N.M. R. Crim. P. Dist. Ct. 5-604
N.M. R. Crim. P. Dist. Ct. 5-604
Committee commentary. - The 2011 amendments to this rule are intended to codify the Supreme Court's ruling in State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20. Accordingly, the six-month rule provisions previously applicable to cases originally filed in the district court have been withdrawn. While there is no longer a "six-month rule" for cases that originate in the district court, the district court should remain mindful of the defendant's right to a speedy trial. The arraignment provision in Paragraph A of the prior version of this rule has been moved to Paragraph A of Rule 5-303 NMRA.
This rule now deals exclusively with cases falling within the concurrent trial jurisdiction of the magistrate, metropolitan, or municipal court and the district court that are originally filed in a limited jurisdiction court and later dismissed and refiled in the district court. Under Paragraph A of the rule, when such cases are refiled in district court, the prosecution must indicate that the case is refiled in the caption of the initiatory pleading filed in the district. Paragraph A also sets forth information the prosecution must set forth in the first paragraph of the initiatory pleading.
Paragraph B recognizes that if the district court does not set the case for trial within the trial deadline that would have applied had the case remained in the lower court, or grants a continuance beyond that deadline, the defendant may file a motion asking the district court to consider whether the case should be dismissed based on a consideration of the speedy trial factors. But even if the case is set for trial within the trial deadline that would have applied in the lower court, Paragraph B also recognizes that dismissal on speedy trial grounds is not necessarily precluded if the defendant moves for such relief and consideration of the speedy trial factors warrants dismissal.
[Commentary as amended, provisionally for one year, by Supreme Court Order No. 09-8300-032, effective September 1, 2009, for all petitions for extension of time pending in the district court or Supreme Court; as amended by Supreme Court Order No. 11-8300-019, effective March 23, 2011.]
ANNOTATIONS The 2011 amendment, approved by Supreme Court Order No. 11-8300-019, effective May 1, 2011, rewrote the rule to eliminate the six-month rule provisions and to provide for the refilling of cases previously dismissed in the magistrate, metropolitan, and municipal courts and the consideration of the defendant's right to a speedy trial in refiled cases. The 2009 amendment, approved provisionally for one year by Supreme Court Order No. 09-8300-032, effective September 1, 2009, for all petitions for extension of time pending in the district court or Supreme Court, in Paragraph C, at the end of the first sentence, added "for six (6) months"; added the second sentence, including Subparagraphs (1) through (5); and deleted the phrase which stated that the aggregate of all extensions granted by the district court may not exceed six (6) months; deleted former Paragraph D which provided that for good cause shown, the time for extension of trial may be extended by the Supreme Court or a justice of the Supreme Court; re-lettered former Paragraphs E through G as Paragraphs D through F; in re-lettered Paragraph D, deleted the former second and third sentences which provided that if the petition is filed in the Supreme Court, the statement for good cause shall include a statement of a definite trial date and that upon request, the district court shall provide the parties with a trial date; in Paragraph E, deleted the former first sentence which provided that if the trial did not commence within six (6) months or within the period of any extension, the information or indictment may be dismissed with prejudice or the court may impose other appropriate sanctions; and added Subparagraphs (1) and (2). The 2008 amendment, approved by Supreme Court Order No. 08-8300-52, effective November 24, 2008, in Paragraph F, changed "the information or indictment filed against such person shall be dismissed" to "the information or indictment filed against such person may be dismissed" and added the provision at the end of the sentence that the court may consider other sanctions as appropriate. The 2000 amendment, effective for extension petitions filed on and after May 1, 2000, substituted "to determine the competency of the defendant" for "on a finding of incompetency" in Paragraph B(2), substituted "if the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or surrender of the defendant" for "the date of arrest of the defendant for failure to appear", redesignated former Paragraphs B(6) and B(7) as present Paragraphs B(7) and B(8) and added Paragraph B(6). The 1998 amendment, effective for extension petitions filed on and after September 1, 1998, added present Paragraph C; designated the provisions of former Paragraph C as present Paragraphs D and E; in Paragraph D, inserted "For good cause shown" at the beginning, and deleted "or a judge designated by the Supreme Court, for good cause shown" at the end; in Paragraph E, added the heading, substituted "court" for "Supreme Court" in the first sentence, substituted "applicable time limits prescribed by this rule" and "applicable time limits", twice, for "six (6) month period" in the second sentence, substituted "court" for "Supreme Court" in the fifth sentence, and, in the sixth sentence, substituted "court" for "Supreme Court", "applicable time limit" for "six (6) month period", and "trial must commence" for "defendant must be tried"; redesignated former Paragraph D as Paragraph F, inserted "the" preceding "event" near the beginning; and redesignated former Paragraph E as Paragraph G, deleted "children's court proceedings or to" preceding "cases" and "metropolitan" preceding "magistrate"; and made minor stylistic changes throughout the section. Delay in enforcing sentence. - The right to a speedy trial does not include delays after a defendant has been sentenced. