{ "id": 4246318, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Jose Alfredo ORDUNEZ, Defendant-Appellee", "name_abbreviation": "State v. Ordunez", "decision_date": "2010-08-09", "docket_number": "No. 28,297; No. 32,589", "first_page": "620", "last_page": "627", "citations": [ { "type": "official", "cite": "148 N.M. 620" }, { "type": "parallel", "cite": "241 P.3d 621" }, { "type": "parallel", "cite": "2010-NMCA-095" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2006-NMCA-040", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2542983 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0381-01" ] }, { "cite": "104 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594905 ], "weight": 4, "pin_cites": [ { "page": "291" }, { "page": "710" }, { "page": "291" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0290-01" ] }, { "cite": "1999-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106521 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0154-01" ] }, { "cite": "2000-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217121 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 3, 6-9" }, { "page": "\u00b6\u00b6 3, 6-9" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0391-01" ] }, { "cite": "2007-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668439 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 17" }, { "parenthetical": "stating that, if the Legislature had wanted to draft a children's code statute with the same expiration of jurisdiction as seen in Section 31-20-8, it could have done so" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0501-01" ] }, { "cite": "2005-NMCA-001", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224618 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "\u00b6 21", "parenthetical": "recognizing that \"[a] probationer whose sentence has been suspended is entitled to credit against his or her sentence for the time served on probation\"" }, { "parenthetical": "recognizing that \"[a] probationer whose sentence has been suspended is entitled to credit against his or her sentence for the time served on probation\"" }, { "parenthetical": "recognizing that \"[a] probationer whose sentence has been suspended is entitled to credit against his or her sentence for the time served on probation\"" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0667-01" ] }, { "cite": "2010-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248331 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 52" }, { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0021-01" ] }, { "cite": "223 P.3d 360", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "147 N.M. 363", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2009-NMCERT-007", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2009-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4245406 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0006-01" ] }, { "cite": "86 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824190 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "226" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0224-01" ] }, { "cite": "2004-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77119 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "\u00b6 12", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0768-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "\u00b6 10", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "2010-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4246219 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "\u00b6 4", "parenthetical": "\"The interpretation of statutes is a question of law that we review de novo.\"" }, { "parenthetical": "\"The interpretation of statutes is a question of law that we review de novo.\"" }, { "parenthetical": "\"The interpretation of statutes is a question of law that we review de novo.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0620-01" ] }, { "cite": "2007-NMSC-055", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692839 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0786-01" ] }, { "cite": "82 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325851 ], "weight": 2, "pin_cites": [ { "page": "345-46" }, { "page": "707-08" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0345-01" ] }, { "cite": "2001-NMCA-078", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183099 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0076-01" ] }, { "cite": "2004-NMCA-032", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427939 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 39-43" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0223-01" ] }, { "cite": "82 N.M. 373", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326410 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "374", "parenthetical": "providing that the law in effect at the time of commission of the