June 3, 2025- State of New Mexico v. Malcolm Zehr, No. A-1-CA-40963

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: June 3, 2025	3
No. A-1-CA-40963	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
MALCOLM ZEHR,	8
Defendant-Appellee.	9
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY	10
Jeffrey Shannon, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Van Snow, Deputy Solicitor General	14
Mark W. Allen, Assistant Attorney General	15
Albuquerque, NM	16
for Appellant	17
Kathryn J. Hardy Law, LLC	18
Kathryn J. Hardy	19
Taos, NM	20
for Appellee	21
Court of Appeals of New Mexico
Filed 6/3/2025 1:03 PM

OPINION	1
BACA, Judge.	2
{1} 	Defendant Malcolm Zehr was charged in magistrate court with aggravated	3
driving while under the influence of intoxicating liquor or drugs (DWI) and	4
negligent use of a deadly weapon. Following the State’s unsuccessful appeal to the	5
district court related to a magistrate court order suppressing evidence, which led to	6
remand to the magistrate court and the State’s ensuing dismissal of the charges in	7
magistrate court and initiation of the same case in district court, the district court	8
granted Defendant’s motion to dismiss for violation of the time limits set forth in	9
Rule 6-506(B) NMRA. On appeal to this Court, the State argues that the district	10
court erred by granting Defendant’s motion to dismiss because Rule 6-506(B)(4)	11
resets the 182-day deadline within which the State must bring Defendant to trial	12
upon remand from an appeal, regardless of whether there is a constitutional or	13
statutory basis to appeal, an issue of first impression. Because we hold that the 182-	14
day deadline within which the state must bring a defendant to trial is not reset upon	15
remand from an appeal filed without any constitutional or statutory basis, we affirm.	16
BACKGROUND	17
{2} 	Because a clear understanding of the procedural history for this case is	18
essential to comprehending the resolution of this appeal, we take time here to set out	19
the history of this case in some detail. We begin with the arrest of Defendant on	20

2
March 6, 2022. Following his arrest, Defendant was arraigned in magistrate court on	1
March 7, 2022. On June 9, 2022, while awaiting trial on the charges, Defendant filed	2
a motion to dismiss the charges for discovery violations by the State. On July 7,	3
2022, the magistrate court held a hearing on Defendant’s motion to dismiss. At the	4
hearing, the magistrate court found that the State did not comply with its discovery	5
obligations, and rather than dismissing the case, excluded the testimony of certain	6
witnesses and evidence. On July 20, 2022, the magistrate court issued its order	7
excluding the testimony of the witnesses and evidence based on the discovery	8
violations. In an attempt to appeal the magistrate court order excluding evidence, the	9
State filed a notice of appeal in the district court on July 22, 2022. The notice of	10
appeal was also filed in the magistrate court on August 4, 2022.	11
{3} 	The State’s notice of appeal was filed in district court cause number D-820-	12
LR-2022-00010 on July 22, 2022. On October 12, 2022, Defendant filed, in district	13
court cause number D-820-LR-2022-00010, a motion to dismiss the State’s appeal	14
for lack of subject matter jurisdiction. On October 21, 2022, the district court granted	15
Defendant’s motion to dismiss and issued its order dismissing the State’s appeal. In	16
its order, the district court found that the State has no constitutional or statutory basis	17
to appeal a magistrate court’s suppression order, and that the practical finality	18
exception to the final judgment rule is not applicable to magistrate court suppression	19
orders. See State v. Heinsen, 2005-NMSC-035, ¶¶ 1, 8, 12, 22, 30, 138 N.M. 441,	20

