} On March 20, 2006, the New Mexico Supreme Court granted an extension of the six-month rule until September 27, 2006, and Defendant’s trial was set for August 22, 2006. While incarcerated, Defendant was attacked and beaten, suffering serious injuries, inсluding a broken jaw. He was granted a number of unescorted furloughs from jail to attend to his medical needs. The first furlough was granted on May 12 for May 15, and the last furlough was granted on June 14 for a medical appointment on June 22. On June 21, the district court noticed the trial for August 22. Defendant failed to return from the June 22 appointment, and a bench warrant was ordered by the district court on August 3, 2006, for “failing] to return to [jail] as directed” in the furlough order. Defendant was arrested on the warrant on August 18, 2006. Neither the prosecutor nor defense counsel was aware that Defendant had been arrested at that time. Defendant was arraigned on the warrant on August 28, and without any discussion as to trial deadlines, a trial date was set for January 2007 at that hearing.
{3} After the Supreme Court’s extension ran out on September 27, Defendant filed a motion to dismiss the case for failing to comply with Rule 5-604. Defendant maintains that because he was arrested four days prior to his trial date, there was no need to vacate the trial, and because he did not fail to appear at any hearing or proceeding, restarting the rule was unjustified. Defense counsel represented at the hearing on the motion to dismiss that his office had contacted the district court on August 7 and learned that because “the bench warrant was outstanding,” the trial date was “taken off the docket.” The district court did not agree with Defendant’s position as to the interpretation of the rule in this situation. In a letter opinion, it ruled that State v. Lucas,
DISCUSSION
{4} Rule 5-604(B)(5) states:
The trial of a criminal case or habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest:
(5) if the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or surrender of the defendant^]
We review the application of a rule by a district court de novo. State v. Donahoo,
{5} The issue in this ease is whether the “failure to appear” language in Rule 5-604(B)(5) is intended to mean only a failure to appear contrary to NMSA 1978, § 31-3-9 (1999), or whether the rule is intended to encompass other failures to appear as well. Defendant argues that there is no provision in the rule for failure to return from a furlough and that failure to appear under Rule 5-604(B)(5) occurs only when a defendant fails to appear before a judicial officer at a scheduled hearing. Section 31-3-9 is entitled “Failure to appear; penalty” and provides that a person “who willfully fails to appear before any court or judicial officer as required” is guilty of a criminal offense.
{6} The State contends that there is a statute, in addition to Section 31-3-9, which contains language concerning failure to appear; and that the Supreme Court’s intent in Rule 5-604(B)(5) was to reference that statute also. That statute is NMSA 1978, § 31-3-2 (1993), and it is entitled “Failure to appear; forfeiture of bail bonds.” It provides in part:
A. Whenever a person fails to appear at the time and place fixed by the terms of recognizance, the court may issue a warrant for his arrest.
B. Whenever a person fails to appear at the time and place fixed by the terms of his bail bond, the court:
(1) may issue a warrant for his arrest; and
(2) may declare a forfeiture of the bail.
The district court’s order for the warrant was for failing to return to the jail as ordered in the furlough order, and its warrant was for failing to comply with conditions of releаse.