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836. Reappointment of counsel. - Where defendant, who was initially represented by counsel, requested that defendant be allowed to appear pro se; the trial court thoroughly and adequately advised defendant of the risks of self-representation and defendant understood the risks; defendant had the benefit of previously appointed counsel who assisted defendant before defendant appeared pro se; months later, defendant moved to reappoint counsel on the day before trial; defendant did not articulate why defendant needed additional assistance to prepare a defense; the case was a routine stolen property matter and defendant never expressed any concern regarding the nature or complexity of the case; and reappointing counsel would have caused the court and the prosecution significant inconvenience, the court did not abuse its discretion in denying defendant's motion. State v. Archuleta, 2012-NMCA-007, 269 P.3d 924, cert. denied, 2011-NMCERT-012. Dismissal of cases in courts of limited jurisdiction and refiling in district court. - When charges are dismissed in courts of limited jurisdiction, which include magistrate, metropolitan, and municipal courts, and later refiled in district court, the triggering event for six-month purposes is the triggering event that occurred in the court of limited jurisdiction, and the six-month time period is not automatically reset upon the refiling. Any inquiry into the state's reasons for dismissing and refiling in district court should be done within the context of any speedy trial challenge defendant may raise after the case is refiled in district court. State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20, aff'g State v. Yates, 2008-NMCA-129, 144 N.M. 859, 192 P.3d 1236. Withdrawal of rule. - Effective for all cases pending as of May 12, 2010, the court withdraws the six-month rule provisions set forth in Rule 5-604(B)-(E) NMRA. State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20, aff'g State v. Yates, 2008-NMCA-129, 144 N.M. 859, 192 P.3d 1236. Withdrawal of the six-month rule is not an ex post facto law. - The retroactive withdrawal of the six-month rule from Rule 5-604 NMRA, which was a procedural rule, is not an unconstitutional ex post facto law under the United States Constitution. State v. Romero, 2011-NMSC-013, 150 N.M. 80, 257 P.3d 900. Withdrawal of the six-month rule did not violate due process as an ex post facto law. - Where the district court dismissed defendant's case under the six-month rule without engaging in a speedy trial analysis because the state had failed to show exceptional circumstances for filing a motion for an extension of time to commence trial well beyond the deadlines required under Rule 5-604 NMRA; and the state's appeal from the order of dismissal was pending on May 12, 2010, the withdrawal of the six-month rule in defendant's case did not violate due process as an ex post facto law. State v. Romero, 2011-NMSC-013, 150 N.M. 80, 257 P.3d 900. Withdrawal of six-month trial rule did not violate Article IV, Section 34 of the Constitution. - Article IV, Section 34 does not apply to the retroactive withdrawal of the six-month rule from Rule 5-604 NMRA. State v. Romero, 2011-NMSC-013, 150 N.M. 80, 257 P.3d 900. Application of Savedra. - The withdrawal of the six-month rule by the court in State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20, applies to all pending cases in which a judgment of conviction has not been rendered, the availability of appeal has not been exhausted, and the time for a petition for certiorari has not elapsed or a petition for certiorari has not been finally denied as of May 12, 2011. State v. Martinez, 2011-NMSC-010, 149 N.M. 370, 249 P.3d 82, rev'g 2010-NMCA-003, 147 N.M. 500, 226 P.3d 14. Where the district court dismissed all charges against defendant because of a violation of the six-month rule, defendant's case was still pending on May 12, 2010, and the six-month rule did not apply to defendant's case. State v. Martinez, 2011-NMSC-010, 149 N.M. 370, 249 P.3d 82, rev'g 2010-NMCA-003, 147 N.M. 500, 226 P.3d 14. Dismissal of cases in magistrate court and refiling in district court. - Where the state dismissed defendants' magistrate charges for DWI and refiled the same charges in district court pursuant to a policy in which the prosecutor would dismiss a case in magistrate court once it became apparent that there would be no plea agreement and then refile the same charges in district court, and the state offered no other reason for the dismissals and subsequent refilings, the state failed to meet its burden to show why the dismissals and refilings were done for reasons other than to circumvent the six-month rule, defendants' six-month rule time period commenced with either the arraignment or waive of arraignment in magistrate court and continued to run until they expired, and a new six-month rule time period did not commence once the cases were refiled in district court. State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20, aff'g State v. Yates, 2008-NMCA-129, 144 N.M. 859, 192 P.3d 1236. Defendant's failure to appear at a docketing call and the district court's oral statement that a warrant would issue are not tolling events. - Where defendant failed to appear in court for a docket call; the prosecutor requested that a bench warrant be issued for defendant's failure to appear; the district court stated that a bench warrant would issue; the bench warrant was not issued until eleven days after the six-month rule date expired and twenty-nine days after defendant's failure to appear, the district court did not err in dismissing the charges against defendant pursuant to Rule 5-604 NMRA. State v. Martinez, 2010-NMCA-003, 147 N.M. 500, 226 P.3d 14, cert. granted, 2009-NMCERT-012. Oral extension of time. - Where a pretrial conference occurred at a time when defendant had not employed new counsel after defendant's first counsel had withdrawn; neither defendant nor counsel for defendant appeared at the pretrial conference; the prosecutor orally requested an extension to the six-month rule to allow defendant and defendant's new counsel to prepare for trial; the district court orally granted a three-month extension; the extension was never filed with the district court or entered into the record; at hearings on defendant's motion to dismiss for violation of the six-month rule date, the state did not argue that the district court had granted an extension of the six-month rule date; and the state had forty-nine days to file an extension before the expiration of the six-month rule date and ninety-one days before defendant filed motions to dismiss, the court would not reverse the dismissal of the charges against defendant under a fundamental error analysis on the ground that the district court orally granted a time extension. State v. Martinez, 2010-NMCA-003, 147 N.M. 500, 226 P.3d 14, cert. granted, 2009-NMCERT-012. Refiling to avoid discovery sanction. - Where the magistrate court suppressed the results of the breath test administered to the defendant because the state had failed to timely disclose the appropriate machine certification, the failure to produce the certification was prima facie evidence of the state's lack of preparedness and does not entitle the state to the benefit of a new six-month rule period. State v. Rayburns, 2008-NMCA-050, 143 N.M. 803, 182 P. 3d 786. Forfeiture of right to seek an extension of time. - Where the state failed to request an extension of time to commence trial from the Supreme Court until twenty-eight days after the expiration of the prior extension of time granted by the district court and failed