3
121 P.3d 1040 (“We hold that there is no constitutional or statutory basis for an	1
appeal by the [s]tate from a suppression order of a magistrate court. We also hold	2
the practical finality exception to the final judgment rule is not applicable.”). The	3
district court also found that the proper procedure for the State to follow in order to	4
obtain judicial review of a magistrate court’s suppression order is to file a nolle	5
prosequi in magistrate court and refile the case in district court. See id. ¶ 23 (“At any	6
time prior to trial, the [s]tate may dismiss a case without prejudice by filing a nolle	7
prosequi. . . . Once jurisdiction lies in the district court, the [s]tate can obtain full	8
judicial review of a suppression order.”). Consequently, the district court remanded	9
the case to the magistrate court for further proceedings. The district court’s order	10
dismissing the State’s appeal and remanding to the magistrate court was filed in the	11
magistrate court on October 27, 2022.	12
{4} 	Following remand to the magistrate court, the State filed a notice of dismissal	13
on November 3, 2022, thereby dismissing the charges in the magistrate court. That	14
same day, the State refiled the charges against Defendant in the district court in cause	15
number D-820-CR-2022-00190.	16
{5} 	On December 8, 2022, Defendant filed a motion to dismiss in cause number	17
D-820-CR-2022-00190 for violation of Rule 6-506(B), which requires in relevant	18
part, that a defendant’s trial commence in magistrate court within 182 days of either	19
the date of arraignment or the date the mandate or order is filed following a remand	20

4
from an appeal, whichever is later. See Rule 6-506(B)(1), (4). At the hearing on the	1
motion to dismiss, Defendant argued that an improper appeal cannot restart the 182-	2
day time limit within which the State must bring a defendant to trial in magistrate	3
court. Conversely, the State argued that Rule 6-506(B)(4) resets the deadline within	4
which the State is required to bring Defendant to trial regardless of whether the	5
appeal is valid. In its “Order Granting Defendant’s Motion to Dismiss for Violation	6
of Rule 6-506,” issued on February 1, 2023, the district court ruled that “an appeal	7
with no constitutional or statutory basis cannot trigger the resetting of the rule date	8
based upon [Rule] 6-506[(B)](4),” and that “the time limits under [Rule] 6-506[(B)]	9
had expired in the magistrate court without the case being brought to trial before the	10
State dismissed and refiled in the district court.” Therefore, the district court granted	11
Defendant’s motion and dismissed the case against him with prejudice. See Rule 6-	12
506(E)(2) (“In the event the trial of any person does not commence within the time	13
limits provided in this rule, including any court-ordered extensions, the case shall be	14
dismissed with prejudice.”). The State appeals from this order.	15
DISCUSSION	16
{6} 	The State argues on appeal, as it did below, that the district court erred by	17
granting Defendant’s motion to dismiss because Rule 6-506(B)(4) resets the 182-	18
day deadline within which the State must bring Defendant to trial upon remand from	19
an appeal, regardless of whether there is a constitutional or statutory basis to appeal.	20

5
The 	State’s 	argument 	requires 	us 	to 	interpret 	Rule 	6-506(B). 	“The 	proper	1
interpretation of our Rules of Criminal Procedure is a question of law that we review	2
de novo.” State v. Ayon, 2022-NMCA-003, ¶ 7, 503 P.3d 405 (internal quotation	3
marks and citation omitted), aff’d, 2023-NMSC-025, ¶ 2, 538 P.3d 66.	4
{7} 	“When interpreting procedural rules, we seek to determine the underlying	5
intent of our Supreme Court.” Id. ¶ 7 (internal quotation marks and citation omitted).	6
To determine that intent, “we apply the same canons of construction as applied to	7
statutes.” 	Id. 	“We first look to the language of the rule, and if the rule is	8
unambiguous, we give effect to its language and refrain from further interpretation.”	9
Id. (internal quotation marks and citation omitted). We also examine the context in	10
which the rule was promulgated, including the history of the rule. Id.	11
{8} 	“The application of the plain meaning rule does not, however, end with a	12
formalistic and mechanistic interpretation of [the rule’s] language.” State v. Davis,	13
2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. “Under the plain meaning rule[,	14
rules of criminal procedure] are to be given effect as written without room for	15
construction unless the language is doubtful, ambiguous, or an adherence to the	16
literal use of the words would lead to injustice, absurdity or contradiction, in which	17
case the [rule] is to be construed according to its obvious spirit or reason.” Id.	18
(emphasis added). “Additionally, we read the provisions at issue in the context of	19
the [rule] as a whole, including its purposes and consequences.” State v. Farish,	20