{7} We need not decide in this case whether the State is correct that any time a warrant is issued for a failure to appear at a fixed time and place pursuant Section 31 — 3— 2(A), that circumstance automatically invokes the provisions of Rule 5-604(B)(5), and therefore we need not address the dissent’s explanation of the distinctions between failure to appear for court proceedings and failure to abide by conditions of release. In fact, in State v. Hicks,
{8} Despite this commentary, the actual holding of the Hicks case was that an order for the defendant tо post bond by a certain date did not require an appearance such that the failure to post bond could be punished under Section 31-3-9 as failure to appear. Hicks,
{9} Based on the Hicks case, wе acknowledge that it is uncertain that either Section 31-3-2 or 31-3-9 applies to extend the six-month rule in Defendant’s case, although arguments could be made that they do. However, the principles animating the Hicks decision and governing penal statutes simply do not apply to the interpretation of the six-month rule. The purpose of Rule 5-604 is “to assure the prompt trial and disposition of criminal cases, not to effect dismissals by such a technical application.” State v. Flores,
{10} The “technical application” that was being discussed in Flores was the situation where a defendant was not arrested after conditions of release had been revoked because he had no conditions of release; he was incarcerаted and was erroneously released from that incarceration. Id. at 45,
{11} This Court faced a similar situation, in which the precise language of the rule did not cover the facts, in State v. Jaramillo,
{12} A similar analysis is required in this ease. As we have said, the purpose of the six-mоnth rule is to promptly dispose of criminal cases. Apart from the initial arraignment, the purpose of the events triggering the running of the six-month rule in Rule 5-604(B) is to restart the rule when certain common events occur that make it reasonable to give the state another six months in which to try a defendant. The event applicable to this case is an arrest for failure to appear under Rule 5-604(B)(5). Because Defendant did fail to appear in the jail as fixed by the court’s furlough order, itself a criminal act under Hill,
{13} Finally, we note that in Flores, Jaramillo, and each of the other eases in which our courts have eschewed a technical interpretation of the rule, the state could have gotten an extension of the six-month limitation, but it did not even seek one, as was true in this case also. See generally State v. Mendoza,
CONCLUSION
{14} The district court’s denial of Defendant’s motion to dismiss and Defendant’s convictions are affirmed.
{15} IT IS SO ORDERED.
Dissenting Opinion
(dissenting).
{16} Both Defendant and the State agree that for purposes of this appeal, Defendant never missed a hearing in court. Because Defendant never failed to appear for any proceeding related to furthering the disposition of his criminal case, I cannot concur in the majority’s conclusion that resetting the six-month period under Rule 5-604(B)(5) was triggered by his “failure to appear.”
{17} Failing to abide by conditions of release is unrelated to appearing in a place or before an official where any matter in a pending case might be resolved. I use such language recalling that the criminal statute, Section 31-3-9 (Failure to Appear) was expanded after we held thаt failing to appear for a probation violation hearing was not a failure to appear for a “criminal proceeding” under the former statute. State v. Foster,
{18} By July 31, 2006, the State found out that Defendant had not returned to jail and requested a bench warrant, which was ordered by the district court on August 3 for “failing] to return to [jail] as directed” in the furlough order. At the hearing on the motion to dismiss, defense counsel represented to the court that his office had contacted the district court on August 7 and learned that the trial date was “taken off the docket” because “the bench warrant was outstanding.” On August 28, at the arraignment on the warrant and without any discussion as to trial deadlines or new extensions, a trial date was set for January 2007.
{19} Defendant maintains that because he was arrested four days before his August 22 trial date, there was no need to vacate the trial. I regard this argument as irrelevant. By August 22, there was no trial setting to miss. The trial date had been vacated at least ten days before Defendant was arrested. Vacating a trial date is within the district court’s discretion, and nothing here indicates that the court’s discretion was abused or that Defendant was prejudiced thereby. State v. Salazar,
{20} The case of a defendant who, without failing to appear at any hearing or proceeding, absconds but is returned prior to his trial date has not yet arisen in our jurisprudence. Rule 5-604(B)(5) states:
The trial of а criminal case or habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest:
(5) if the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or surrender of the defendant!!]
{21} When construing rules of procedure, we apply the same rules that are applicable to statutory construction. Walker v. Walton,
{22} At the hearing on the motion to dismiss in December 2006, the State argued nothing more than that Defendant’s “arraignment on a bench warrant ... triggered [Rule] 5-604.” This might explain vacating the trial date but not the State’s inaction during the time remaining on the rule. A mere “arrest” on a bench warrant is not the only requirement under Rule 5 — 604(B)(5), which triggers resetting the six-month period; the warrant must clearly be issued for “failure to aрpear.” That is the plain language of the rule. Additionally, Defendant escaped from custody; he did not fail to appear. Hill,
{23} The district court’s warrant was for failure to abide by conditions of release. Defendant was arrested on that warrant; he was not arrested for failure to appear. Defendant argues that there is no provision in the rule for failure to return from a furlough and that failure to appear under Rule 5-604(B)(5) occurs only when a defendant fails to appear before a judicial оfficer at a scheduled hearing..
