August 1, 2019- State of New Mexico v. Saleh Bhar, No. A-1-CA-37136

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 	v. 	No. A-1-CA-37136
5 	SALEH BHAR,
6 	Defendant-Appellee.
7 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 	Christina P. Argyres, District Judge
9 	Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Charles J. Gutierrez, Assistant Attorney General
12 	Albuquerque, NM
13 	for Appellant
14 The Law Office of Scott M. Davidson, Ph.D., Esq.
15 	Scott M. Davidson
16 	Albuquerque, NM
17 	for Appellee
18 	MEMORANDUM OPINION
19 	IVES, Judge.
20 	{I} 	The metropolitan court dismissed the State's case against Defendant Saleh
21 	Bhar without prejudice, and the State sought to pursue charges against Defendant in
22 	the 	district 	court. 	The 	district 	court 	concluded 	that 	the 	State' s 	approach 	to
Court of Appeals of New Mexico
Filed 8/1/2019 9:45 AM

1 prosecuting the case was improper for various reasons and dismissed the case with
2 prejudice. The State appeals. We reverse and remand for further proceedings.
3 BACKGROUND
4 	{2} 	On August 2, 2017, the State filed a criminal complaint in metropolitan court
5 charging Defendant with two counts of battery in violation of the Albuquerque, New
6 Mexico, Code Section 12-2-2 (1974). After the metropolitan court granted three
7 continuances at Defendant's request, the State dismissed the two initial charges
8 without prejudice by nolle prosequi on November 7, 2017. In the nolle prosequi, the
9 State expressed an intent to "amend and refile the case to add the charge of [b ]attery
10 	[a]gainst [a h]ousehold [m]ember."
11 	{3} 	On 	November 	9, 	2017, 	the 	State 	refiled 	the 	dismissed 	complaint 	in
12 	metropolitan court, charging Defendant with battery, in violation of NMSA 1978,
13 	§ 30-3-4 (1963), and battery against a household member (BHM), in violation of
14 NMSA 1978, § 30-3-15 (2008). On December 28, 2017, the metropolitan court
15 	dismissed the case without prejudice because the State had improperly added the
16 BHM charge and because Defendant had never been arraigned on the new charges.
17 	{4} 	On January 12 , 2018, the State filed a pleading in district court titled Notice
18 	of Re-Filing of Dismissed Amended Criminal Complaint from Metropolitan Court
19 	for 	De Novo Trial. 	On January 	16 , 2018, the 	State filed a motion to set an
20 arraignment and a status conference. Defense counsel filed an entry of appearance,
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1 a request for discovery, and a speedy trial demand on January 17, 2018. The State
2 served the refiled complaint on defense counsel on January 18 , 2018. The record
3 contains no evidence that the State personally served Defendant with a summons
4 and information, as Rule 5-209(A) NMRA requires, when the case was refiled in
5 district court. On January 19, 2018, the State filed a criminal information charging
6 Defendant with two counts of battery, in violation of Section 30-3-4, and one count
7 ofBHM in violation of Section 30-3-15.
8 	{5} 	Following a status conference, the district court dismissed the case with
9 prejudice. Its order included the following findings and reasoning:
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1. This matter was improperly filed in the [d]istrict [c]ourt as
State's Notice of Re-Filing ofDismissed Amended Criminal Complaint
from Metropolitan Court for De Novo Trial. Because there was a Nolle
Proseequi filed in [the case] and the State then refiled the case in
[m]etropolitan [c]ourt to add [BHM c]harges, the [m]etropolitan [c]ourt
case was a record case. A record case may not be filed in the [d]istrict
[c]ourt for a trial de novo, pursuant to ... Rule 5-827(1) [NMRA].
2. The State failed to provide notice of either the refiled case or
the Information filed in this matter to ... Defendant and failed to bring
him before the [c]ourt for arraignment within ten days.
20 The State appeals.
21 	DISCUSSION
22 	I.
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24 	{6}
Standard of Review.
We review the district court's interpretation of procedural rules de novo. State
25 	v. Stephen F., 2006-NMSC-030, ,I 7, 140 N.M. 24, 139 P.3d 184. "The text of a
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1 statute or rule is the primary, essential source of its meaning." NMSA 1978, § 12-
2 2A-19 (1997). We first examine "the plain language of the [rule], giving the words
3 their ordinary meaning," unless there is an indication that a different meaning was
4 intended. N.M Indus. Energy Consumers v. N.M Pub. Regulation Comm 'n, 2007-
5 NMSC-053, ,r 20, 142 N.M. 533, 168 P.3d 105. "[W]hen a [rule] contains language
6 [that] is clear and unambiguous, we must give effect to that language and refrain
7 from further ... interpretation." State v. Benally, 2016-NMSC-010, ,r 10, 368 P.3d
8 403 (internal quotation marks and citation omitted).
