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State v. Gardea7/28/1999
dant failed to preserve his remedy.
{10} Rather then move to dismiss the misdemeanor charge in metropolitan court, Defendant waited, perhaps hoping that the State would not indict him on the more serious charge of felony DWI. That was a tactical choice. Once Defendant was indicted on a charge beyond the jurisdiction of metropolitan court and that indictment was filed in district court, exclusive jurisdiction vested in the district court with respect to the felony. At that point, any charges remaining in metropolitan court, even those that had been susceptible to a motion to dismiss for violation of the six-month rule, were superseded by the indictment. We reach this Conclusion for two reasons.
{11} First, it is universally held that filing an amended criminal information constitutes an abandonment of the initial information. See Armstrong v. United States, 16 F.2d 62, 63-64 (9th Cir. 1926); State v. Kinard, 585 P.2d 836, 838 (Wash. Ct. App. 1978); see also State v. Benally, 99 N.M. 415, 417, 658 P.2d 1142, 1144 (Ct. App. 1983) ("`An "amended" information vitiates the original information as fully as though it had been formally dismissed by order of the court. It constitutes the filing of a new instrument which supersedes its predecessor.'") (quoting Salazar v. State, 85 N.M. 372, 373, 512 P.2d 700, 701 (Ct. App. 1973) (citations omitted)). Here, the arresting officer filed the criminal complaint in metropolitan court charging misdemeanor DWI. The officer may not have known at the time that Defendant had prior DWI convictions that would elevate the present charge to a felony. After investigation, the district attorney discovered three prior convictions for DWI, and the charge was amended to a felony DWI, leading to Defendant's indictment in district court. We view the felony indictment in the same light as an amended information, in that it initiated different charges against Defendant that superseded whatever may have been pending in metropolitan court. Thus, the complaint in metropolitan court is deemed abandoned by the State as a matter of law.
{12} Second, out-of-state authority holds that an intervening indictment arising from the same activity supersedes a prior complaint filed in the same case. See State v. Bojorquez, 535 P.2d 6, 10 (Ariz. 1975) (en banc); State v. Vinson, 443 P.2d 700, 701 (Ariz. Ct. App. 1968). The intervening indictment is similar to an amended information. In New Mexico, the State may proceed by indictment in district court even if the prosecution was initiated originally by a complaint in magistrate court. See State v. Ergenbright, 84 N.M. 662, 664, 506 P.2d 1209, 1211 (1973). The rules do not require a dismissal in magistrate court prior to an indictment in district court. See Rule 7-202(E) NMRA 1999. The indictment supersedes the complaint by operation of law.
CONCLUSION
{13} We hold that metropolitan court Rule 7-506(A) requires a Judge's endorsement on the State's notice of dismissal or nolle prosequi. Failure to secure the endorsement renders the dismissal ineffective and subject to subsequent dismissal for violation of the six-month rule. However, Defendant waived any right he may have had to a dismissal in metropolitan court. Moreover, once a defendant is indicted in district court, that indictment supersedes metropolitan court charges that have not been properly dismissed. Accordingly, we affirm the district court's refusal to remand this case to the metropolitan court, and we remand to the district court for further proceedings.
{14} IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
WE CONCUR:
LYNN PICKARD, Chief Judge
A. JOSEPH ALARID, Judge
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