to establish exceptional circumstances justifying its untimely petition, the state forfeited its right to seek an extension of time from the Supreme Court and dismissal of the charges against the defendant with prejudice was mandatory. Duran v. Eichwald, 2009-NMSC-030, 146 N.M. 341, 210 P.3d 238. Withdrawal of plea. - Where the district court orally allowed the defendant to withdraw the defendant's plea, the six month period commenced to run on the date of the court's oral ruling, not on the date a written order allowing the defendant to withdraw the plea was filed. State v. Enlow, 2009-NMCA-038, 146 N.M. 52, 206 P.3d 163. Refiling early in the six month period. - Where the district attorney investigated the possibility of disposing of the case in magistrate court at or before the pretrial conference, early in the six-month period, and the district attorney's policy of refilling cases that could not be resolved quickly in the magistrate court was intended to resolve the cases as quickly as possible, the dismissal of the case in magistrate court and refilling in district court was not done for bad reasons or to circumvent the six-month rule. State v. Lozano, 2008-NMCA-082, 144 N.M. 250, 185 P.3d 1100. Exceptional circumstances did not exist to justify the granting of the state's petition for an extension to commence trial that was filed one day after the six-month time period expired where the state did not seek the extension earlier because of its heavy caseload, defense counsel failed to respond to the prosecutor's phone call with a position on the extension until after the district court closed on the last day of the rule period, and the docket of the district court necessitated rescheduling the trial. State v. Dominguez, 2007-NMCA-132, 142 N.M. 631, 168 P.3d 761. For the six-month rule to apply to a new, identical case, the district court must enter an order of dismissal, or the state must file a nolle prosequi, to properly close the original case. State v. Lucero, 2007-NMCA-096, 142 N.M. 315, 164 P.3d 1014 Application to consecutive, identical criminal information. - Where the district court rejected a plea agreement and ordered the remand of the case to magistrate court for a preliminary hearing, the case was not closed by the order for remand, and the state subsequently filed an identical criminal information in district court, the district court correctly applied the six-month rule to the first case. State v. Lucero, 2007-NMCA-096, 142 N.M. 315, 164 P.3d 1014 Delay due to state being unaware of defendant's location. - Where the state claims that the delay in bringing the defendant to trial was because the state was unaware of the defendant's location, the state must do more than merely claim that it was unaware of the defendant's location, the state must affirmatively explain why it could not reasonably have been expected to bring the defendant to trial during that time. State v. Maddox, 2007-NMCA-102, 142 N.M. 400, 166 P.3d 461, cert. granted, 2007-NMCERT-008. Delay due to plea negotiations. - Absent an agreement by the defendant to suspend proceedings or waive his speedy trial right, plea negotiations do not obviate the state's duty to bring the defendant to trial in a timely fashion and does not alone constitute a valid reason for a delay. State v. Maddox, 2007-NMCA-102, 142 N.M. 400, 166 P.3d 461, cert. granted, 2007-NMCERT-008. Waiver. - Where the defendant filed a motion for a continuance of his trial and then stipulated to a second extension, the defendant waived the six-month rule. State v. Collins, 2007-NMCA-106, 142 N.M. 419, 166 P.3d 480, cert. denied, 2007-NMCERT-008. No time frame on the filing of speedy trial motions in refiled concurrent jurisdiction cases. - Where defendant was charged in magistrate court with aggravated driving under the influence of intoxicating liquor, and where the state dismissed the magistrate court case and refiled the charge in district court, the district court did not err in considering the merits of defendant's motion to dismiss, despite the Garza twelve-month benchmark not having been met, because for refiled concurrent jurisdiction cases, a defendant may assert a speedy trial challenge whenever the district court fails to schedule a refiled case within the trial deadline that would have been applicable in the court of limited jurisdiction. State v. Radler, 2019-NMCA-052. Right to speedy trial not violated. - Where defendant was charged in magistrate court with aggravated driving under the influence of intoxicating liquor, and where the state dismissed the magistrate court case and refiled the charge in district court, the district court erred in concluding that defendant's right to a speedy trial was violated, because although the reasons for delay and assertion of the right factors weighed slightly in defendant's favor, the length of delay and prejudice factors weighed against him, and where a defendant has failed to establish particularized prejudice, there is no speedy trial violation. State v. Radler, 2019-NMCA-052. Twenty-six month delay. - Defendant's right to a speedy trial was violated where the defendant's trial was delayed for twenty-six months because the state failed to make its witnesses available for pretrial interviews, despite repeated promises that it would do so and despite repeated extensions from the district court and the Supreme Court to permit the state to do so. State v. Johnson, 2007-NMCA-107, 142 N.M. 377, 165 P.3d 1153, cert. denied, 2007-NMCERT-008. Right to speedy trial not violated. - Where defendant was arraigned in magistrate court for DWI on April 23, 2008; defendant was subsequently indicted for felony DWI and the state dismissed the magistrate court case; and defendant's trial occurred on January 8, 2009, defendant was not denied the right to a speedy trial. State v. Loya, 2011-NMCA-077, 150 N.M. 373, 258 P.3d 1165, cert. denied, 2011-NMCERT-006, 150 N.M. 763, 266 P.3d 632. Right to speedy trial violated. - Where defendant's trial was delayed for nearly three and one-half years because defense counsel failed to pursue the issue of defendant's competency and the state failed to ascertain what was happening in the case or to move it forward, defendant was incarcerated during the delay, defendant's diminished intellectual capacity prevented him from asserting the right to a speedy trial and defense counsel was not in a position to make a speedy trail claim on defendant's behalf because of defense counsel's unmanageable caseload, and five years had passed since the crime was committed and the state offered no evidence to rebut defendant's allegation that the child victim's memory and therapy during the five-year period would make it difficult to determine what really happened in the case, defendant's right to a speedy trial was violated. State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147 P.3d 