{
  "id": 1577297,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. John DOE, a Child, Defendant-Appellant",
  "name_abbreviation": "State v. Doe",
  "decision_date": "1981-07-21",
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  "last_updated": "2023-07-14T16:25:27.930698+00:00",
  "provenance": {
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  "casebody": {
    "judges": [
      "HERNANDEZ, C. J., and LOPEZ, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. John DOE, a Child, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nThe child appeals an order transferring him to the district court for prosecution as an adult. He contends the motion to transfer was untimely filed and that the trial court erred in finding that he was not amenable to rehabilitation. We affirm.\nTransfer Motion\nOn December 19, 1980, a petition was filed alleging delinquency for the acts of armed robbery of a store, escape from custody of a peace officer, and resisting an officer. On the same day, the child was ordered detained. The detention order recited that the public defender was appointed to represent him and that a motion requesting that he be tried as an adult would be forthcoming.\nOn December 30, 1980, an amended petition was filed. The amended petition was almost verbatim as the original\u2014the only difference being a different victim\u2019s name in the armed robbery count. Simultaneously, a motion to transfer the child to district court was filed. The transfer hearing was held January 21, 1981.\nThe child relies on State v. Doe, 94 N.M. 446, 612 P.2d 238 (Ct.App.1980), cert. not applied for, for the proposition that a motion to transfer under N.M. Children\u2019s Court R. 43, N.M.S.A.1978 (Repl.1980), is a \u201cpreadjudicatory motion\u201d which must be filed within ten days under N.M. Children\u2019s Court R. 14, N.M.S.A.1978 (Repl.1980). That statement in Headnote (3) at page 449 is wrong and is to be disregarded in the future. The remainder of the opinion stands. For three reasons, we now hold that Rule 14 does not apply to the filing of motions to transfer.\nFirst, preadjudicatory motions may be analogized to \u201cpretrial motions.\u201d See, Committee Commentary to Rule 14 and State v. Doe, 93 N.M. 143, 597 P.2d 1183 (Ct.App.1979). The concept of pretrial motions traditionally embodies rulings that are conducive to the orderly flow of trials. Such motions contemplate a subsequent trial, just as preadjudicatory motions contemplate a subsequent hearing on the merits of a petition. A transfer motion is filed with the expectation that there will be no adjudication in the Children\u2019s Court.\nSecond, the fact that Rule 43 requires a transfer motion to be made prior to the adjudicatory hearing does not make the motion a preadjudicatory motion for purposes of Rule 14. The chronology involved is premised on the prohibition against double jeopardy. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); State v. Doe, 91 N.M. 506, 576 P.2d 1137 (Ct.App. 1978).\nThird, neither Rule 43 nor \u00a7 32-1-30, N.M.S.A.1978 (discretionary transfer by the Children\u2019s Court) indicate that such motions are to be considered as actions under Rule 14. Neither the rule nor the statute provides a time limit for filing motions to transfer.\nBecause a transfer motion is not a Rule 14 motion and because no time limit for filing a transfer motion has been provided, we construe a limit consistent with the philosophy of the Children\u2019s Court Rules. We hold that reasonableness is the test when there is an issue concerning the timeliness of the filing of a motion to transfer. See, State v. Doe, 94 N.M. 446, 612 P.2d 238, supra.\nAt the hearing below, the trial court found that there were legitimate reasons for filing the amended petition and explicitly ruled the refiling \u201creasonable.\u201d The detention order put counsel on notice that a transfer motion would be forthcoming. Counsel did not claim lack of adequate preparation time, surprise, or prejudice, nor was a continuance requested. Under these circumstances, we find no abuse of discretion in the court\u2019s refusal to dismiss the transfer motion. The transfer hearing was held within the proper time limitation. Contrast, State v. Doe, 94 N.M. 466, 612 P.2d 238, supra.\nAmenable to Rehabilitation\nThe child states this point as follows:\nThe trial court erred in finding the delinquent not amenable to rehabilitation. The court incorrectly required the defense to carry the burden of persuasion and affirmatively prove the child in fact would benefit from extant treatment with New Mexico juvenile facilities. Future actions are simply not predictable. The correct burden of proof, if at all upon the defendant-appellant, is proof that the child could well benefit from such treatment.\nFirst, the transcript does not support this contention. The order of proceedings was the calling of the witnesses by the State to show that the child was not amenable to treatment in any New Mexico facilities, followed by the defense trying to show the contrary.\nThe record reflects an agonizing attempt by the trial judge to identify what might be the most salutory path to take with the child. In State v. Doe, 94 N.M. 446, 612 P.2d 238, supra, we commended the Children\u2019s Court for its consideration of the best interest of the child when considering the motion to transfer. Based on the record in this case, we do no less. We find no merit to the claim that the Children\u2019s Court did not use the proper test in making his decision to transfer. From the testimony, the court could have found \u201creasonable grounds to believe that . . . the child is not amenable to treatment or rehabilitation as a child through available facilities.\u201d Contrast, State v. Doe, 93 N.M. 481, 601 P.2d 451 (Ct. App.1979).\nIn light of the foregoing, we affirm.\nIT IS SO ORDERED.\nHERNANDEZ, C. J., and LOPEZ, J., concur.",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "Michael R. Gernsheimer, Granat, Gernsheimer & Hartmann, P. A., Santa Fe, for appellant.",
      "Jeff Bingaman, Atty. Gen., Carol Vigil, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "632 P.2d 750\nSTATE of New Mexico, Plaintiff-Appellee, v. John DOE, a Child, Defendant-Appellant.\nNo. 5052.\nCourt of Appeals of New Mexico.\nJuly 21, 1981.\nMichael R. Gernsheimer, Granat, Gernsheimer & Hartmann, P. A., Santa Fe, for appellant.\nJeff Bingaman, Atty. Gen., Carol Vigil, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0515-01",
  "first_page_order": 543,
  "last_page_order": 545
}