6
2021-NMSC-030, ¶ 11, 499 P.3d 622 (internal quotation marks and citation	1
omitted). Finally, we “must interpret a [rule] so as to avoid rendering the [Supreme	2
Court’s] language superfluous.” Id. (internal quotation marks and citation omitted).	3
{9} 	Rule 6-506(B), also known as “the six-month rule,” provides in relevant part	4
that “[t]he trial of a criminal citation or complaint shall be commenced within one	5
hundred eighty-two (182) days after whichever of the following events occurs latest:	6
(1) the date of arraignment or the filing of a waiver of arraignment of the defendant;	7
. . . [or] (4) in the event of a remand from an appeal or request for extraordinary	8
relief, the date the mandate or order is filed in the magistrate court disposing of the	9
appeal or request for extraordinary relief.”	10
{10} 	In this case, if the time period within which the State was required to bring	11
Defendant to trial began on March 7, 2022, the date of Defendant’s arraignment,	12
then the time limit to bring Defendant to trial expired on September 5, 2022, before	13
the State dismissed Defendant’s case in the magistrate court and refiled in district	14
court, both of which occurred on November 3, 2022. If, however, the time period	15
within which the State was required to bring Defendant to trial restarted on October	16
27, 2022, the date the district court’s order was filed in magistrate court dismissing	17
the State’s appeal in cause number D-820-LR-2022-00010 for lack of jurisdiction,	18
then the State had 182 days, or until April 27, 2023, to bring Defendant to trial. This	19
would mean that on November 3, 2022, the State timely dismissed the charges in	20

7
magistrate court and refiled them in the district court. For the reasons articulated	1
below, we hold that the 182-day deadline within which the state must bring a	2
defendant to trial is not reset upon remand from an appeal filed without any	3
constitutional or statutory basis. Therefore, we conclude that the time limit to bring	4
Defendant to trial expired in the magistrate court before the State dismissed	5
Defendant’s case and refiled in the district court.	6
{11} 	The State argues that our interpretation of Rule 6-506(B)(4) should be	7
confined to the plain language, and that “[a]n appeal is an appeal, regardless of	8
whether it is well-taken, and a remand is a remand, regardless of the basis for the	9
appellate decision.” The State essentially invites us to conclude that, because our	10
Supreme Court did not expressly state in the language of Rule 6-506(B)(4) that there	11
must be a constitutional or statutory basis for an appeal in order for a remand from	12
that appeal to reset the six-month rule, it did not intend such a requirement. We	13
decline the State’s invitation, as it is exactly the type of formalistic and mechanistic	14
reading of the plain language against which our rules of interpretation caution. See	15
Davis, 2003-NMSC-022, ¶ 6 (“The application of the plain meaning rule does not,	16
however, end with a formalistic and mechanistic interpretation of [the rule’s]	17
language.”); see also State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117	18
N.M. 346, 871 P.2d 1352 (“[C]ourts must exercise caution in applying the plain	19
meaning rule. Its beguiling simplicity may mask a host of reasons why a [rule],	20