885, cert. granted, 2006-NMCERT-011. State duty. - The state has a duty to monitor a case and ensure that steps are being taken to bring defendant to trial in a timely manner. State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147 P.3d 885, cert. granted, 2006-NMCERT-011. Neglect of defense counsel. - Although the general rule is that a defendant must be held accountable for actions of his or her attorney, delays caused by the neglect of court-appointed counsel cannot be held against a defendant for speedy trial purposes. State v. Stock, 2006-NMCA-140, 140 N.M. 676, 147 P.3d 885, cert. granted, 2006-NMCERT-011. Rule compared regarding noncompliance with time limits. - Despite notable similarities of their provisions, this rule, Rule 10-226 NMRA and Rule 10-320 NMRA, each has an additional provision that Rule 10-229 NMRA does not have. These rules all provide that noncompliance with the time limits of the rules or with the time limits of any extensions granted shall result in dismissal with prejudice of the charges against the accused, and Rule 10-229 NMRA has no such provision. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004. Defendant had right to prompt trial under this rule. State v. Guzman, 2004-NMCA-097, 136 N.M. 253, 96 P.3d 1173, cert. denied, 2004-NMCERT-008. Purpose of rule. - This rule was adopted to assure the prompt trial and disposition of criminal cases, not to effect dismissals by a technical application. This rule is to be read with common sense. State v. Flores, 1982-NMSC-132, 99 N.M. 44, 653 P.2d 875; State v. Eden, 1989-NMCA-038, 108 N.M. 737, 779 P.2d 114. The rule accomplishes its purpose by requiring trial to commence within six months of various events, failing which dismissal of the charges is required unless an extension of time has been properly obtained. State v. Jaramillo, 2004-NMCA-041, 135 N.M. 322, 88 P.3d 264, cert. denied, 2004-NMCERT-004. Effect of common sense. - Court has refused to read the six-month rule or view the facts relating to issues arising under it in such a manner that would require a dismissal when common sense would indicate otherwise. State v. Jaramillo, 2004-NMCA-041, 135 N.M. 322, 88 P.3d 264, cert. denied, 2004-NMCERT-004. State law requires that criminal cases be tried within six months. LaVoy v. Snedeker, ____ F.Supp. ___ (D.N.M. 2004 ). Cases before magistrate. - District court erred in reversing defendant's convictions on grounds that this rule was violated; because the case was heard before a magistrate, this rule was inapplicable and Rule 6-703 NMRA should have been applied. State v. Wilson, 1998-NMCA-084, 125 N.M. 390, 962 P.2d 636. When the state dismisses a case in magistrate court in order to preserve its right to appeal an order suppressing evidence and refiles in district court, a new six-month period, measured as provided in the rule, applies to the charges in district court. State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Right arises upon initiation of formal proceedings. - Constitutional right to a speedy trial arises, or becomes applicable, only upon the initiation of formal prosecution proceedings. State v. Crump, 1971-NMSC-051, 82 N.M. 487, 484 P.2d 329 (decided under former law). Where a defendant was first "accused" of criminal damage to property under an indictment in February 1988 and he was tried in May, three months later, such a delay cannot give rise to a speedy trial claim in view of the six-month time limit on commencement of criminal trials. State v. Haar, 1990-NMCA-076, 110 N.M. 517, 797 P.2d 306, cert. denied, 110 N.M. 330, 795 P.2d 1022. Verified petition required by rule ensures that the judge has the information necessary to determine if an extension is proper. State v. Guzman, 2004-NMCA-097, 136 N.M. 253, 96 P.3d 1173, cert. denied, 2004-NMCERT-008. Filing of charging papers does not begin six-month period. - This rule provides that the time at which the six-month rule starts to run begins with the latest of several events. None of them is the filing of the charging papers. State v. Larson, 1988-NMCA-019, 107 N.M. 85, 752 P.2d 1101. Filing of amended complaint. - The filing of an amended complaint is not an event that triggers the running of the six-month period regarding the trial of a criminal case or an habitual criminal proceeding. State v. Jacquez, 1994-NMCA-166, 119 N.M. 127, 888 P.2d 1009. Period prior to filing of indictment is not to be considered in determining whether there was a violation of defendant's constitutional right to a speedy trial. State v. Crump, 1971-NMSC-051, 82 N.M. 487, 484 P.2d 329 (decided under former law). Defendant may waive requirements of this rule. State v. Guzman, 2004-NMCA-097, 136 N.M. 253, 96 P.3d 1173, cert. denied, 2004-NMCERT-008. The six-month time limit applies to youthful offender proceedings in which probable cause is found, notwithstanding the language in the rule stating that it does not apply to children's court proceedings. State v. Michael S., 1998-NMCA-041, 124 N.M. 732, 955 P.2d 201. Six-month period starts when defendant waives arraignment. - Since the defendant was originally indicted for numerous offenses, was diverted into a preprosecution diversion program (PDP), after which the state dismissed the indictment, was later terminated from the program because she had violated the terms of PDP contract, was reindicted on the same charges for which she had previously been indicted, and waived her arraignment on the charges in the second indictment, the six-month time period for commencement of trial pursuant to Paragraph B was calculated from the date the defendant waived arraignment on the second complaint, and not from the date the defendant was terminated from the PDP, because there was no evidence that the dismissal of the initial indictment and the defendant's later reindictment were carried out for purposes of delay or an attempt to circumvent Paragraph B(6). State v. Altherr, 1994-NMCA-029, 117 N.M. 403, 872 P.2d 376. Commencement of trial. - For purposes of the six-month time limit of Paragraph B of this rule, a trial commences on the date that a petit jury is selected. State v. Rackley, 2000-NMCA-027, 128 N.M. 761, 998 P.2d 1212, cert. denied, 128 N.M. 689, 997 P.2d 821. Time for ruling on timely motion filed under Paragraph E. - Because this rule does not provide a time within which the applicable court must rule on a timely-filed motion for extending the time for commencement of trial, this rule must be construed according to other rules of criminal procedure. Specifically, Rule 5-601(F) NMRA establishes a general rule that all motions shall be disposed of within a reasonable time after filing and Rule 5-104(B)(1) NMRA recognizes the discretion of the district court to enlarge a time limitation contained in the Rules of Criminal Procedure if requested before the applicable time limitation expires. Under those rules, the district court has reasonable time after filing to rule on a timely-filed petition under Paragraph E of this rule, regardless of the expiration of the six-month period of Paragraph B of this rule. State v. Sandoval, 2003-NMSC-027, 133 N.M. 399, 62 P.3d 1281. Extension of trial date by agreement of parties. - Where an extension of the trial date was obtained within six months of the defendant's arraignment and through agreement of the parties, the timing of the defendant's trial did not violate Paragraph B of this rule. State v. Gutierrez, 2003-NMCA-077, 133 N.M. 797, 70 P.3d 787, cert. denied, 133 N.M. 771, 70 P.3d 761. Plea negotiation period. - Subparagraph (7) of Paragraph B does not apply to suspend the six-month rule for plea negotiations, as such; the appropriate inquiry is whether, before the rule expired, an oral or written agreement was reached or there was a clear understanding that the action against the defendant was being held in abeyance. State v. Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502. Defendant affirmatively waived right to timely trial under this rule where he apparently made a strategic decision that he needed more time for discovery and filed a stipulated motion for continuance of his trial; defendant did not challenge that there was good cause shown for the continuance nor did he state how the temporary inability to locate the victim caused him prejudice. State v. Bennett, 2003-NMCA-147, 134 N.M. 705, 82 P.3d 72, cert. denied, 2003-NMCERT-003. Where, although defendant did not agree to an extension under this rule, she stipulated to a joint motion for continuance which, as she conceded set forth good cause for an extension, and when the time came for her to take action to assert her rights under this rule, she did not do so and she did not even act within a reasonable time after the prosecutor and the judge took action to correct the oversight that resulted in the passing of the rule date, defendant waived her rights under this rule by her actions. State v. Guzman, 2004-NMCA-097, 136 N.M. 253, 96 P.3d 1173, cert. denied, 2004-NMCERT-008. Defendant waived six-month limit for plea hearing. - Evidence that the defendant's attorney orally agreed to a plea, and affirmatively represented to the state that setting the plea hearing after the six-month rule expired was "no problem," was sufficient to show that the defendant waived the rule. State v. Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502. Acquiescence in delay. - Where defendant participated in at least four pretrial conferences and hearings without making any objection to the delay in his trial, defendant acquiesced in the delay. State v. Lobato, 2006-NMCA-051, 139 N.M. 431, 134 P.3d 122, cert. denied, 2006-NMCERT-004. Entry of voluntary plea of guilty constitutes waiver of whatever right a defendant may have had to a speedy trial. Salazar v. State, 1973-NMCA-097, 85 N.M. 372, 512 P.2d 700. Delay arising prior to grant of extension of time. - The court of appeals may consider a speedy trial claim where the alleged delay arose prior to, and was not the result of, the supreme court's grant of an extension of time within which to proceed to trial. State v. Garcia, 1990-NMCA-065, 110 N.M. 419, 796 P.2d 1115, overruling State v. Apodaca, 1987-NMCA-033, 105 N.M. 650, 735 P.2d 1156 to the extent it holds otherwise. Conclusion of trial within extension period. - An extension extends the time for trial to commence; it does not require that the trial be concluded within the extension period. State v. Higgins, 1988-NMCA-072, 107 N.M. 617, 762 P.2d 904. When period begins to run where there is improper delay between filing and arrest. - Although six-month period would not normally begin until defendant's arrest, the period began to run when information was filed in situation where defendant had sought dismissal after a 10 and one-half month delay between filing of information and arrest on grounds that a course of procedure had been followed to circumvent this rule. Under such circumstances the state was required by proof to demonstrate that such course had not been followed to delay defendant's trial beyond the six-month period, and where it failed to meet that burden, defendant's motion to dismiss was properly granted. State v. Lucero, 1977-NMCA-108, 91 N.M. 26, 569 P.2d 952. Delay in arraignment not caused intentionally by state. - Since the late arraignment was due to the district court's arraignment schedule and the reassignment of the case to a different judge within the district, and the defendant did not allege that the state intentionally sought to have the arraignment delayed, the provision requiring commencement of the trial within six months was literally applied. State v. Coburn, 1995-NMCA-063, 120 N.M. 214, 900 P.2d 963. Trial commenced within six months of denial of interlocutory appeal. - Trial commenced within six months of the issuance of an appellate court's mandate denying an application for interlocutory appeal was commenced within the time provided for by the rule. State v. Eden, 1989-NMCA-038, 108 N.M. 737, 779 P.2d 114. The filing of an interlocutory appeal by defendant interrupted the running of the six-month rule, and the six-month time period was triggered anew on the date when the appellate court's mandate disposing of the interlocutory appeal was filed in the district court. State v. Mayfield, 1996-NMCA-093, 122 N.M. 298, 923 P.2d 1183. Trial after mistrial. - This rule clearly contemplates permitting an additional six months to try a case after declaration of a mistrial and, although it states that the six-month period commences when the "order is filed," it does not require that the order be entered contemporaneously with the discharge of the jury. State v. Reyes-Arreola, 1999-NMCA-086, 127 N.M. 528, 984 P.2d 775, cert. denied, 127 N.M. 390, 981 P.2d 1208. Declaration of mistrial. - The rule does not make a distinction between those orders declaring mistrial that are later found to be proper and those that are not. An order declaring mistrial operates to restart the six-month rule even if the order of mistrial is erroneous. State v. Lobato, 2006-NMCA-051, 139 N.M. 431, 134 P.3d 122, cert. denied, 2006-NMCERT-004. Where there is transfer from children's court to district court and information is filed there, the six-month rule of Subsection (b) (see now Paragraph B) begins with the filing in the district court of the information or indictment or the date of arrest, whichever is later. State v. Howell, 1976-NMCA-020, 89 N.M. 10, 546 P.2d 858. Failure to sever multiple counts not error where defendant not prejudiced. - Where the strength and quality of the evidence on the various counts convinces the appellate court that a defendant was not prejudiced by the failure to sever multiple counts submitted to the jury, the trial court did not err in refusing to sever. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69, cert. denied, 93 N.M. 683, 604 P.2d 821. Second indictment after termination of first cause. - Under the previous rule, Rule 95, N.M.R. Civ. P. (see now Rule 1-095 NMRA), where the indictments were obtained following the termination of the first cause as a result of newly obtained evidence which presumably came to light after the filing of the nolle prosequi, the six-month time limitation began to run with the second indictment. State ex rel. Delgado v. Stanley, 1972-NMSC-024, 83 N.M. 626, 495 P.2d 1073. When the defendants alleged without contradiction by the state that the first charges against them were dismissed on the eve of trial as the six-month rule was about to run, this put the burden on the state to demonstrate its good faith and show that it did not take its actions to circumvent the six-month rule or for other bad reasons. State v. Bolton, 1997-NMCA-007, 122 N.M. 831, 932 P.2d 1075. Second indictment after termination of first cause. - Because the state filed a nolle prosequi and then re-indicted defendant with additional charges following a mistrial, the six-month time limit for his second trial did not begin to run until after he was arraigned on the second indictment. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140. Where wrong person arrested. - Where the police mistakenly arrested an innocent man whose name and description were similar to those of a fugitive defendant, the trial court erred in dismissing the indictment against the fugitive defendant based on a finding that the innocent man had been arrested and not brought to trial within the time period required by the six-month rule. The wrongful arrest of an innocent man cannot inure to the benefit of a fugitive who has not had his rights abridged and who is not before the court. State v. Portillo, 1990-NMSC-055, 110 N.M. 135, 793 P.2d 265 (1990). Amended information charging a new and different offense supersedes the abandoned original information, and the six-month rule commences running on the date the amended information is filed. State v. Benally, 1983-NMCA-014, 99 N.M. 415, 658 P.2d 1142. Amended information may start six-month period. - An amended supplemental criminal information, charging the defendant with being an habitual offender, was sufficiently different from the original supplemental information to start a new six-month period within which the habitual criminal proceeding had to be commenced, since a different subsection of Section 31-18-17 NMSA 1978, the habitual offender statute, was involved, an additional prior conviction was alleged, and the defendant was arraigned for a second time. State v. Chacon, 1985-NMSC-082, 103 N.M. 288, 706 P.2d 152. Recommencement of the six-month period following a stay to determine competency is consistent with the intent of this rule. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440. The time during which a defendant's competency to enter into a plea agreement is being assessed suspends the proceedings and the six-month period begins anew after the plea is assessed; when the plea is rejected, the period begins from that date. State v. Lucas, 1990-NMCA-056, 110 N.M. 272, 794 P.2d 1201. Diversion program notification recommenced six month period. - The district court improperly determined that the state had failed to comply with paragraph B, because the six-month period recommenced when the district attorney's office notified defendant that he was not acceptable for its preprosecution diversion program. State v. Hastings, 1993-NMCA-111, 116 N.M. 344, 862 P.2d 452. Motion seeking a dismissal under this rule for a violation of the right to a speedy trial is not governed by the requirements of Rule 33(e) (see now Rule 5-601 NMRA), which specifies that motions shall be raised at arraignment or within 20 days thereafter unless upon good cause the court waives the time requirement. State v. Aragon, 1982-NMCA-173, 99 N.M. 190, 656 P.2d 240. Factors considered in determining denial of right to speedy trial. - Whenever there is a delay of more than six months between the time of arraignment and the date of the trial, four factors are to be considered in determining whether a defendant has been denied the right to a speedy trial. These are length of delay, reason for delay, defendant's assertion of his right, and ensuing prejudice to the defendant. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440. Eighteen-month delay between arrest and trial did not violate right to speedy trial in a case where (1) the state charged defendants with first-degree murder in contravention of the magistrate's bind-over order, (2) defendants prevailed on interlocutory appeal, and (3) the state dropped charges, released defendants and subsequently obtained a grand jury indictment for first-degree murder. State v. McCrary, 1984-NMSC-005, 100 N.M. 671, 675 P.2d 120. Eighteen-month delay between arraignment and trial did not violate right to a speedy trial, where the defendant acquiesced to a stay in the proceedings during determination of his competence and did not assert his right to a speedy trial until the day the trial began, six months after the trial court lifted the stay. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440. Arraignment prior to preliminary examination request did not begin six-month period. - Since an arraignment cannot occur until after preliminary examination is held, arraignment prior to preliminary examination request was not effective to start operation of six-month period in which trial must be commenced, so that six-month time limit did not start to run until defendant waived his arraignment. State v. Sanchez, 1984-NMCA-068, 101 N.M. 509, 684 P.2d 1174. Paragraph B six-month rule does not commence during pendency of case in children's court. State v. Sanchez, 1984-NMCA-068, 101 N.M. 509, 684 P.2d 1174. Paragraph B(5) did not toll six-month period where defendant had never been released from custody. - Subdivision (b)(5) (see now Subparagraph (5) of Paragraph B) was inapplicable to toll six-month requirement where, although conditions of release had been revoked for failure to appear, defendant had never actually been released from state's custody. State v. Romero, 1984-NMCA-087, 101 N.M. 661, 687 P.2d 96. Court of appeals is without authority to review supreme court orders granting extensions of time to commence trial, where defendant's cause, challenging the validity of the supreme court's ex parte order granting the state an extension of time in which to try him, was certified to that court. State v. Carter, 1974-NMCA-141, 87 N.M. 41, 528 P.2d 1281. The court of appeals has no power to review a supreme court order granting an extension of time under this rule as such an order is final. State v. Sedillo, 1974-NMCA-053, 86 N.M. 382, 524 P.2d 998cert. denied, 86 N.M. 372, 524 P.2d 988, 419 U.S. 1072, 95 