offense is controlling" }, { "page": "238", "parenthetical": "providing that the law in effect at the time of commission of the offense is controlling" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0373-01" ] }, { "cite": "98 N.M. 794", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582463 ], "weight": 2, "pin_cites": [ { "page": "798" }, { "page": "174" } ], "opinion_index": 1, "case_paths": [ "/nm/98/0794-01" ] }, { "cite": "104 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594905 ], "weight": 4, "pin_cites": [ { "page": "291" }, { "page": "710", "parenthetical": "tolling the probationary period while the probationer is a fugitive from justice" }, { "page": "292" }, { "page": "711" } ], "opinion_index": 1, "case_paths": [ "/nm/104/0290-01" ] }, { "cite": "2000-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217121 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 6-8" } ], "opinion_index": 1, "case_paths": [ "/nm/129/0391-01" ] }, { "cite": "86 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824190 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "226" }, { "page": "78", "parenthetical": "\"We will not construe statutes to achieve an absurd result or to defeat the intended object of the [Legislature.\"" } ], "opinion_index": 1, "case_paths": [ "/nm/86/0224-01" ] }, { "cite": "2004-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77119 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 1, "case_paths": [ "/nm/134/0768-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 1, "case_paths": [ "/nm/136/0372-01" ] } ], "analysis": { "cardinality": 908, "char_count": 26732, "ocr_confidence": 0.702, "pagerank": { "raw": 5.925142974760291e-08, "percentile": 0.37004609149027606 }, "sha256": "14a8a3b1615e2cf75a4923fa2ce16e9f757b1d47ec8ee056d9ae4a63f2587aae", "simhash": "1:181dba056eea5fe6", "word_count": 4235 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I CONCUR: RODERICK T. KENNEDY, Judge.", "LINDA M. VANZI, Judge (dissenting)." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Jose Alfredo ORDUNEZ, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} The State appeals from the district court\u2019s dismissal of probation revocation proceedings against Defendant in his driving while under the influence of intoxicating liquor or drugs (DWI) case for lack of jurisdiction. The district court concluded that it had no jurisdiction to address a statutory provision that denies credit to DWI offenders for time served on probation if they violate probation and the court does not revoke probation before the probationary period is concluded. We agree with the district court\u2019s interpretation of the statutes and hold that revocation of a defendant\u2019s probation and resultant forfeiture of probation credit must be ordered by the district court before the original period of probation expires. We therefore affirm.\nBACKGROUND\n{2} Following a guilty plea, Defendant was convicted for aggravated driving while under the influence of intoxicating liquor (refusal) and driving while license suspended or revoked. Defendant committed the crimes on August 30, 2004 and was a repeat DWI offender with three prior convictions. The judge sentenced Defendant to a total term of two years and 181 days, with six months and seven days to be served in the detention center and the remainder of the sentence (one year and six months and 174 days) suspended subject to supervised probation. The order of probation provided that Defendant is \u201cunder probation supervision until 10/19/2007.\u201d On September 7, 2007, the State filed a petition to revoke probation based on Defendant\u2019s August 18, 2007 arrest for driving while intoxicated and consumption of alcohol. The district court initially scheduled the probation revocation hearing for October 25, 2007 and then reset the hearing for December 20, 2007. Although the State filed its September 7, 2007 petition to revoke probation during the time Defendant was still subject to supervised probation, the hearing on the State\u2019s petition was not scheduled until after the supervised probation period was set to expire on October 19, 2007. Prior to the scheduled probation revocation hearing, the State filed an amended petition to revoke probation to include allegations that Defendant also violated probation on November 14, 2007, by failing breathalyzer tests administered by his probation officer. At the probation revocation hearing, Defendant successfully moved to dismiss the proceedings, arguing that the district court lost jurisdiction because Defendant\u2019s original period of probation had already expired. The district court granted the motion to dismiss, and this appeal followed.