August 09, 2010 – State of New Mexico v. Jose Alfredo Ordunez, No. 28,297

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _August 9, 2010

NO. 28,297

STATE OF NEW MEXICO,
Plaintiff-A ppellant,
V.
JOSE ALFREDO ORDUNEZ,
Defendant- Appellee.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Stephen Bridgforth, District Judge
Gary K. King, Attomey General
Ann M. Harvey, Assistant Attomey General
Santa Fe, NM
for Appellant
Hugh W. Dangler, Chief Public Defender
Carlos Ruiz dela Torre, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION
WECHSLER, Judge.
{1} 	The State appeals from the district court’s dismissal of probation revocation
proceedings against Defendant in his driving while under the influence of intoxicating
liquor or drugs (DWI) case for lack of jurisdiction. The district court concluded that
it had no jurisdiction to address a statutory provision that denies credit to DWI
offenders for time served on probation if they violate probation and the court does not
revoke probation before the probationary period is concluded. 	We agree with the
district court’s interpretation of the statutes and hold that revocation of a defendant’s
probation and resultant forfeiture of probation credit must be ordered by the district
court before the original period of probation expires. We therefore affirm.
BACKGROUND
{2} 	Following a guilty plea, Defendant was convicted for aggravated driving while
under the influence of intoxicating liquor (refusal) and driving while license
suspended or revoked. Defendant committed the crimes on August 30, 2004 and was
a repeat DWI offender with three prior convictions. The judge sentenced Defendant
to a total term of two years and 181 days, with six months and seven days to be served
in the detention center and the remainder of the sentence (one year and six months and
174 days) suspended subject to supervised probation. The order of probation provided
that Defendant is “under probation supervision until 10/19/2007.” On September 7,

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2007, the State filed a petition to revoke probation based on Defendant’s August 18,
2007 arrest for driving while intoxicated and consumption of alcohol. The district
court initially scheduled the probation revocation hearing for October 25, 2007 and
then reset the hearing for December 20, 2007. Although the State filed its September
7, 2007 petition to revoke probation during the time Defendant was still subject to
supervised probation, the hearing on the State’s petition was not scheduled until after
the supervised probation period was set to expire on October 19, 2007. Prior to the
scheduled probation revocation hearing, the State filed an amended petition to revoke
probation to include allegations that Defendant also violated probation on November
14, 2007, by failing breathalyzer tests administered by his probation officer. At the
probation 	revocation 	hearing, 	Defendant 	successfully 	moved 	to 	dismiss 	the
proceedings, arguing that the district court lost jurisdiction because Defendant’s
original period of probation had already expired. The district court granted the motion
to dismiss, and this appeal followed.
APPLICABLE LAW
{3} 	Before considering whether the district court erred in dismissing for lack of
jurisdiction, we address the parties’ assumption that the applicable law is the 2004
version of NMSA 1978, Section 66-8-102 (2004) (amended 2008). 	The parties
indicate that the 2004 version applies because the underlying crimes upon which the

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probation was based occurred on August 30, 2004. See generally State v. Allen, 82
N.M. 373, 374, 482 P.2d 237, 238 (1971) (providing that the law in effect at the time
of commission of the offense is controlling). However, after Defendant’s case was
finalized and while he was serving probation, Section 66-8-102 was amended several
times before Defendant allegedly violated his probation on August 17, 2007. Even
though Defendant was still serving probation, his case was not considered pending for
purposes of our state constitutional provision that prohibits the Legislature from
changing the rights or remedies of the parties to a pending case. See N.M. Const. art.
IV, § 34 (providing that “[n]o act of the [L]egislature shall affect the right or remedy
of either party, or change the rules of evidence or procedure, in any pending case”);
State v. Druktenis, 2004-NMCA-032, ¶¶ 39-43, 135 N.M. 223, 86 P.3d 1050 (noting
that a change in the law that takes effect while a defendant is serving probation is the
applicable law for purposes of a subsequent probation revocation proceeding because
the case was not pending for purposes of Article IV, Section 34 of the New Mexico
Constitution). Accordingly, because Defendant allegedly violated his probation on
August 17, 2007, the 2007 version of Section 66-8-102 was the applicable law for
purposes of Defendant’s probation revocation proceeding.
{4} 	Although the parties and the district court relied on the 2004 version of Section
66-8-102, we nevertheless take it upon our own initiative to apply the 2007 version