S. Ct. 662, 42 L. Ed. 2d 669 (1974). Allegation of a denial of the defendant's right to a speedy trial based upon an extension granted to the prosecution by the supreme court under this rule is beyond review. State v. Mazurek, 1975-NMCA-066, 88 N.M. 56, 537 P.2d 51. The court of appeals is without authority to review supreme court orders granting extensions of time to commence trial. State v. Jaramillo, 1975-NMCA-050, 88 N.M. 60, 537 P.2d 55, cert. denied, 88 N.M. 318, 540 P.2d 248. The court of appeals has no authority to review actions of the supreme court in granting the extension of a trial. State v. Williams, 1978-NMCA-065, 91 N.M. 795, 581 P.2d 1290. Court of appeals could not review the propriety of the supreme court's grant of extensions of time. State v. Gallegos, 1989-NMCA-066, 109 N.M. 55, 781 P.2d 783. Although the court of appeals cannot review a decision of the Supreme Court extending the time for trial under Paragraph D, the court can review the trial court's decision under Paragraph C. State v. Sanchez, 2000-NMCA-061, 129 N.M. 301, 6 P.3d 503, cert. denied, 129 N.M. 249, 4 P.3d 1240. Technical violation of Paragraph A. - Where defendant makes no showing that his defense was prejudiced in any way by the delay, nor is there any question as to his identity or whether he understands the charge against him, a technical violation of Subdivision (a) (see now Paragraph A) will not result in a dismissal of the charges. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209 (1974); State v. Coburn, 1995-NMCA-063, 120 N.M. 214, 900 P.2d 963. Although there was a delay of more than fifteen days, the defendant made no showing that his defense was prejudiced in any way by the delay, and without such a showing, a technical violation will not result in a dismissal of the charges. State v. Jacquez, 1994-NMCA-166, 119 N.M. 127, 888 P.2d 1009. Arraignment under New Mexico law is not an indispensable stage in a criminal proceeding. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209. Right to file plea in abatement. - When the defendant appears for arraignment, he has the right to file a plea in abatement, if he has been denied a preliminary hearing. State ex rel. Hanagan v. Armijo, 1963-NMSC-057, 72 N.M. 50, 380 P.2d 196 (decided under former law). Where charge against defendant was filed and then dismissed under writ of habeas corpus, prosecution and conviction three years later under information containing same charge did not violate defendant's constitutional right to a speedy public trial under N.M. Const., art. II, § 14, nor his statutory right to be tried at first term of court after filing of information under 41-11-4, 1953 Comp., (since repealed). State v. Rhodes, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47 (decided under former law). Where a plea agreement is approved by the court, its conditions are applicable to determine timeliness of the filing of habitual criminal charges, as well as the judgment and sentence. State v. Santillanes, 1982-NMCA-118, 98 N.M. 448, 649 P.2d 516. Applicability of six-month rule to habitual criminal proceeding. - Where more than six months had passed since the filing of an information charging defendant under Section 31-18-5 (now 31-18-17) NMSA 1978 with being an habitual offender, the supreme court ordered that it be dismissed with prejudice in accordance with Subdivision (d) (see now Paragraph F) to the extent that the state was precluded only from filing another such information grounded upon all four of those felonies which were the basis for information dismissed. State v. Lopez, 1976-NMSC-012, 89 N.M. 82, 547 P.2d 565. Rule applies to habitual offender proceedings. State v. Padilla, 1978-NMCA-060, 92 N.M. 19, 582 P.2d 396, cert. denied, 92 N.M. 180, 585 P.2d 324. Delay in bringing habitual criminal charges. - Where trial is commenced within the time limitations imposed by this rule a defendant claiming to have been denied due process by a delay in the bringing of habitual criminal charges is required to make a showing of actual prejudice caused by the delay; the delay in itself does not a fortiori establish prejudice. State v. Santillanes, 1982-NMCA-118, 98 N.M. 448, 649 P.2d 516. "Arrest" means an arrest on charges that have been filed in the district court. State v. Dominguez, 1977-NMCA-128, 91 N.M. 296, 573 P.2d 230, cert. denied, 91 N.M. 249, 572 P.2d 1257. Out-of-state arrest. - Where defendant was arrested in another state on a New Mexico warrant for failure to appear, under Paragraph B(5), the six-month period began to run from the date of the out-of-state arrest, not the date when New Mexico authorities took custody of defendant. State v. Solano, 1999-NMCA-019, 126 N.M. 662, 974 P.2d 156, cert. denied, 126 N.M. 533, 972 P.2d 352 (1998). Tolling of time limitation while bench warrant outstanding. - Where the defendant was serving a sentence at the penitentiary at the time of an arraignment on separate charges and the court ordered the defendant returned to custody until further order but did not set bond nor order any specific "conditions of release," and where the defendant was later discharged from the penitentiary without the court's permission and the court ordered a bench warrant for the defendant's arrest because he did not appear at his pretrial conference, there was a tolling of the time limit within which the trial was to be commenced (which time limit began to run on the date of arraignment) during the time that the bench warrant was outstanding. State v. Flores, 1982-NMSC-132, 99 N.M. 44, 653 P.2d 875 (decided prior to 1983 amendment). Supreme court does not intend six-month provision to apply to delay resulting from appellate proceedings. State v. Padilla, 1978-NMCA-060, 92 N.M. 19, 582 P.2d 396, cert. denied, 92 N.M. 180, 585 P.2d 324. Time limit inapplicable once trial court dismissed supplemental information in habitual offender proceeding. - Once the trial court dismissed a supplemental information in an habitual offender proceeding, there was no case to be tried in the district court and thus no case to which the time limitation of this rule applied. Only upon reversal of the trial court's dismissal and issuance of a mandate returning the case to the district court would there be a case in the district court to which a time limitation was applicable. State v. Padilla, 1978-NMCA-060, 92 N.M. 19, 582 P.2d 396, cert. denied, 92 N.M. 180, 585 P.2d 324. Implied consent to continue date for trial. - By his and his attorney's actions in signing a plea agreement, knowing that a hearing on the plea was scheduled on a subsequent date, defendant expressed his implied consent to continue the date for trial past the date on which the state's extension of time ended, thereby suspending the running of the six-month requirement of the rule. State v. Sanchez, 1989-NMSC-068, 109 N.M. 313, 785 P.2d 224. Basis for continuance