\nAPPLICABLE LAW\n{3} Before considering whether the district court erred in dismissing for lack of jurisdiction, we address the parties\u2019 assumption that the applicable law is the 2004 version of NMSA 1978, Section 66-8-102 (2004) (amended 2008). The parties indicate that the 2004 version applies because the underlying crimes upon which the probation was based occurred on August 30, 2004. See generally State v. Allen, 82 N.M. 373, 374, 482 P.2d 237, 238 (1971) (providing that the law in effect at the time of commission of the offense is controlling). However, after Defendant\u2019s case was finalized and while he was serving probation, Section 66-8-102 was amended several times before Defendant allegedly violated his probation on August 17, 2007. Even though Defendant was still serving probation, his case was not considered pending for purposes of our state constitutional provision that prohibits the Legislature from changing the rights or remedies of the parties to a pending case. See N.M. Const. art. IV, \u00a7 34 (providing that \u201c[n]o act of the [Legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case\u201d); State v. Druktenis, 2004-NMCA-032, \u00b6\u00b6 39-43, 135 N.M. 223, 86 P.3d 1050 (noting that a change in the law that takes effect while a defendant is serving probation is the applicable law for purposes of a subsequent probation revocation proceeding because the case was not pending for purposes of Article IV, Section 34 of the New Mexico Constitution). Accordingly, because Defendant allegedly violated his probation on August 17, 2007, the 2007 version of Section 66-8-102 was the applicable law for purposes of Defendant\u2019s probation revocation proceeding.\n{\u00b6 4} Although the parties and the district court relied on the 2004 version of Section 66-8-102, we nevertheless take it upon our own initiative to apply the 2007 version of the statute because the sentencing authority of the court is at issue. See State v. Hunter, 2001-NMCA-078, \u00b6 8, 131 N.M. 76, 33 P.3d 296 (noting that the district court\u2019s sentencing authority is a jurisdictional matter that can be considered for the first time on appeal); State v. McNeece, 82 N.M. 345, 345-46, 481 P.2d 707, 707-08 (Ct.App.1971) (noting that, although the parties did \u201cnot question which statute is the applicable one,\u201d the use of an inapplicable statute calls into question the jurisdiction of the sentencing court and may be raised sua sponte by the appellate court because the \u201c[ljack of jurisdiction at any stage of a proceeding is a controlling consideration to be resolved before going further\u201d (alteration in original) (internal quotation marks and citation omitted)); see also Smith v. City of Santa Fe, 2007-NMSC-055, \u00b6 10, 142 N.M. 786, 171 P.3d 300 (\u201c[I]t is incumbent upon the appellate court to raise jurisdiction questions sua sponte when the Court notices them.\u201d). While the relevant provisions of the 2004 and 2007 statutes are similar in many respects, there is one significant distinction under the circumstances of this case. In particular, Subsection (E) only applied to first-time DWI offenders. We note that, because of this distinction, the State could not have relied on that statute to deprive Defendant of credit for time served on probation because Defendant was a repeat DWI offender. Nevertheless, Subsection (S) of the 2007 statute contains the same provisions included in Subsection (E) of the 2004 version, but Subsection (S) of the 2007 statute is applicable to all levels of DWI offenders who violate probation \u2014 including Defendant.\nINTERPRETATION OF SECTION 66-8-102(S)\n{5} Having established the applicable statute, we next consider its effect de novo. See French-Hesch v. French-Williams, 2010-NMCA-008, \u00b6 4, 147 N.M. 620, 227 P.3d 110 (filed 2009) (\u201cThe interpretation of statutes is a question of law that we review de novo.\u201d). We read statutes harmoniously with each other whenever possible, State v. Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022, and we interpret statutes \u201cto facilitate and promote the [legislature\u2019s accomplishment of its purpose.\u201d State v. Rivera, 2004-NMSC-001, \u00b6 12, 134 N.M. 768, 82 P.3d 939 (filed 2003) (internal quotation marks and citation omitted). We do not construe statutes to result in absurdity or to defeat legislative intent. State v. Herrera, 86 N.M. 224, 226, 522 P.2d 76, 78 (1974). Instead, \u201c[w]e seek to give meaning to all parts of the statute, such that no portion is rendered surplusage or meaningless.\u201d Int\u2019l Ass\u2019n of Firefighters v. City of Carlsbad, 2009-NMCA-097, \u00b6 11, 147 N.M. 6, 216 P.3d 256, cert. denied, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360.\n{6} Section 66-8-102(S) provides as follows:\nWith respect to this section and notwithstanding any provision of law to the contrary, if an offender\u2019s sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation.\nFor ease of reference, we will refer to the foregoing provision as the no-credit provision. The Legislature\u2019s intent in Section 66-8-102(S) is apparent from the plain language \u2014 if a defendant violates the terms of probation, the court may impose any sentence that could have originally been imposed with no credit given for time served. See id.; see also Albuquerque Bernalillo County Water Util. Auth. v. N.M. Pub. Regulation Comm\u2019n, 2010-NMSC-013, \u00b6 52, 148 N.M. 21, 229 P.3d 494 (\u201cIn discerning the Legislature\u2019s intent, we are aided by classic canons of statutory construction, and [w]e look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.\u201d (alteration in original) (internal quotation marks and citation omitted)). The Legislature\u2019s inclusion of \u201cnotwithstanding any provision of law to the contrary\u201d in Section 66-8-102(S) indicates that the Legislature intended this bar to be applied, notwithstanding any provision' of law that might otherwise be read to allow a defendant credit for time served. In other words, if a defendant attempted to argue that credit should be given, the \u201cnotwithstanding\u201d language makes clear that the no-credit provision would prevail. In this case, Defendant was accused of violating his probation; therefore, the State argued for imposing a new sentence and maintained that, pursuant to Section 66-8-102, Defendant should not receive credit for time served on probation.\n{7} Generally, if a probation violation is established when there is a suspended sentence, \u201cthe court may continue the original probation, revoke the probation and either order a new probation ... or require the probationer to serve the balance of the sentence imposed or any lesser sentence.\u201d NMSA 1978, \u00a7 31-21-15(B) (1989). In determining the balance of the sentence, the defendant is entitled to credit for any time served on probation. See State v. Baca, 2005-NMCA-001, \u00b6 21, 136 N.M. 667, 104 P.3d 533 (filed 2004) (recognizing that \u201c[a] probationer whose sentence has been suspended is entitled to credit against his or her sentence for the time served on probation\u201d).\n{8} However, as noted above, even though the State filed its petition to revoke probation before Defendant\u2019s period of probation was set to expire, a hearing on the petition was not held until after the original period of probation had expired. NMSA 1978, Section 31-20-8 (1977) states that, when a period of suspension expires without revocation of a defendant\u2019s probation, \u201cthe defendant is relieved of any obligations imposed on him.\u201d The Legislature\u2019s intent in Section 31-20-8 is also apparent from the statute\u2019s plain language \u2014 if a defendant satisfies his probation period without revocation, he is relieved of further obligations. See Albuquerque Bernalillo County Water Util. Auth., 2010-NMSC-013, \u00b6 52, 148 N.M. 21, 229 P.3d 494 (stating that we look to the plain language of a statute when discerning legislative intent, giving words their ordinary meaning). In other words, the district court must hold a hearing before the expiration of the defendant\u2019s probation period, after which point it loses jurisdiction to do so. See State v. Katrina G., 2007-NMCA-048, \u00b6 17, 141 N.M. 501, 157 P.3d 66 (\u201cSection 31-20-8 clearly evinces the [Legislature's intent to require a hearing before the expiration of the probation period.\u201d). Had the Legislature intended to extend the district court\u2019s jurisdiction beyond a defendant\u2019s probation period, it certainly could have done so. Cf. id. (stating that, if the Legislature had wanted to draft a children\u2019s code statute with the same expiration of jurisdiction as seen in Section 31-20-8, it could have done so).\n{9} The State relies on the no-credit provision to argue that the ordinary jurisdictional limit imposed by Section 31-20-8 does not apply. The State emphasizes that the no-credit provision should be applied \u201cnotwithstanding any provision of law to the contrary.\u201d See \u00a7 66-8-102(S). The dissent similarly asserts that the \u201cnotwithstanding any provision of law to the contrary\u201d language indicates legislative intent to except DWI probation violators from the district court\u2019s basic jurisdictional prerequisite in Section 31-20-8. Dissent Op. \u00b6\u00b6 21-22. We are not persuaded that the Legislature intended the no-credit provision and its broad application to add to the jurisdiction of the district court.