9 	II.
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11 	{7}
The District Court Erred by Concluding That Rule 5-827(J) Required
Dismissal With Prejudice
The State argues that the district court erred by dismissing the case with
12 prejudice based on Rule 5-827(1) NMRA and that the district court should have
13 	allowed the State to proceed with refiled charges pursuant to Rule 5-604 NMRA.
14 	We agree.
15 	{8} 	The district court ruled that Rule 5-827(1) barred the State from filing for trial
16 de novo in district court. Rule 5-827 governs appeals from metropolitan courts.
17 	Subsection A states, in pertinent part, that "[a] party who is aggrieved by the
18 judgment or final order in a criminal action may appeal, as permitted by law, to the
19 	district 	court 	of the 	county 	within 	which the 	metropolitan 	court 	is 	located."
20 	Subsections (B), (C), and (D) describe the process for initiating an appeal, which
21 	involves filing and serving a notice of appeal. Subsection (J), on which the district
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1 court relied, states, "[ e]xcept as otherwise provided by law for appeals involving
2 driving while under the influence and domestic violence offenses, trials upon appeals
3 from the metropolitan court to the district court shall be de novo." Nothing in
4 subsection (J), any other subsection of Rule 5-827, or any other authority of which
5 we are aware makes an appeal the exclusive mechanism for pursuing a prosecution
6 after a dismissal 	without prejudice 	in 	metropolitan and magistrate courts, and
7 nothing about the 	State's refiled 	pleading 	indicates 	it 	intended to 	appeal 	the
8 metropolitan court dismissal.
9 	{9} 	The rules of criminal procedure provide for another mechanism when a case
10 	is dismissed without prejudice: refiling in the district court. Rule 5-604(A) governs
11 	"cases of concurrent trial jurisdiction originally filed in the magistrate, metropolitan,
12 or municipal 	court that are 	subsequently 	dismissed and refiled 	in the 	district
13 	court[.]" 1 Rather than appeal the district court ruling, the State refiled its case against
14 	Defendant under Rule 5-604(A), which authorized refiling in district court because
15 	that court and the metropolitan court had concurrent trial jurisdiction over the
16 	misdemeanor charges against Defendant. See NMSA 1978, § 34-8A-3(A) (2001)
17 (stating that metropolitan court has jurisdiction as provided by law for magistrate
18 	courts); State v. Southworth, 2002-NMCA-091 , 1 54, 132 N.M. 615 , 52 P.3d 987
1 The 	law 	places 	various 	limits 	on 	refiling, 	including 	the 	speedy 	trial
provisions in Rule 5-604(B). No speedy trial issue is before us.
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1 ("[T]he 	district 	court 	and 	the 	magistrate 	court 	possess 	original, 	concurrent
2 jurisdiction over misdemeanor cases, and the prosecutor has discretion to choose the
3 court in which to bring a misdemeanor criminal action."). Beyond the requirement
4 	of concurrent jurisdiction, Rule 5-604 places no limitation on the types of cases that
5 may be refiled in district court. It does not exclude domestic violence cases or other
6 cases that, if appealed, would be reviewed on the record, rather than de novo, under
7 Rule 5-827(1).
8 	{IO} 	We conclude that the State had the authority under Rule 5-604 to refile this
9 case in the district court and that Rule 5-827, which governs appeals, did not prohibit
10 	refiling.
11 	III. 	Lack of Personal Service and Untimely Arraignment
12 	{It} 	The failure to personally serve Defendant, which he contends deprived him of
13 	a timely arraignment, does not justify dismissal with prejudice on the record before
14 	us. Failure to timely arraign is not a sufficient basis for dismissal "in the absence of
15 	a showing of prejudice." State v. Coburn, 1995-NMCA-063, ,I 7, 120 N.M. 214,900
16 	P.2d 963, superseded by rule on other grounds, Rule 5-604. Because the district
17 court did not find that Defendant suffered prejudice, the record does not support
18 	affirmance.
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1 CONCLUSION
2 	{12} 	We reverse and remand for further proceedings consistent with this opinion. 2
3 	{13} 	IT IS SO ORDERED.
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6 WE CONCUR:
2 We decline the State's request to remand with instructions to hold a trial.
Our 	opinion 	does 	not 	preclude 	the 	district 	court 	from 	determining 	whether
Defendant suffered prejudice as a result of an untimely arraignment. Nor does it
preclude the district court from considering speedy trial motions or other motions.
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