 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Gardea7/28/1999
d judicial oversight or supervision. The procedural rules issued by our Supreme Court now prescribe a new procedure for dismissing criminal charges in courts of limited jurisdiction, and those rules have codified and, in places, modified the common law. See Rule 7-506; see also Rules 6-506, 8-506 NMRA 1999. The effect of both a nolle prosequi and an order of dismissal is to dismiss criminal charges that have been brought against a defendant. The prosecutor has wide discretion to file either, as long as the relevant procedural rules are followed.
{6} That discretion is tempered by the court's ability to prevent the prosecutor from using such a dismissal to circumvent other rules of procedure, such as the six-month rule or the judicial disqualification rule. See State v. Ware, 115 N.M. 339, 341, 850 P.2d 1042, 1044 (Ct. App. 1993). In metropolitan court, the Supreme Court rule underscores the wide latitude of prosecutorial discretion, subject, of course, to the endorsement of the Judge.
{7} Policy reasons favor the endorsement requirement. Endorsing the dismissal order (or nolle prosequi) affords a metropolitan court Judge an opportunity to inquire into the reasons for the dismissal and to remind the prosecutor of matters like the running of the six-month rule that may affect a criminal defendant's due process rights. We believe the endorsement requirement is founded on principles of prudence; it gives the court a means to carry out its responsibility of supervising and controlling how cases move on its docket. See State v. Ericksen, 94 N.M. 128, 131, 607 P.2d 666, 669 (Ct. App. 1980). Some measure of judicial oversight appears particularly appropriate for metropolitan court, in which parties, including the State, are not always represented by legal counsel during the initial stages of the proceeding. We do not believe that the rule usurps the inherent authority and discretion of the prosecutor with regard to charging matters. The rule is not an unconstitutional delegation of authority to the metropolitan court which has little discretion in most cases but to agree to dismissal. "[The Judge] shall endorse thereon an order that the action or count is dismissed." Rule 7-506(A) (emphasis added).
{8} We reaffirm our earlier memorandum opinion in State v. Ortiz, No. 19,116, slip op. at 2-3, (N.M. Ct. App. Mar. 12, 1998), in which we held that Rule 7-506 is not a mere technicality. When the nolle prosequi is filed without the metropolitan court's endorsement, that court can consider the nolle prosequi ineffective and dismiss subsequently under the six-month rule, as it did in Ortiz. Once dismissed, "a criminal charge for the same offense shall not thereafter be filed in any court." Rule 7-506(B).
{9} However, a defendant must file for dismissal to take advantage of the six-month rule; dismissal is not self-executing. See State v. Vigil, 85 N.M. 328, 332, 512 P.2d 88, 92 (Ct. App. 1973). Failing to move for dismissal before the district court, a defendant "may not raise that issue here [on appeal] for the first time." Id. In the case before us, the metropolitan court's six-month rule had already run by the time Defendant was indicted in district court. At any time before that indictment, Defendant could have asked the metropolitan court to dismiss the charge with prejudice for violation of the six-month rule. If Defendant had done so, the metropolitan court could have determined, as it did in Ortiz, that the nolle prosequi was ineffective under Rule 7-506, that the charge against Defendant had been pending (because it was not properly dismissed) for more than six months, and that the charge should be dismissed with prejudice. However, unlike the accused in Ortiz, Defen
Page 1 2 3 4 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|