\n{10} We have previously interpreted Section 31-20-8 to mean that the district court loses jurisdiction to revoke probation once the probation period ends, even in eases in which the petition to revoke probation was filed before the probation period ends. See State v. Lara, 2000-NMCA-073, \u00b6\u00b6 3, 6-9, 129 N.M. 391, 9 P.3d 74 (stating that the statute is clear that the district court lacks jurisdiction to revoke probation after the period of revocation has expired, even though the motion for unsatisfactory discharge was filed before the expiration of the defendant\u2019s probationary term); see also Katrina G., 2007-NMCA-048, \u00b6 15, 141 N.M. 501, 157 P.3d 66 (reiterating that Section 31-20-8 mandates that, when the period of suspension expires without revocation, \u201cthe defendant shall be entitled to a certificate from the court so reciting such facts\u201d and stating that \u201cSection 31-20-8 sets forth an explicit deadline \u2014 the expiration of the period of suspension \u2014 by which the district court must revoke the suspension order\u201d (internal quotation marks and citation omitted)). When we read Section 31-20-8 and Section 66-8-102(S) harmoniously, and in light of our case law, the sentencing statute, Section 66-8-102(S), does not bear on the jurisdictional statute, Section 31-20-8. Rather, the opposite is true \u2014 as long as the district court has jurisdiction to proceed with a probation revocation proceeding, it shall apply the no-credit provision when applicable, notwithstanding any law to the contrary.\n{11} Although we acknowledge the dissent\u2019s concern that, when a probation violation occurs near the end of a probation period, it might be more difficult to impose the no-credit provision in Section 66-8-102(S), see Dissent Op. \u00b6 24, it is not for the courts to override the policy of the Legislature. See Lara, 2000-NMCA-073, \u00b6\u00b6 3, 6-9, 129 N.M. 391, 9 P.3d 74 (stating that the district court loses jurisdiction once the probation period has expired); see also State ex rel. Coll v. Johnson, 1999-NMSC-036, \u00b6 24, 128 N.M. 154, 990 P.2d 1277 (stating that it is not within the province of our Supreme Court to \u201cquestion the wisdom, policy, or justness of legislation enacted by our Legislature\u201d (internal quotation marks and citation omitted)). To read the statutes in the manner that the State and the dissent advocate \u2014 allowing the district court to apply the no-credit provision after Defendant\u2019s probation period had expired \u2014 would not be a harmonious reading of the statutes and it would effectively render the Legislature\u2019s statement in Section 31-20-8, concerning the district court\u2019s jurisdiction, meaningless. We will not read the no-credit provision in this manner. See Int\u2019l Ass\u2019n of Firefighters, 2009-NMCA-097, \u00b6 11, 147 N.M. 6, 216 P.3d 256 (stating that \u201c[w]e seek to give meaning to all parts of the statute, such that no portion is rendered surplusage or meaningless\u201d).\n{12} We agree with Defendant and the district court that, even if the no-credit provision could be used to impose any sentence that could have been originally imposed and to deprive him of credit for time served on probation, it was too late to do so because his original period of probation had already expired. The district court did not err in determining that it had no jurisdiction.\n{13} We lastly respond to the dissent\u2019s argument that Section 31-21-15(0), a statute tolling the probation period while the probationer is a fugitive from justice, gives guidance regarding the Legislature\u2019s intent to except DWI probationers from the jurisdictional limit of Section 31-20-8. Dissent Op. \u00b6 23. We agree with the dissent that, in Section 31-21-15(0), \u201cthe Legislature intended to ensure that probationers could not defeat the district court\u2019s authority to revoke probation by absconding from the jurisdiction.\u201d Dissent Op. \u00b6 23; State v. Apache, 104 N.M. 290, 291, 720 P.2d 709, 710 (Ct.App.1986). However, we disagree that the Legislature\u2019s intent to toll the probation period with regard to fugitives extends to DWI probation violators who are not fugitives.\n{14} Section 31-21-15(C) states,\n[i]f it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that he has violated the provisions of his release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation.\nAs we stated in Apache, Section 31-21-15(0 tolls the probation period while a probationer has absconded from the jurisdiction so that the probationer cannot defeat the district court\u2019s jurisdiction merely by remaining a fugitive from justice until the probation period has run. Apache, 104 N.M. at 291, 720 P.2d at 710. In other words, the district court retains jurisdiction over a probationer who has voluntarily become a fugitive based upon the express language in Section 31-21-15(C). Section 66-8-102(S) does not react to a defendant\u2019s choice to abscond from justice, but, instead, prohibits a court from granting credit for time served to DWI offenders, even if they would otherwise be granted credit for time served. The circumstances are not analogous.