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of the statute because the sentencing authority of the court is at issue. 	See State v.
Hunter, 2001-NMCA-078, ¶ 8, 131 N.M. 76, 33 P.3d 296 (noting that the district
court’s sentencing authority is a jurisdictional matter that can be considered for the
first time on appeal); State v. McNeece, 82 N.M. 345, 345-46, 481 P.2d 707, 707-08
(Ct. App. 1971) (noting that, although the parties did “not question which statute is
the applicable one,” the use of an inapplicable statute calls into question the
jurisdiction of the sentencing court and may be raised sua sponte by the appellate
court because the “[l]ack of jurisdiction at any stage of a proceeding is a controlling
consideration to be resolved before going further” (alteration in original) (internal
quotation marks and citation omitted)); see also Smith v. City of Santa Fe, 2007-
NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 (“[I]t is incumbent upon the appellate
court to raise jurisdiction questions sua sponte when the Court notices them.”). While
the relevant provisions of the 2004 and 2007 statutes are similar in many respects,
there is one significant distinction under the circumstances of this case. In particular,
Subsection (E) only applied to first-time DWI offenders. We note that, because of this
distinction, the State could not have relied on that statute to deprive Defendant of
credit for time served on probation because Defendant was a repeat DWI offender.
Nevertheless, Subsection (S) of the 2007 statute contains the same provisions included
in Subsection (E) of the 2004 version, but Subsection (S) of the 2007 statute is

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applicable 	to 	all 	levels 	of 	DWI 	offenders 	who 	violate 	probation—including
Defendant.
INTERPRETATION OF SECTION 66-8-102(S)
{5} 	Having established the applicable statute, we next consider its effect de novo.
See French-Hesch v. French-Williams, 2010-NMCA-008, ¶ 4, 147 N.M. 620, 227
P.3d 110 (filed 2009) (“The interpretation of statutes is a question of law that we
review de novo.”). We read statutes harmoniously with each other whenever possible,
State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022, and we interpret
statutes “to facilitate and promote the [L]egislature’s accomplishment of its purpose.”
State v. Rivera, 2004-NMSC-001, ¶ 12, 134 N.M. 768, 82 P.3d 939 (filed 2003)
(internal quotation marks and citation omitted). We do not construe statutes to result
in absurdity or to defeat legislative intent. State v. Herrera, 86 N.M. 224, 226, 522
P.2d 76, 78 (1974). Instead, “[w]e seek to give meaning to all parts of the statute,
such that no portion is rendered surplusage or meaningless.” 	Int’l Ass’n of
Firefighters v. City of Carlsbad, 2009-NMCA-097, ¶ 11, 147 N.M. 6, 216 P.3d 256,
cert. denied, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360.
{6} 	Section 66-8-102(S) provides as follows:
With respect to this section and notwithstanding any provision of
law to the contrary, if an offender’s sentence was suspended or deferred
in whole or in part and the offender violates any condition of probation,

