State v. Harris ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,452 10 LEE HARRIS, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Reed S. Sheppard, District Judge 14 Gary K. King, Attorney General 15 Margaret McLean, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Santa Fe, NM 20 Jason Weaks, Assistant Public Defender 21 Albuquerque, NM 22 for Appellant 23 MEMORANDUM OPINION 24 KENNEDY, Judge. 1 Defendant appeals from the district court order revoking his probation, 2 entered pursuant to an admission, in which Defendant reserved his right to appeal 3 the court’s order denying his motion to dismiss. We issued a notice of proposed 4 summary disposition, proposing to summarily reverse. The State has responded to 5 our notice, indicating that it agrees with our proposed analysis and disposition. We 6 hold that the district court erred in denying Defendant’s motion to dismiss. We 7 therefore reverse. 8 On appeal, Defendant argues that the district court should have dismissed 9 the petition to revoke his probation because the adjudicatory hearing on the 10 petition was not held within the time prescribed by Rule 5-805(L) NMRA. [DS 5] 11 Our notice proposed to agree. The plain language of the rule provides that a 12 probationer’s initial hearing “shall be commenced within thirty (30) days” after the 13 file-date of the motion to revoke probation, Rule 5-805(G)(1), and “[t]he 14 adjudicatory hearing shall commence no later than sixty (60) days after the initial 15 hearing is conducted.” Rule 5-805(H). “If an adjudicatory hearing on the alleged 16 probation violation is not held within the time limits prescribed by this rule, the 17 motion to revoke probation shall be dismissed with prejudice.” Rule 5-805(L). 18 The State agrees with this Court that the adjudicatory hearing on the motion 19 to revoke Defendant’s probation was not timely held and that it did not seek any 20 extension of time for commencement of the hearing. [Response 2-3] The State 2 1 also agrees that the proper remedy should have been to grant Defendant’s motion 2 and dismiss the motion to revoke probation. [Response 3] 3 1 For the reasons set forth herein and in our notice, we reverse. 2 IT IS SO ORDERED. 3 4 RODERICK T. KENNEDY, Judge 5 WE CONCUR: 6 7 CELIA FOY CASTILLO, Judge 8 9 TIMOTHY L. GARCIA, Judge 4