\n{15} In addition, we do not believe, as stated above, that the Legislature intended for the district court to first decide whether a DWI defendant is entitled to credit served, pursuant to Section 66 \u2014 8\u2014102(S), before it decides whether it has jurisdiction at all, because such an interpretation would render the jurisdictional limitation of Section 31-20-8 meaningless and would not be a harmonious reading of the statutes. See Int\u2019l Ass\u2019n of Firefighters, 2009-NMCA-097, \u00b6 11, 147 N.M. 6, 216 P.3d 256 (seeking to give meaning to all parts of the statute); State v. Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (reading statutes harmoniously with each other whenever possible). And, again, the Legislature could have expressly tolled the probation period in Section 66-8-102(S), as it did with Section 31-21-15(0, had it so desired. See City of Roswell v. Smith, 2006-NMCA-040, \u00b6 12, 139 N.M. 381, 133 P.3d 271 (\u201c[T]he [Legislature could easily have included additional language in a statute had it desired to do so.\u201d (internal quotation marks and citation omitted)).\nCONCLUSION\n{16} For the reasons stated in this opinion, we affirm the district court\u2019s order of dismissal.\n{17} IT IS SO ORDERED.\nI CONCUR: RODERICK T. KENNEDY, Judge.\nLINDA M. VANZI, Judge (dissenting).", "type": "majority", "author": "WECHSLER, Judge." }, { "text": "VANZI, Judge\n(dissenting).\n{18} I do not agree with the majority that the district court lacked jurisdiction in this case to decide whether to revoke Defendant\u2019s probation and order the forfeiture of probation credit. I would reverse the district court\u2019s order of dismissal and remand for further proceedings on the State\u2019s amended petition to revoke probation.\n{19} As an initial matter, I do not take issue with the majority\u2019s application of the 2007 version of Section 66-8-102, as I believe this was the law at the time Defendant allegedly violated his probation. Majority Op. \u00b6 4. I also do not disagree with the general premise that within the context of an ordinary probation revocation proceeding, our case law provides that the district court lacks jurisdiction to revoke probation after the probation period ends, even if the petition to revoke probation was filed before the probation period ends. See \u00a7 31-20-8 (stating that \u201c[wjhenever the period of suspension expires without revocation of the order, the defendant is relieved of any obligations imposed on him\u201d); Lara, 2000-NMCA-073, \u00b6\u00b6 6-8, 129 N.M. 391, 9 P.3d 74; Majority Op. \u00b6 8.\n{20} Applying Section 31-20-8 to this case, the majority holds that because the original term of probation had expired by the time of the probation revocation hearing, the district court lost jurisdiction over Defendant. For the reasons that follow, however, I would conclude that the ordinary jurisdictional limit imposed by Section 31-20-8 does not apply in DWI eases of this nature.\n{21} The jurisdictional limitation of Section 31-20-8 is based on the presumption that a probationer is ordinarily entitled to credit for time served on probation even if probation is subsequently revoked. The no-credit provision in Section 66-8-102(S), however, is to be applied \u201cnotwithstanding any provision of law to the contrary,\u201d and it prohibits giving credit for time served on probation to DWI offenders who violate their probation. Section 66-8-102(S). Given this clear language, it appears that the Legislature intended that our district courts first determine whether or not a probation violator is entitled to credit for time served on probation. See Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (\u201cWhenever possible, we must read different [statutes] as harmonious instead of as contradicting one another.\u201d (Internal quotation marks and citation omitted)). After making that threshold determination, the district court can then decide whether it still has authority under Section 31-20-8 to revoke probation.\n{22} In recognizing the persistent problem of repeat DWI offenders, the Legislature has plainly chosen to treat DWI probation violators differently than others who violate their conditions of probation. Specifically, by enacting Section 66-8-102(S), the Legislature has determined that DWI offenders who violate probation will be deprived of probation credit \u201cnotwithstanding any provision of law to the contrary.\u201d Section 66-8-102(S). I believe it would frustrate the Legislature\u2019s intent if a DWI offender who violates probation effectively receives credit for time served on probation for purposes of determining whether the jurisdictional bar of Section 31-20-8 applies. See Rivera, 2004-NMSC-001, \u00b6 12, 134 N.M. 768, 82 P.3d 939 (recognizing that statutes must be interpreted \u201cto facilitate and promote the [L]egislature\u2019s accomplishment of its purpose\u201d (internal quotation marks and citation omitted)). I conclude that there should be no expiration of a DWI probationary sentence for purposes of triggering the jurisdictional limitation of Section 31-20-8 until the district court has first had the opportunity to decide whether a defendant is entitled to credit for time served on probation.