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the court may impose any sentence that the court could have originally
imposed and credit shall not be given for time served by the offender on
probation.
For ease of reference, we will refer to the foregoing provision as the no-credit
provision. The Legislature’s intent in Section 66-8-102(S) is apparent from the plain
language—if a defendant violates the terms of probation, the court may impose any
sentence that could have originally been imposed with no credit given for time served.
See id.; see also Albuquerque Bernalillo County Water Util. Auth. v. N.M. Pub.
Regulation Comm’n, 2010-NMSC-013, ¶ 52, 148 N.M. 21, 229 P.3d 494 (“In
discerning the Legislature’s intent, we are aided by classic canons of statutory
construction, and [w]e look first to the plain language of the statute, giving the words
their ordinary meaning, unless the Legislature indicates a different one was intended.”
(alteration in original) (internal quotation marks and citation omitted)). 	The
Legislature’s inclusion of “notwithstanding any provision of law to the contrary” in
Section 66-8-102(S) indicates that the Legislature intended this bar to be applied,
notwithstanding any provision of law that might otherwise be read to allow a
defendant credit for time served. In other words, if a defendant attempted to argue
that credit should be given, the “notwithstanding” language makes clear that the no-
credit provision would prevail. In this case, Defendant was accused of violating his
probation; therefore, the State argued for imposing a new sentence and maintained

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that, pursuant to Section 66-8-102, Defendant should not receive credit for time served
on probation.
{7} 	Generally, if a probation violation is established when there is a suspended
sentence, “the court may continue the original probation, revoke the probation and
either order a new probation . . . or require the probationer to serve the balance of the
sentence imposed or any lesser sentence.” NMSA 1978, § 31-21-15(B) (1989). In
determining the balance of the sentence, the defendant is entitled to credit for any time
served on probation. See State v. Baca, 2005-NMCA-001, ¶ 21, 136 N.M. 667, 104
P.3d 533 (filed 2004) (recognizing that “[a] probationer whose sentence has been
suspended is entitled to credit against his or her sentence for the time served on
probation”).
{8} 	However, as noted above, even though the State filed its petition to revoke
probation before Defendant’s period of probation was set to expire, a hearing on the
petition was not held until after the original period of probation had expired. NMSA
1978, Section 31-20-8 (1977) states that, when a period of suspension expires without
revocation of a defendant’s probation, “the defendant is relieved of any obligations
imposed on him.” The Legislature’s intent in Section 31-20-8 is also apparent from
the statute’s plain language—if a defendant satisfies his probation period without
revocation, he is relieved of further obligations. See Albuquerque Bernalillo County

8
Water Util. Auth., 2010-NMSC-013, ¶ 52 (stating that we look to the plain language
of a statute when discerning legislative intent, giving words their ordinary meaning).
In other words, the district court must hold a hearing before the expiration of the
defendant’s probation period, after which point it loses jurisdiction to do so. See State
v. Katrina G., 2007-NMCA-048, ¶ 17, 141 N.M. 501, 157 P.3d 66 (“Section 31-20-8
clearly evinces the [L]egislature’s intent to require a hearing before the expiration of
the probation period.”). Had the Legislature intended to extend the district court’s
jurisdiction beyond a defendant’s probation period, it certainly could have done so.
Cf. id. (stating that, if the Legislature had wanted to draft a children’s code statute
with the same expiration of jurisdiction as seen in Section 31-20-8, it could have done
so).
{9} 	The State relies on the no-credit provision to argue that the ordinary
jurisdictional limit imposed by Section 31-20-8 does not apply. The State emphasizes
that the no-credit provision should be applied “notwithstanding any provision of law
to the contrary.” 	See 	§ 66-8-102(S). 	The dissent similarly asserts that the
“notwithstanding any provision of law to the contrary” language indicates legislative
intent to except DWI probation violators from the district court’s basic jurisdictional
prerequisite in Section 31-20-8. Dissent Op. ¶¶ 21-22. We are not persuaded that the
Legislature intended the no-credit provision and its broad application to add to the