8
apparently clear and unambiguous on its face, may for one reason or another give	1
rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the [rule’s]	2
meaning.”).	3
{12} 	Moreover, we believe that injustice and absurdity would result from an	4
interpretation of Rule 6-506(B)(4) that permits the State to unilaterally reset the 182-	5
day deadline within which it must bring a defendant to trial in magistrate court by	6
filing an appeal without any constitutional or statutory basis, thereby obtaining a	7
remand for lack of jurisdiction. Such a construction of the rule would render	8
ineffective and superfluous any actual protection afforded a criminal defendant by	9
Rule 6-506(B). See Davis, 2003-NMSC-022, ¶ 6 (“Under the plain meaning rule[,	10
Rules of Criminal Procedure] are to be given effect as written without room for	11
construction unless . . . an adherence to the literal use of the words would lead to	12
injustice[ or] absurdity.”); see also Farish, 2021-NMSC-030, ¶ 11 (stating that we	13
“must 	interpret 	a 	[rule] 	so 	as 	to 	avoid 	rendering 	the 	[Court’s] 	language	14
superfluous”).	15
{13} 	The State seeks to allay any concerns about the unilateral control it would	16
have over the time within which it must bring a defendant to trial by arguing that a	17
speedy trial motion is an adequate remedy in the face of a knowingly improper	18
appeal made to circumvent the six-month rule. In advancing this argument, the State	19
cites State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20, noting that in	20

9
Savedra, our Supreme Court held in the context of dismissal and refiling that any	1
inquiry into whether the state acted in good faith was misguided. See id. ¶ 8.	2
Although a speedy trial motion is, of course, an available remedy for a defendant	3
who believes improper delay has occurred, see Rule 5-604(B) NMRA, for the	4
reasons that follow we discern that our Supreme Court has manifested its intent that	5
Rule 6-506(B) supplement and facilitate the right to a speedy trial, and not that a	6
speedy trial motion entirely replace the protections afforded by Rule 6-506(B).	7
Moreover, although the State is correct that, in the context of dismissal of a	8
magistrate court proceeding and refiling in district court, our Supreme Court has	9
held that any inquiry into whether the State acted in good faith was misguided,	10
Savedra, 2010-NMSC-025, ¶ 8, our holding today does not inquire into whether or	11
not the State acted in good faith. We explain.	12
{14} 	At the time Savedra was penned, Rule 5-604(B) (2009) provided similar time	13
limits for the commencement of trial in district court as the time limits provided by	14
Rule 6-506(B) for the commencement of trial in magistrate court. Savedra, 2010-	15
NMSC-025, ¶ 2. Rule 5-604(B) provided, in pertinent part, that “[t]he trial of a	16
criminal case . . . shall be commenced six (6) months after whichever of the	17
following events occurs latest: (1) the date of arraignment, or waiver of arraignment,	18
in the district court of any defendant.” Savedra, 2010-NMSC-025, ¶ 2 (alteration,	19
internal quotation marks, and citation omitted). In Savedra, our Supreme Court was	20

10
“presented 	with 	the 	recurring 	issue 	of 	how 	[its] 	six-month 	rules 	should 	be	1
administered 	when 	the 	[s]tate 	dismisses 	charges 	in 	magistrate 	court 	and	2
subsequently refiles the same charges in district court.” Id. ¶ 1.	3
{15} 	Our Supreme Court in Savedra affirmed the dismissals of the defendants’	4
cases “because they were not brought to trial within the time period required under	5
the magistrate court six-month rule.” Id. ¶ 5. In doing so, the Court stated that “a	6
literal application of Rule 5-604(B)(1), which would grant the [s]tate a new six-	7
month time period in which to bring the case to trial upon refiling in district court,	8
violates the spirit of the six-month rule.” Savedra, 2010-NMSC-025, ¶ 5 (alterations,	9
internal quotation marks, and citation omitted). The Court also expressed that it	10
“adopted the six-month rules in order to effectuate a criminal defendant’s right to a	11
speedy trial and to assure prompt disposition of criminal cases,” and that “the right	12
protected by the six-month rules belongs to a criminal defendant, not the [s]tate, the	13
courts, or any other party. To allow the [s]tate a new six-month time period in which	14
to bring a case to trial after refiling would permit the [s]tate to cause delay in bringing	15
[a] defendant to trial after [they were] charged in magistrate court.” Id. (internal	16
quotation marks and citation omitted). Thus, the Court held that “when charges are	17
dismissed in the courts of limited jurisdiction, . . . and later refiled in district court,	18
the triggering event for six-month rule purposes is the triggering event that occurred	19