\n{23} In reaching the conclusion that there is no requirement that the revocation hearing be held before the original sentence expires, we can find guidance from those cases in which a probationer is denied credit while a fugitive from justice. See \u00a7 31-21-15(0 (providing that the court may determine whether a probationer was a fugitive from justice and deny probation credit on that basis); see also State v. Kenneman, 98 N.M. 794, 798, 653 P.2d 170, 174 (Ct.App.1982) (acknowledging that \u201call time served on probation shall be credited unless the defendant is a fugitive\u201d). We have previously recognized that the Legislature intended to ensure that probationers could not defeat the district court\u2019s authority to revoke probation by absconding from the jurisdiction, and have held that in those cases, the probationary period is tolled while the probationer is a fugitive from justice. See Apache, 104 N.M. at 291, 720 P.2d at 710 (tolling the probationary period while the probationer is a fugitive from justice). Thus, even if a fugitive is not brought before the court before the expiration of the original term of probation, the court may nevertheless deny the fugitive credit for that period of time that the probationer was a fugitive from justice. Id. at 292, 720 P.2d at 711.\n{24} Similarly, by enacting the no-eredit provision that denies a DWI offender probation credit upon a probation violation, the Legislature has effectively precluded a DWI offender from avoiding the consequences of a probation violation if the revocation hearing is not held before the original sentence expires since expiration of the sentence depends on credit for time served on probation. To conclude otherwise would frustrate legislative intent and lead to absurd results. See Herrera, 86 N.M. at 226, 522 P.2d at 78 (\u201cWe will not construe statutes to achieve an absurd result or to defeat the intended object of the [Legislature.\u201d). For example, if a DWI probationer violates probation near the end of the probationary period, it would be nearly impossible to effectuate the Legislature\u2019s intent to deprive that offender of credit for time served on probation because a hearing most likely could not be set before expiration of the original sentence. In contrast, a DWI offender who violates probation earlier in the probationary term would be more likely to have probation revoked and probation credit forfeited before the original sentence expires. Given these two very possible scenarios, I respectfully disagree with the majority\u2019s decision and can find no reason why the Legislature would have intended such disparate results. .\n{25} Accordingly, to give effect to legislative intent, I believe that the no-credit provision should be applied in a manner similar to the fugitive from justice provision. That is, when a DWI offender is accused of violating probation, the probationary period is tolled until the district court can hold a hearing to determine whether the probationer indeed violated probation and has thereby forfeited credit for time previously served on probation. That said, any petition to revoke probation nonetheless must be filed prior to expiration of the period of the probation under the original sentence to avoid the jurisdictional bar of Section 31-20-8 and to assure the defendant of some degree finality. Applied to the circumstances of this case, I conclude that the district court did not lose jurisdiction to consider the State\u2019s petition to revoke probation because the court first had to determine whether or not Defendant violated probation and thereby forfeited any credit for time served on probation. I would reverse the district court\u2019s order of dismissal, which was based on the mistaken belief that the court no longer retained jurisdiction over Defendant for purposes of revoking his probation. I respectfully dissent.", "type": "dissent", "author": "VANZI, Judge" } ], "attorneys": [ "Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellant.", "Hugh W. Dangler, Chief Public Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2010-NMCA-095\n241 P.3d 621\nSTATE of New Mexico, Plaintiff-Appellant, v. Jose Alfredo ORDUNEZ, Defendant-Appellee.\nNo. 28,297.\nCourt of Appeals of New Mexico.\nAug. 9, 2010.\nCertiorari Granted, Oct. 18, 2010,\nNo. 32,589.\nGary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellant.\nHugh W. Dangler, Chief Public Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Appellee." }, "file_name": "0620-01", "first_page_order": 654, "last_page_order": 661 }