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jurisdiction of the district court.
{10} 	We have previously interpreted Section 31-20-8 to mean that the district court
loses jurisdiction to revoke probation once the probation period ends, even in cases
in which the petition to revoke probation was filed before the probation period ends.
See State v. Lara, 2000-NMCA-073, ¶¶ 3, 6-9, 129 N.M. 391, 9 P.3d 74 (stating that
the statute is clear that the district court lacks jurisdiction to revoke probation after the
period of revocation has expired, even though the motion for unsatisfactory discharge
was filed before the expiration of the defendant’s probationary term); see also Katrina
G., 2007-NMCA-048, ¶ 15 (reiterating that Section 31-20-8 mandates that, when the
period of suspension expires without revocation, “the defendant shall be entitled to a
certificate from the court so reciting such facts” and stating that “Section 31-20-8 sets
forth an explicit deadline—the expiration of the period of suspension—by which the
district court must revoke the suspension order” (internal quotation marks and citation
omitted)). When we read Section 31-20-8 and Section 66-8-102(S) harmoniously, and
in light of our case law, the sentencing statute, Section 66-8-102(S), does not bear on
the jurisdictional statute, Section 31-20-8. Rather, the opposite is true—as long as the
district court has jurisdiction to proceed with a probation revocation proceeding, it
shall apply the no-credit provision when applicable, notwithstanding any law to the
contrary.

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{11} 	Although we acknowledge the dissent’s concern that, when a probation
violation occurs near the end of a probation period, it might be more difficult to
impose the no-credit provision in Section 66-8-102(S), see Dissent Op. ¶ 24, it is not
for the courts to override the policy of the Legislature. See Lara, 2000-NMCA-073,
¶¶ 3, 6-9 (stating that the district court loses jurisdiction once the probation period has
expired); see also State ex rel. Coll v. Johnson, 1999-NMSC-036, ¶ 24, 128 N.M. 154,
990 P.2d 1277 (stating that it is not within the province of our Supreme Court to
“question the wisdom, policy, or justness of legislation enacted by our Legislature”
(internal quotation marks and citation omitted)). To read the statutes in the manner
that the State and the dissent advocate—allowing the district court to apply the no-
credit provision after Defendant’s probation period had expired—would not be a
harmonious reading of the statutes and it would effectively render the Legislature’s
statement in Section 31-20-8, concerning the district court’s jurisdiction, meaningless.
We will not read the no-credit provision in this manner. 	See Int’l Ass’n of
Firefighters, 2009-NMCA-097, ¶ 11 (stating that “[w]e seek to give meaning to all
parts of the statute, such that no portion is rendered surplusage or meaningless”).
{12} 	We agree with Defendant and the district court that, even if the no-credit
provision could be used to impose any sentence that could have been originally
imposed and to deprive him of credit for time served on probation, it was too late to

11
do so because his original period of probation had already expired. The district court
did not err in determining that it had no jurisdiction.
{13} 	We lastly respond to the dissent’s argument that Section 31-21-15(C), a statute
tolling the probation period while the probationer is a fugitive from justice, gives
guidance regarding the Legislature’s intent to except DWI probationers from the
jurisdictional limit of Section 31-20-8. Dissent Op. ¶ 23. We agree with the dissent
that, in Section 31-21-15(C), “the Legislature intended to ensure that probationers
could not defeat the district court’s authority to revoke probation by absconding from
the jurisdiction.” Dissent Op. ¶ 23; State v. Apache, 104 N.M. 290, 291, 720 P.2d
709, 710 (Ct. App. 1986). However, we disagree that the Legislature’s intent to toll
the probation period with regard to fugitives extends to DWI probation violators who
are not fugitives.
{14} 	Section 31-21-15(C) states,
[i]f it is found that a warrant for the return of a probationer cannot
be served, the probationer is a fugitive from justice. After hearing upon
return, if it appears that he has violated the provisions of his release, the
court shall determine whether the time from the date of violation to the
date of his arrest, or any part of it, shall be counted as time served on
probation.
As we stated in Apache, Section 31-21-15(C) tolls the probation period while a
probationer has absconded from the jurisdiction so that the probationer cannot defeat
the district court’s jurisdiction merely by remaining a fugitive from justice until the