11
in the court of limited jurisdiction, and the six-month time period is not automatically	1
reset upon the refiling.” Id.	2
{16} 	In reaching its holding, the Savedra Court was clearly concerned with a literal	3
application of Rule 5-604(B) because it would violate the spirit and purpose of the	4
six-month rule by permitting the state to cause delay in bringing a defendant to trial	5
by resetting the six-month rule after the defendant was charged in magistrate court.	6
We share these concerns in the context of a literal interpretation of Rule 6-506(B),	7
in the circumstances presented to us in this appeal, and we find our Supreme Court’s	8
reasoning in Savedra instructive as to whether it intended Rule 6-506(B)(4) to grant	9
the state a new six-month time period in which to bring a case to trial on remand	10
from an appeal with no constitutional or statutory basis.	11
{17} 	As 	the 	State 	points 	out, 	our 	Supreme 	Court 	in 	Savedra 	expressed	12
dissatisfaction with the “long line of appellate court opinions [that] have sought to	13
preserve the protections of the six-month rule by requiring the [s]tate to demonstrate	14
that its decision to dismiss and refile was not done in bad faith to circumvent the	15
protections of the six-month rule.” 2010-NMSC-025, ¶ 3. In Savedra, the Court	16
found impermissible the “good faith-bad faith analysis” because it “render[ed] a	17
defendant’s right to be promptly tried as a contingent right, one that may provide	18
protection only if the [s]tate had ‘bad’ reasons for dismissing and refiling.” Id. ¶ 7.	19
Our Supreme Court went on to explain:	20

12
As we have previously stated, the right protected by the six-month rules	1
is a criminal defendant’s right, not that of the [s]tate, the courts, or any	2
other party; it is not a tool to punish the [s]tate for dismissing and	3
refiling cases in bad faith, nor should its diminution be a reward for the	4
[s]tate’s good behavior. Viewed in that light, the cases in which courts	5
have conducted a “good faith-bad faith” analysis regarding the [s]tate’s	6
reasons for dismissing and refiling a case in order to determine if a new	7
six-month time period should be granted are misguided. Instead, any	8
inquiry into the [s]tate’s reasons for dismissing and refiling in district	9
court should be done within the context of any speedy trial challenge	10
the defendant may raise after the case is refiled in district court.	11
Id. ¶ 8. Recognizing the “need to revise [its] six-month rules to incorporate [its]	12
decision,” our Supreme Court further stated,	13
Within the context of criminal proceedings in our courts of limited	14
jurisdiction, our six-month rules continue to serve a useful purpose. But	15
in our district courts, the six-month rule has become an unnecessary and	16
sometimes counterproductive method for protecting a defendant’s right	17
to a speedy trial. Therefore, effective for all cases pending as of the date	18
this [o]pinion is filed, we withdraw the six-month rule provisions set	19
forth in Rule 5-604(B)-(E) [(2009)]. In its place, defendants may rely	20
upon and assert their right to a speedy trial whenever they believe	21
impermissible delay has occurred; whether that delay is the result of a	22
dismissal and refiling or any other cause.	23
Id. ¶ 9 (citation omitted).	24
{18} 	After the filing of Savedra, Rule 5-604(B)(5) now provides:	25
If the district court does not initially schedule a refiled case within the	26
trial deadline that would have been applicable had the case remained in	27
the lower court, or if the court grants a continuance beyond that	28
deadline, the defendant may move that the court consider whether the	29
case should be dismissed for violation of the defendant’s right to speedy	30
trial . . . . This paragraph does not prohibit a defendant from filing a	31
motion to dismiss for violation of the right to a speedy trial even if a	32
trial is scheduled within the trial deadline that would have been	33
applicable had the case remained in the lower court.	34

