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State v. Guzman6/2/2004
Defendant Bertha Montoya Guzman appeals from her conviction of vehicular homicide, accidents involving death or personal injuries, tampering with evidence, and aggravated driving while under the influence of intoxicating liquors. She argues on appeal that the district court erred in denying her motion to dismiss for the State's failure to comply with Rule 5-604 NMRA 2004 and that the evidence was insufficient to support her convictions. We affirm.
Procedural History
The State commenced this prosecution by criminal information. Defendant waived arraignment and entered a plea of not guilty on August 9, 2000, establishing the latest date to commence trial under Rule 5-604(B)(1) as February 9, 2001. Trial was set for January 8, 2001 before Judge Neil P. Mertz, the original judge assigned to this case. On January 2, the State filed a stipulated joint motion for a continuance. The motion stated that the State had failed to provide Defendant with all discovery and witness interviews and that the district attorney's office was not prepared for trial because of a change of administration. Defendant stipulated to the continuance. On January 5, Judge Richard A. Parsons, who was assigned to the case as judge pro tempore after the death of Judge Mertz, granted the motion for continuance without a hearing. On January 19, the court sent notice to counsel setting trial for April 30 and further stating "Counsel to seek extension of time, if necessary."
On February 27, eighteen days after the date for commencement of trial under Rule 5-604, the court entered a nunc pro tunc order opposed by Defendant, stating:
This matter coming on for consideration by the Court upon Petition of the State of New Mexico, by and through Clint Wellborn, Seventh Judicial District Attorney, for an extension of time pursuant to Rule 5-604 NMRA of the District Court Rules, and the Court having considered said petition and being sufficiently advised, The Honorable Richard A. Parsons (Pro Tempore), District Court Judge and trial judge in this cause;
NOW, THEREFORE, IT IS ORDERED that an extension of time is GRANTED to and including May 7, 2001, pursuant to the District Court Rules.
On March 30, Defendant filed a motion to dismiss for failure to timely commence trial. The State responded, arguing that Judge Parsons had orally granted a sixty-day extension on January 5, and that he had subsequently granted an additional thirty-day extension because the April 30 trial date was outside of the sixty-day extension originally granted. The State contended that it had been delayed in sending Judge Parsons a written order on the extension until February 27 "[d]ue to the press of business."
Judge Kevin R. Sweazea held a hearing on the motion to dismiss on April 20. At the hearing, Defendant argued that the rule was not followed, mandating dismissal, because a verified petition was necessary and the judge could not enter an order without a verified petition several days after the date to commence trial had passed. Defendant further argued that the order was not a proper nunc pro tunc order because the acts necessary to support the order had not been performed and the judge did not have the authority to grant the order without the proper procedure being followed. She contended that the State had the obligation to seek an extension and that she did not need to show prejudice, but that she did file her jury instructions, motion in limine, and voir dire, as required by the court. She asserted that the prosecutor had made no attempt to abide by the rule, and therefore, there could be no technical violation of a rule that was not followed in the first place.
The State called Judge Parson
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