held sufficient. - Where the judge was newly appointed and failed to schedule the trial for that reason, good cause existed under Paragraph C to support the trial court's grant of a three-month extension. State v. Sanchez, 2000-NMCA-061, 129 N.M. 301, 6 P.3d 503, cert. denied, 129 N.M. 249, 4 P.3d 1240. Basis for continuance held insufficient. - Where defendant, who was charged with the murder of the victim, claimed that the victim shot at defendant and defendant shot the victim in self-defense; defendant requested a continuance one week before trial to allow defense counsel to examine a jacket defendant wore at the time of the shooting and an unidentified hard fragment found in the lining of the jacket in an attempt to bolster defendant's claim of self-defense; the court had previously granted defendant four continuances; the motion was heard on the day of trial after the jury had been selected; defense counsel did not offer any explanation regarding why the jacket and the unidentified fragment had not been discovered sooner or tested before the day of trial; and the court admitted the jacket into evidence and allowed defendant to argue that the hole in the jacket corroborated defendant's testimony that the victim shot defendant in the shoulder, the court did not abuse its discretion in denying the continuance. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517. Where defendant never indicated what particular facts witnesses would prove, or that he knew of no other witnesses by which such facts could be proved, defendant simply did not present a basis for a continuance, either on the question of a "sanity hearing" or on the merits of the cause. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238. Defendant's request for time to attempt to retain his own counsel was denied as it presented no independent basis for a continuance. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238. Where defendant, who appeared pro se, moved for a continuance on the day before trial because defendant had not been able to physically see some of the items defendant was alleged to have stolen; although defendant had seen photographs of the stolen items, defendant did not state how waiting one day to view the physical evidence rather than the photographs of the evidence caused defendant prejudice; and a continuance would have caused the court and the prosecution significant inconvenience, the court did not abuse its discretion in denying defendant's motion. State v. Archuleta, 2012-NMCA-007, 269 P.3d 924, cert. denied, 2011-NMCERT-012. Defendant-instigated objections to counsel held thwarting maneuver. - Trial court did not abuse its discretion in ruling that defendant instigated conflicts with his appointed counsel as a tactical maneuver to thwart the proceedings, where he did not raise any objections to his counsel until just before trial, at which time the six-month deadline for commencing trial had almost elapsed. State v. Lucero, 1986-NMCA-085, 104 N.M. 587, 725 P.2d 266. Rule inapplicable to sentencing. - The existence of Paragraph B of Rule 5-701 NMRA that establishes time limits for sentencing suggests that Paragraph B of this rule was not intended to apply to sentencing but was intended to apply only to trials and habitual criminal proceedings, as the plain meaning of the rule suggests. State v. Todisco, 2000-NMCA-064, 129 N.M. 310, 6 P.3d 1032, cert. quashed, 132 N.M. 484, 51 P.3d 527 (2002). Delay in probation revocation proceedings. - The time constraints of the speedy trial rule and the constitutional right under the state and federal constitutions to a speedy trial are inapplicable to probation revocation proceedings. However, delay in the institution and prosecution of probation revocation proceedings, along with a showing of prejudice to the probationer, may constitute a denial of due process, thereby requiring the state to waive any right to revoke defendant's probation. State v. Chavez, 1985-NMCA-003, 102 N.M. 279, 694 P.2d 927. Delaying the initiation and hearing of the defendant's probation violation until after the trial by federal authorities for the charges that were the basis of the alleged parole violation did not result in a showing of prejudice or oppression to the defendant, where defendant made no showing that he demanded an earlier hearing, was unable to call necessary witnesses on his behalf, or that any of the witnesses had trouble remembering any of the critical events surrounding the events relevant to the revocation proceedings. State v. Chavez, 1985-NMCA-003, 102 N.M. 279, 694 P.2d 927. State's petition for alternative writ constituted appeal. - State's petition to the supreme court for an alternative writ of prohibition or an alternative writ of superintending control constituted an appeal within the meaning of Paragraph B(4). State v. Valdez, 1990-NMCA-018, 109 N.M. 759, 790 P.2d 1040. Review of order granting extension of time. - A presiding judge had no authority to review or withdraw the order of a designated judge granting the state's petition for an extension of time to try the defendant because that authority rests solely with the Supreme Court. State v. Remaly, 1995-NMSC-060, 120 N.M. 492, 903 P.2d 234. Grant of extension does not preclude speedy trial review. - The grant of an extension of time for trial beyond the six-month limit of this rule by the Supreme Court does not preclude a lower court's review of a violation of the right to speedy trial. State v. Manzanares, 1996-NMSC-028, 121 N.M. 798, 918 P.2d 714. A Supreme Court ruling on a motion pursuant to this rule is not determinative of a subsequent speedy-trial motion except in the unlikely event the record specifically reflects the Supreme Court's analysis and decision on the issue being raised again below. State v. Manzanares, 1996-NMSC-028, 121 N.M. 798, 918 P.2d 714. Six month rule not violated. State v. Fernandez, 1994-NMCA-056, 117 N.M. 673, 875 P.2d 1104. In late August, 2000, trial was set for September 26, 2000. Based on the later April 3, 2000 arraignment date, the trial setting thus fell within the state's six-month rule for trial, because that period would have expired on October 3, 2000. LaVoy v. Snedeker, ____ F.Supp. ____ (D.N.M. 2004 ). Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - Intoxication as ground for police postponing arrestee's appearance before magistrate, 3 A.L.R.4th 1057. Adequacy of defense counsel's representation of criminal client regarding speedy trial and related matters, 6 A.L.R.4th 1208. Continuances at instances of state public defender or appointed counsel over defendant's objections as excuse for denial of speedy trial, 16 A.L.R.4th 1283. Waiver of right to counsel by insistence upon speedy trial in state criminal case, 19 A.L.R.4th 1299. What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time, 32 A.L.R.4th 840. 22A C.J.S. Criminal Law § 578 et seq.