{24} The criminal Failure to Appear statute has just such a provision, and Defendant contends that the statute “connects” to the rule. Section 31-3-9 makes it a crime to “willfully fail[ ] to appear before any court or judicial officer” when that person is “released pending any proceeding related to the prosecution or appeal of a criminal offense.” Id.; see Hicks,
{25} Despite the cause-and-effect relationship between Defendant’s absconding and the district court’s issuing a bench warrant and vacating thе trial date, causing a delay of the trial date is also not something that automatically triggers a new six-month period. Further, we have previously stated that “the purpose of the rule [is] to assure prompt disposition of criminal cases, not to effect dismissals by technical applications of the rule.” Solano,
{26} A reset of the six-month period under Rule 5-604(B)(5) requires some action by a defendant that is at least the equivalent of failing to appear in court. Earlier I suggested a workable view shy of the criminal act of failing to appear as directed, at a place or before an official where the resolution of any matter in a pending case might occur. The majority instead joins the State to assert by reference to Section 31-3-2 that being the subject of a warrant for failing to abide by conditions of release requiring one to appear at a time and place is also a failure to appear under Rule 5-604(B)(5). This view is too broad. Section 31-3-2 clearly differentiates between a defendant’s appearing at times and places fixed by “terms of recognizance,” Section 31-3-2(A), and failing to appear at times and places “fixed by the terms of his bail bond,” Section 31-3-2(B). I read Rules 5^101, -402, and -403 NMRA as distinguishing violations of bond for appearance in court, provoking a warrant and possible forfeiture of bond, from violations of the conditions of release, provoking a warrant and a hearing before the court to realign release conditions imposed under Rule 5-401(D). Such realignment to “assure orderly administration of justice” may revoke conditions of recognizance and hold a defendant for trial. Id. Indeed, such realignment happened previously in this case when Defendant was arrested on an earlier warrant for violating conditions of his release, resulting in his pretrial confinement with which we are now concerned. The hearing that followed this prior warrant arrest is analogous to the warrant arraignment that occurred on August 28, 2006. Once apprehended on the prior warrant, Defendant was ordered held for trial. Extensions of the six-month period that were required after this prior warrant arrest were obtained.
{27} Violating conditions of release does not necessarily impact commencement of a trial or judicial proceedings — the subject of Rule 5-604. Our Supreme Court’s opinion in State v. Romero,
{28} Failing to appear itself does not trigger resetting the six-month period under Rule 5 — 604(B)(5), nor is issuing a bench warrant for failure to appear a triggering event under a rule identical to Rule 5 — 604(B)(5). Granado,
{29} We stated clearly in State v. Guzman,
{30} The majority opinion calls attention to Flores and Jammillo in particular as two of the multiple eases it has cited “in which our courts have eschewed a technical interpretation of the rule,” noting that in each casе the state had foregone seeking an extension of the six-month limitation, “as was true in this case also.” While espousing a concept for failure to appear that is broader than the criminal statute, I disagree with the majority; neither Jaramillo nor Flores lacked a triggering event, as does this case, for rule-specific reset of the six-month period. It is also significant that a special concurrence in Jaramillo points out the necessity of limiting Jammillo, advocating that “whether a Rule 5-604 violation hаs occurred should be decided on a case-by-case basis” and that the Jammillo case “can be decided using settled applicable doctrines without trying to anticipate how to decide other Rule 5-604 cases that [have] come before us.” Jaramillo,
{31} Defendant was arrested on the district court’s warrant for failing to abide by conditions of release. See § 31-3-2. In this case, as in Granado, no warrant existed tо arrest the defendant for failure to appear, nor did there exist any legal authority to take him into custody for failure to appear. When he appeared, it was for arraignment on the warrant concerning conditions of release. Therefore, he did not surrender for failure to appear, nor was he arrested for it. Granado,