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probation period has run. Apache, 104 N.M. at 291, 720 P.2d at 710. In other words,
the district court retains jurisdiction over a probationer who has voluntarily become
a fugitive based upon the express language in Section 31-21-15(C). Section 66-8-
102(S) does not react to a defendant’s choice to abscond from justice, but, instead,
prohibits a court from granting credit for time served to DWI offenders, even if they
would otherwise be granted credit for time served. 	The circumstances are not
analogous.
{15} 	In addition, we do not believe, as stated above, that the Legislature intended for
the district court to first decide whether a DWI defendant is entitled to credit served,
pursuant to Section 66-8-102(S), before it decides whether it has jurisdiction at all,
because such an interpretation would render the jurisdictional limitation of Section 31-
20-8 meaningless and would not be a harmonious reading of the statutes. 	See Int’l
Ass’n of Firefighters, 2009-NMCA-097, ¶ 11 (seeking to give meaning to all parts of
the statute); State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022
(reading statutes harmoniously with each other whenever possible). And, again, the
Legislature could have expressly tolled the probation period in Section 66-8-102(S),
as it did with Section 31-21-15(C), had it so desired. 	See City of Roswell v. Smith,
2006-NMCA-040, ¶ 12, 139 N.M. 381, 133 P.3d 271 (“[T]he [L]egislature could
easily have included additional language in a statute had it desired to do so.” (internal

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quotation marks and citation omitted)).
CONCLUSION
{16} 	For the reasons stated in this opinion, we affirm the district court’s order of
dismissal.
{17} 	IT IS SO ORDERED.
______________________________
JAMES J. WECHSLER, Judge
I CONCUR:
________________________________
RODERICK T. KENNEDY, Judge
LINDA M. VANZI, Judge (dissenting)
VANZI, Judge (dissenting).

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{18} 	I do not agree with the majority that the district court lacked jurisdiction in this
case to decide whether to revoke Defendant’s probation and order the forfeiture of
probation credit. I would reverse the district court’s order of dismissal and remand
for further proceedings on the State’s amended petition to revoke probation.
{19} 	As an initial matter, I do not take issue with the majority’s application of the
2007 version of Section 66-8-102, as I believe this was the law at the time Defendant
allegedly violated his probation. Majority Op. ¶ 4. I also do not disagree with the
general premise that within the context of an ordinary probation revocation
proceeding, our case law provides that the district court lacks jurisdiction to revoke
probation after the probation period ends, even if the petition to revoke probation was
filed before the probation period ends. 	See § 31-20-8 (stating that “[w]henever the
period of suspension expires without revocation of the order, the defendant is relieved
of any obligations imposed on him”); Lara, 2000-NMCA-073, ¶¶ 6-8; Majority Op.
¶ 8.
{20} 	Applying Section 31-20-8 to this case, the majority holds that because the
original term of probation had expired by the time of the probation revocation hearing,
the district court lost jurisdiction over Defendant. 	For the reasons that follow,
however, I would conclude that the ordinary jurisdictional limit imposed by Section
31-20-8 does not apply in DWI cases of this nature.

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{21} 	The jurisdictional limitation of Section 31-20-8 is based on the presumption that
a probationer is ordinarily entitled to credit for time served on probation even if
probation is subsequently revoked. The no-credit provision in Section 66-8-102(S),
however, is to be applied “notwithstanding any provision of law to the contrary,” and
it prohibits giving credit for time served on probation to DWI offenders who violate
their probation. Section 66-8-102(S). Given this clear language, it appears that the
Legislature intended that our district courts first determine whether or not a probation
violator 	is 	entitled 	to 	credit 	for 	time 	served 	on 	probation. 	See 	Smith,
2004-NMSC-032, ¶ 10 (“Whenever possible, we must read different [statutes] as
harmonious instead of as contradicting one another.” (Internal quotation marks and
citation omitted)). After making that threshold determination, the district court can
then decide whether it still has authority under Section 31-20-8 to revoke probation.
{22} 	In recognizing the persistent problem of repeat DWI offenders, the Legislature
has plainly chosen to treat DWI probation violators differently than others who violate
their conditions of probation. 	Specifically, by enacting Section 66-8-102(S), the
Legislature has determined that DWI offenders who violate probation will be deprived
of probation credit “notwithstanding any provision of law to the contrary.” Section
66-8-102(S). I believe it would frustrate the Legislature’s intent if a DWI offender
who violates probation effectively receives credit for time served on probation for

