{
  "id": 2863593,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. James Robert HOWELL, Defendant-Appellant",
  "name_abbreviation": "State v. Howell",
  "decision_date": "1976-02-10",
  "docket_number": "No. 2068",
  "first_page": "10",
  "last_page": "11",
  "citations": [
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  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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      "year": 1967,
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      "cite": "86 N.M. 382",
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      "reporter": "N.M.",
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  "last_updated": "2023-07-14T20:56:52.908635+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WOOD, C. J., and HERNANDEZ, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. James Robert HOWELL, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nDefendant appeals his conviction of aggravated assault \u00a7 40A-3-2, N.M.S.A. 1953 (2d Repl.Vol. 6, 1972) and sodomy \u00a7 40A-9-6, N.M.S.A.1953 (2d Repl.Vol. 6, 1972), subsequently repealed by Laws 1975, ch. 109 \u00a7 8, after a transfer pursuant to \u00a7 13-14-27, N.M.S.A.1953 (Repl.Vol. 3, 1968, Supp.1973) asserting two grounds for reversal: (1) that the trial court should have granted his motion to dismiss pursuant to Rule 37 of R.Cr.P. \u00a7 41-23-37(b), N.M.S.A.1953 (2d Repl.Vol. 6, 1972, Supp. 1975) and (2) that the sodomy statute is unconstitutional.\nMotion to Dismiss\nThe following is a chronological sequence of events leading up to the trial:\nOn September 21, 1974, defendant was arrested for crimes that are in issue in this appeal. At that time the defendant was sixteen years old. On September 24, 1974, a Children\u2019s Court Petition was filed against defendant. On the same day an order to continue defendant\u2019s detention and a motion to transfer the defendant to the district court for prosecution were filed. The hearing on the motion to transfer was set for October 7, 1974. The court granted the motion to transfer on November 11, 1974. On November 15, 1974, an information was filed against the defendant in the district court. On March 31, 1975, the defendant moved to dismiss with prejudice under Rule 37 because more than six-months had elapsed since the original petition had been filed in Children\u2019s Court.' The motion was denied. On April 1, 1975, the defendant filed a Petition for Writ of Prohibition in the State Supreme Court on the same grounds as the above motion. The petition for writ was denied (S.Ct.No. 10423). Defendant\u2019s trial was held on April 9, 1975.\nThis issue raises two questions: (1) whether the Supreme Court\u2019s denial of the Writ of Prohibition precludes review of the trial court\u2019s denial of the motion to dismiss and (2) whether the six-month rule should run from the time of filing of the Children\u2019s Court Petition.\nDoes the Supreme Court\u2019s denial of a Writ of Prohibition preclude our review of the trial court\u2019s denial of defendant\u2019s motion to dismiss? Our answer is in the negative. The situation here is different than those where we have been asked to review a Supreme Court Order granting an extension pursuant to Rule 37. See State v. Sedillo, 86 N.M. 382, 524 P.2d 998 (Ct.App.1974). State ex reL Townsend v. Coiirt of Appeals, 78 N.M. 71, 428 P.2d 473 (1967), indicates that a denial of a Writ of Prohibition may be for a variety of reasons, one of which would be that there is not an absence of jurisdiction. Thus, the denial of a Writ of Prohibition has no specific finality.\nWe are confronted with the specific issue, under the foregoing sequence of facts, of when does the time start to run for a determination of the six-months pursuant to Rule 37, supra.\nSection 13-14-30, N.M.S.A.1953 (Repl.Vol. 3, 1968, Supp.1973) states in part that a judgment in any proceedings on a petition under the Children\u2019s Code shall not be deemed to be a conviction of a crime. It would seem then to follow that the period of time spent prior to the actual transfer and the filing of the criminal information would not count. This is further buttressed by the language of Subsection (e) of Rule 37 which defines \u201cin custody\u201d as \u201ccustody on the charge contained in the information or indictment.\u201d Subsection (b) states that all trials shall commence within six-months after the filing of the information, indictment or the date of arrest whichever is later. Arrest, of course, must naturally be on the criminal charge for which the individual is being tried in district court. See Subsection (d).\nFrom the foregoing it is obvious that the time limitation set forth in Rule 37 dictates that the time started running upon the filing of the information.\nSodomy Statute\nThe majority of this panel abides by the decisions of this court prior to State v. Elliott, 88 N.M. 187, 539 P.2d 207 (Ct.App.1975).\nAffirmed.\nIt is so ordered.\nWOOD, C. J., and HERNANDEZ, J., concur.",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "Toney Anaya, Atty. Gen., Ralph W. Muxlow, II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.",
      "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Gerald Chakerian, Asst. Appellate Defender, Santa Fe, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "546 P.2d 858\nSTATE of New Mexico, Plaintiff-Appellee, v. James Robert HOWELL, Defendant-Appellant.\nNo. 2068.\nCourt of Appeals of New Mexico.\nFeb. 10, 1976.\nToney Anaya, Atty. Gen., Ralph W. Muxlow, II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Gerald Chakerian, Asst. Appellate Defender, Santa Fe, for defendant-appellant."
  },
  "file_name": "0010-01",
  "first_page_order": 46,
  "last_page_order": 47
}