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State v. Gardea7/28/1999
{1} In this felony prosecution in district court for driving while intoxicated (DWI), we examine the effect of a prior nolle prosequi of a misdemeanor DWI arising from the same incident that was filed in metropolitan court, when the nolle prosequi was never endorsed by the metropolitan court Judge, contrary to Rule 7-506(A) NMRA 1999. The district court refused to remand the felony DWI back to metropolitan court for dismissal. On interlocutory appeal, we affirm and remand to the district court for prosecution of the felony indictment.
FACTS
{2} On July 10, 1997, Defendant was charged in metropolitan court with DWI, first offense. On October 3, 1997, the State filed a nolle prosequi in metropolitan court indicating that the case had been filed erroneously as a misdemeanor and would be filed as a felony in district court. The nolle prosequi was not endorsed by the metropolitan court Judge as required by Rule 7-506(A). An indictment was filed on March 9, 1998, charging Defendant with felony DWI, and Defendant was arraigned a week later. On August 3, 1998, Defendant filed a motion in district court for remand to the metropolitan court, so that he could petition the metropolitan court to dismiss the original charge, with prejudice, for violation of the six-month rule. The district court refused to remand, which is the subject of this appeal.
DISCUSSION
{3} Metropolitan court Rule 7-506(A) states that a complaint may be dismissed by the prosecution at any time before trial. It further states that, " he notice shall be presented to the Judge before filing, and he shall endorse thereon an order that the action or count is dismissed." Defendant argues that because the State's nolle prosequi was not endorsed by the metropolitan court, it was ineffective, and therefore the original charge remained pending in metropolitan court for more than six months without a trial contrary to the six-month rule. See Rule 7-506(B). The remedy for violating Rule 7-506(B) is dismissal with prejudice, and thus, Defendant seeks to preclude further prosecution on the felony indictment which relies on the same underlying DWI.
{4} Defendant contends that the sole issue on appeal is whether an unsigned nolle prosequi is effective to dismiss a misdemeanor DWI in metropolitan court, but we believe the issue before us is more complex. Defendant could have moved earlier to dismiss the charge in metropolitan court for violation of Rule 7-506(A), but he did not do so. Instead, Defendant was properly indicted in district court for felony DWI, after the six-month rule had run in metropolitan court but without Defendant having filed to dismiss the charge. We hold that Defendant's failure to file for dismissal in metropolitan court before he was indicted in district court waived any claim to dismissal based upon the State's noncompliance with metropolitan court rules.
{5} It is generally accepted that the prosecutor has wide discretion to dismiss criminal charges. See State ex rel. Naramore v. Hensley, 53 N.M. 308, 310-11, 207 P.2d 529, 530 (1949). We believe it is immaterial whether the dismissal is called a nolle prosequi or an order of dismissal. The State argues that the two are different and that the metropolitan court Rule 7-506(A) does not apply to a nolle prosequi. We are unpersuaded. Nolle prosequi is simply a Latin term meaning that the government does "not . . . wish to prosecute." See Bryan A. Garner, A Dictionary of Modern Legal Usage 591 (2d ed. 1995). Thus, it denotes an abandonment of suit. We recognize that a nolle prosequi is a common-law rule that allows the government absolute power to dismiss criminal charges against an accused without any structure
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