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purposes of determining whether the jurisdictional bar of Section 31-20-8 applies. See
Rivera, 2004-NMSC-001, ¶ 12 (recognizing that statutes must be interpreted “to
facilitate and promote the [L]egislature’s accomplishment of its purpose” (internal
quotation marks and citation omitted)). I conclude that there should be no expiration
of a DWI probationary sentence for purposes of triggering the jurisdictional limitation
of Section 31-20-8 until the district court has first had the opportunity to decide
whether a defendant is entitled to credit for time served on probation.
{23} 	In reaching the conclusion that there is no requirement that the revocation
hearing be held before the original sentence expires, we can find guidance from those
cases in which a probationer is denied credit while a fugitive from justice. See § 31-
21-15(C) (providing that the court may determine whether a probationer was a
fugitive from justice and deny probation credit on that basis); see also State v.
Kenneman, 98 N.M. 794, 798, 653 P.2d 170, 174 (Ct. App. 1982) (acknowledging that
“all time served on probation shall be credited unless the defendant is a fugitive”).
We have previously recognized that the Legislature intended to ensure that
probationers could not defeat the district court’s authority to revoke probation by
absconding from the jurisdiction, and have held that in those cases, the probationary
period is tolled while the probationer is a fugitive from justice. See Apache, 104 N.M.
at 291, 720 P.2d at 710 (tolling the probationary period while the probationer is a

17
fugitive from justice). Thus, even if a fugitive is not brought before the court before
the expiration of the original term of probation, the court may nevertheless deny the
fugitive credit for that period of time that the probationer was a fugitive from justice.
Id. at 292, 720 P.2d at 711.
{24} 	Similarly, by enacting the no-credit provision that denies a DWI offender
probation credit upon a probation violation, the Legislature has effectively precluded
a DWI offender from avoiding the consequences of a probation violation if the
revocation hearing is not held before the original sentence expires since expiration of
the sentence depends on credit for time served on probation. To conclude otherwise
would frustrate legislative intent and lead to absurd results. See Herrera, 86 N.M. at
226, 522 P.2d at 78 (“We will not construe statutes to achieve an absurd result or to
defeat the intended object of the [L]egislature.”). For example, if a DWI probationer
violates probation near the end of the probationary period, it would be nearly
impossible to effectuate the Legislature’s intent to deprive that offender of credit for
time served on probation because a hearing most likely could not be set before
expiration of the original sentence. 	In contrast, a DWI offender who violates
probation earlier in the probationary term would be more likely to have probation
revoked and probation credit forfeited before the original sentence expires. Given
these two very possible scenarios, I respectfully disagree with the majority’s decision

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and can find no reason why the Legislature would have intended such disparate
results.
{25} 	Accordingly, to give effect to legislative intent, I believe that the no-credit
provision should be applied in a manner similar to the fugitive from justice provision.
That is, when a DWI offender is accused of violating probation, the probationary
period is tolled until the district court can hold a hearing to determine whether the
probationer indeed violated probation and has thereby forfeited credit for time
previously served on probation. 	That said, any petition to revoke probation
nonetheless must be filed prior to expiration of the period of the probation under the
original sentence to avoid the jurisdictional bar of Section 31-20-8 and to assure the
defendant of some degree finality. 	Applied to the circumstances of this case, I
conclude that the district court did not lose jurisdiction to consider the State’s petition
to revoke probation because the court first had to determine whether or not Defendant
violated probation and thereby forfeited any credit for time served on probation. I
would reverse the district court’s order of dismissal, which was based on the mistaken
belief that the court no longer retained jurisdiction over Defendant for purposes of
revoking his probation. I respectfully dissent.
__________________________________

LINDA M. VANZI, Judge
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