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State v. Gage12/27/2001
s, provide such an exceptional circumstance. Defendant was speculating, at best, as to whether the Bonilla policy or any modified remnant of that policy was still in existence two and one-half years after the defendant in Bonilla was sentenced. Defendant's avenue for reconsideration of his sentence was only by way of motion in the district court, pursuant to Rule 5-801, after this Court's mandate to that court.
Defendant ignores New Mexico law. He attempts to support his position with three out-of-state cases, each of which is entirely consistent with New Mexico law and our holding in this appeal. Two of the cases simply say a lower court can more broadly act on remand from an appellate court when matters are left open by the appellate court and the lower court action is not inconsistent with the appellate court decision. See Haines Pipeline Constr., Inc. v. Mont. Power Co., 876 P.2d 632, 637 (Mont. 1994); City of Detroit v. Gen. Motors Corp., 592 N.W.2d 732, 736 (Mich. Ct. App. 1998). The third case, Davis v. J.C. Nichols Co., 761 S.W.2d 735 (Mo. Ct. App. 1988), strongly supports our holding here. The court in Davis did not vary from the hard-and-fast rule that the law of the case established on appeal binds the district court on remand under the appellate court mandate. Id. at 739-40. The aspect of Davis on which Defendant relies was a separate issue "not within the operation of the rule that the appellate decision is the law of the case in subsequent proceedings in the same cause." Id. at 741. The court in Davis approved the district court's dependency, in a permitted summary judgment proceeding on remand, on "new and controlling evidence not before the court in the first adjudication by directed verdict or Davis on the appeal." Id.
In the present case, the magistrate court's jurisdiction and authority on remand was limited to that of carrying out the district court sentence, nothing more. The magistrate court was not given latitude to hold a re-sentencing hearing and take "new and controlling evidence." Rather, the only circumstance relating to the sentencing issue was that there may have been some doubt as to the legality of the district court sentence due to the later-issued Bonilla decision. Under the circumstances, Defendant should have filed a motion in district court to change its sentence.
Based on the foregoing, we determine that the court orders from which Defendant appeals are appropriate and valid orders. Nevertheless, we note Defendant is not deprived of an opportunity to have an evidentiary hearing in the district court to determine if Judge Clingman's March 31, 2000, sentence was based on a policy meant to penalize Defendant for exercising his constitutional right to trial by jury. Defendant has that opportunity through a habeas corpus proceeding under Rule 5-802 NMRA 2001.
CONCLUSION
We affirm. In accordance with Bonilla, 2000-NMSC-037, 15, and to avoid any appearance of impropriety, Defendant's habeas proceeding, should he file one, should be heard by a judge other than Judge Clingman.
IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
LYNN PICKARD, Judge
CYNTHIA A. FRY, Judge
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