13
{19} 	Although our Supreme Court rewrote Rule 5-604(B) to comply with its	1
holding in Savedra, we think it significant that the Court did not abolish nor rewrite	2
Rule 6-506(B) following Savedra. We think this makes clear that our Supreme Court	3
intends to retain Rule 6-506(B) and the protections it affords criminal defendants	4
who are first charged in magistrate court. Had the Court intended a speedy trial	5
inquiry to completely replace the protections afforded a criminal defendant by Rule	6
6-506(B), it would have amended Rule 6-506(B) to eliminate the six-month rule in	7
magistrate court, supplanting it with a speedy trial inquiry, as it did with the district	8
court six-month rule.	9
{20} 	“The purpose of [Rule 6-506(B)] is to encourage the orderly and prompt	10
disposition of criminal cases, and to guard against lack of preparedness on the part	11
of the state.” State v. Rayburns, 2008-NMCA-050, ¶ 8, 143 N.M. 803, 182 P.3d 786	12
(internal quotation marks and citation omitted). Furthermore, “[t]he focus of	13
administration of the six-month rule should be on the defendant and [their] right to	14
have a prompt disposition of [their] criminal charges.” Savedra, 2010-NMSC-025,	15
¶ 5.	16
{21} 	Noteworthy for this discussion, our Supreme Court in 2005, seventeen years	17
before the filing of the complaint in this case, established the proper procedure the	18
State must follow for obtaining review of a magistrate court’s suppression order. In	19
Heinsen, our Supreme Court stated,	20

14
We hold that there is no constitutional or statutory basis for an appeal	1
by the [s]tate from a suppression order of a magistrate court. We also	2
hold the practical finality exception to the final judgment rule is not	3
applicable, because the [s]tate may obtain judicial review of such a	4
suppression order by filing a nolle prosequi to dismiss some or all of	5
the charges in the magistrate court after the suppression order is	6
entered and refiling in the district court for a trial de novo.	7
2005-NMSC-035, ¶ 1 (emphasis added); see id. ¶¶ 22-23.	8
{22} 	Consequently, a holding that would reset the 182-day time limit within which	9
the state must bring a defendant to trial in magistrate court following an appeal	10
lacking a constitutional or statutory basis would be inconsistent with the purpose of	11
Rule 6-506(B) and lead to an absurd result—regardless of whether the state	12
negligently chose the incorrect procedure for appeal or whether the state filed a	13
knowingly improper appeal made to circumvent the six-month rule. In either event,	14
the State failed to orderly and promptly bring Defendant’s case to trial.	15
{23} 	In that regard, our holding today does not inquire into the State’s motivations	16
for filing an appeal without a constitutional or statutory basis. To the contrary, our	17
holding applies whenever an appeal is taken without a constitutional or statutory	18
basis, regardless of whether the State negligently chose the incorrect procedure, or	19
whether it knowingly filed an improper appeal for purposes of circumventing the	20
six-month rule. Under either circumstance, the time limit within which the state must	21
bring a defendant to trial under Rule 6-506(B) is not reset. Stated simply, Rule 6-	22
506(B) establishes a right that benefits defendants, and it is their interest that is	23

15
adversely affected when the resolution of their criminal proceedings are wrongly	1
prolonged.	2
{24} 	For the reasons expressed herein, we hold that the 182-day deadline within	3
which the state must bring a defendant to trial is not reset upon remand from an	4
appeal filed without any constitutional or statutory basis. Therefore, we conclude	5
that (1) the time limit within which the State was required to bring Defendant to trial	6
in magistrate court under Rule 6-506(B) expired before the State dismissed and	7
refiled Defendant’s case in the district court; and (2) the district court did not err by	8
granting Defendant’s motion to dismiss.	9
CONCLUSION	10
{25} 	We affirm.	11
{26} 	IT IS SO ORDERED.	12
______________________________	13
GERALD E. BACA, Judge	14
WE CONCUR:	15
_____________________________	16
J. MILES HANISEE, Judge	17
_____________________________	18
KATHERINE A. WRAY, Judge	19