State v. Padilla

534 P.3d 223

STATE of New Mexico, Plaintiff-Appellee,

v.Demesia PADILLA, Defendant-Appellant.

No. A-1-CA-40038

Court of Appeals of New Mexico.

Filing Date: March 31, 2023

Certiorari Denied, July 10, 2023, No. S-1-SC-39897

Raúl Torrez, Attorney General, Santa Fe, NM, Walter Hart, Assistant Attorney General, Albuquerque, NM, for Appellee

Kennedy, Hernandez & Associates, P.C., Paul J. Kennedy, Jessica M. Hernandez, Elizabeth A. Harrison, Albuquerque, NM, for Appellant

WRAY, Judge.

{1} Following a jury trial, Defendant Demesia Padilla was convicted of two second degree felonies, embezzlement (over $20,000), contrary to NMSA 1978, Section 30-16-8 (2007), and computer access with intent to defraud or embezzle (over $20,000), contrary to NMSA 1978, Section 30-45-3 (2006). This appeal considers whether when a timely filed criminal complaint is dismissed without prejudice for improper venue, the charges may be refiled in the proper venue after the statute of limitations has expired. Our Legislature has provided for the tolling of criminal statutes of limitation in certain circumstances. See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue charges in the present case. We therefore vacate Defendant's convictions.

BACKGROUND

{2} The parties do not dispute the relevant procedural facts. On June 28, 2018, the State charged Defendant by criminal complaint (the Complaint) in the First Judicial District Court in Santa Fe County on one count each of embezzlement and computer access with intent to defraud or embezzle. Defendant filed an objection to the venue on November 29, 2018, and a related motion to dismiss on April 25, 2019. On June 11, 2019, the First Judicial District Court granted Defendant's motion to dismiss both counts without prejudice for improper venue.

{3} Almost two months later, on August 1, 2019, a grand jury indicted Defendant in the present case (the Indictment), on the same charges in the Thirteenth Judicial District Court in Sandoval County. The criminal conduct alleged for both second degree felony counts occurred "between December 19, 2011 and January 22, 2013." As a result, the six-year limitation period expired on January 23, 2019. See NMSA 1978, § 30-1-8(A) (2009, amended 2022)¹ (establishing a six-year statute of limitation for second degree felonies). On August 22, 2019, Defendant moved to dismiss both charges in the present case because the statute of limitation had expired. The State responded in relevant part that under State v. Martinez , 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, Section 30-1-9 is not the exclusive mechanism for tolling criminal statutes of limitation.

{4} The district court agreed with the State's interpretation of Martinez and denied Defendant's motion but included in the order language for interlocutory appeal to this Court. After this Court denied Defendant's application for interlocutory appeal, Defendant was tried and found guilty on both charges. Defendant appeals and first argues that (1) under the circumstances of the present case, Section 30-1-9 did not toll the statute of limitation; and (2) the Legislature intended for Section 30-1-9 to govern the tolling of criminal statutes of limitation. For the reasons that follow, we agree with Defendant that the statute of limitation expired, and because we vacate Defendant's convictions on that basis, we do not address Defendant's remaining arguments on appeal.

DISCUSSION

{5} Because the relevant underlying facts are not in dispute, we review de novo the district court's application of the law to the facts. See State v. Collier , 2013-NMSC-015, ¶ 29, 301 P.3d 370 ("When facts relevant to a statute of limitations issue are not in dispute, the Court reviews de novo whether the district court correctly applied the law to the undisputed facts." (internal quotation marks and citation omitted)); State v. Hill , 2008-NMCA-117, ¶ 7, 144 N.M. 775, 192 P.3d 770 (considering on appeal "whether the district court correctly applied the law to the facts"). "Our primary goal is to ascertain and give effect to the intent of the Legislature." State v. Morales , 2010-NMSC-026, ¶ 6, 148 N.M. 305, 236 P.3d 24 (internal quotation marks and citation omitted). We first briefly review the nature of criminal statutes of limitation and tolling statutes in order to provide context for the State's argument that "common law"—or nonstatutory—tolling must fill a gap that Section 30-1-9 left open.

I. Statutes of Limitation and Tolling Statutes

{6} Generally, "[c]riminal statutes of limitation represent legislative assessments of relative interests of the [s]tate and the defendant in administering and receiving justice; they are made for the repose of society and the protection of those who may (during the limitation) have lost their means of defen[s]e." Morales , 2010-NMSC-026, ¶ 10, 148 N.M. 305, 236 P.3d 24 (omission, internal quotation marks, and citation omitted); see also State v. Trevizo , 2011-NMCA-069, ¶¶ 5-7, 150 N.M. 158, 257 P.3d 978 (stating that the criminal statute of limitation is "statutory in nature"). For a criminal defendant, unlike a civil litigant, the statute of limitations is a substantive right. See State v. Kerby , 2007-NMSC-014, ¶ 18, 141 N.M. 413, 156 P.3d 704 (determining for the purposes of waiver "that the statute of limitations is a substantive right" of a criminal defendant); Morales , 2010-NMSC-026, ¶ 13, 148 N.M. 305, 236 P.3d 24 (distinguishing between criminal and civil limitation periods and observing that criminal statutes of limitation periods "are ‘to be liberally construed in favor of a defendant because their purpose is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the [L]egislature has decided to punish by criminal sanctions’ " (quoting Kerby , 2007-NMSC-014, ¶ 13, 141 N.M. 413, 156 P.3d 704 )). As we have noted, the convictions on appeal are both second degree felonies. See § 30-16-8(F) (categorizing a charge of embezzlement over $20,000 as a second degree felony); see also § 30-45-3(E) (categorizing a charge of computer access with intent to defraud or embezzle over $20,000 as a second degree felony). The Legislature established a six-year statute of limitation for second degree felonies. Section 30-1-8(A). The question in the present case is whether a limitation period like that contained in Section 30-1-8(A) can be "tolled."

{7} A tolling statute is defined as "a law that interrupts the running of a statute of limitations in certain situations." See Hill , 2008-NMCA-117, ¶ 9, 144 N.M. 775, 192 P.3d 770 (alteration, internal quotation marks, and citation omitted). In the context of nonstatutory tolling and some tolling statutes, the filing of a timely complaint stops the statute of limitation from running and in the event that the complaint is subsequently dismissed, a new complaint may be filed within the time that was remaining on the limitation period. See, e.g. , Bracken v. Yates Petroleum Corp. , 1988-NMSC-072, ¶¶ 10, 12-13, 107 N.M. 463, 760 P.2d 155 (holding that a civil limitation period was "satisfied" by a timely-filed complaint because "[t]he filing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure" and on remand, providing that "the plaintiff shall have the remainder of the one-year statute of limitations ... in which to file her complaint in a proper venue" (internal quotation marks and citation omitted)); United States v. Grady , 544 F.2d 598, 601 (2d Cir. 1976) (explaining "the interplay of an indictment with a statute of limitations" stating that "[o]nce an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment. ... The statute begins to run again on those charges only if the indictment is dismissed, and the [g]overnment must then reindict before the statute runs out or" within six months as provided by 18 U.S.C. § 3288² if it applies, "whichever is later, in order not to be time-barred" (citations omitted)). Section 30-1-9(B) is an example of statutory tolling. Broadly, Section 30-1-9(B) permits the State, under some circumstances, to exclude periods of time from the running of the limitation period. Because the parties dispute how and whether Section 30-1-9(B) operates in the present case, we consider its terms.

{8} Section 30-1-9(B) applies as follows:

B. When

(1) an indictment, information or complaint is lost, mislaid or destroyed;

(2) the judgment is arrested;

(3) the indictment, information or complaint is quashed, for any defect or reason; or (4) the prosecution is dismissed because of variance between the allegations of the indictment, information or complaint and the evidence; and a new indictment, information or complaint is thereafter presented, the time elapsing between the preferring³ of the first indictment, information or complaint and the subsequent indictment, information or complaint shall not be included in computing the period limited for the prosecution of the crime last charged; provided that the crime last charged is based upon and grows out of the same transaction upon which the original indictment, information or complaint was founded, and the subsequent indictment, information or complaint is brought within five years from the date of the alleged commission of the original crime.

Section 30-1-9(B)(4) contains the only directly stated tolling language within the statute and expresses that under the previously listed circumstances for dismissing a prosecution, see § 30-1-9(B)(1)-(4), if a new charging document is later presented, "the time elapsing between the preferring of the first indictment, information or complaint and the subsequent indictment, information or complaint...