June 28, 2011 – State of New Mexico v. Wayne Bent, No. 29,227

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 28, 2011

NO. 29,227

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

WAYNE BENT,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF UNION COUNTY
Gerald E. Baca, District Judge (by designation)

Gary K. King, Attomey General
Nicole Beder, Assistant Attomey General
Santa Fe, NM

for Appellee

Law Works L.L.C.
John A. McCall

Albuquerque, NM

for Appellant

OPINION
KENNEDY, Judge.
{1} 	Defendant stands convicted of various counts of criminal sexual contact of a
minor and contributing to the delinquency of a minor as a result of which he was
sentenced to prison. Of the many issues he raises on appeal, one defect in the grand
jury proceedings deprives the district court of its jurisdiction and is, accordingly,
dispositive of all other issues.
{2} 	Defendant was indicted by a grand jury, which was convened on October 3,
2007, and whose statutory term would have ended on January 4, 2008, but for an order
extending the statutory term issued verbally by a district judge. Defendant’s case was
presented to the grand jury on May 20, 2008. 	Since NMSA 1978, Section 31-6-1
(1983) provides that a “grand jury shall serve for a period of no longer than three
months[,]” we hold that this statutory term is a mandatory limitation on the grand
jury’s jurisdiction. An indictment returned after the grand jury’s term expires is void
ab initio. Therefore, Defendant’s motion to quash the indictment should have been
granted, as the grand jury was without legal authority to consider his case and return
an indictment. As a result, the indictment issued by the grand jury was void, and the
district court did not have jurisdiction to proceed with the trial in this case.
{3} 	Because our decision renders the proceedings in this matter a nullity ab initio

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for lack of jurisdiction, we need not address the issues related to motions brought by
Defendant concerning the State’s manner of conducting the grand jury proceedings,
nor matters raised at trial. See State v. Chacon, 62 N.M. 291, 293-94, 309 P.2d 230,
231-32 (1957) (holding that a challenge against the court’s jurisdiction for lack of an
accusation in the form required by the New Mexico Constitution was dispositive of
the appeal); People v. Williams, 535 N.E.2d 275, 279 (N.Y. 1989) (concluding that
because a fundamental defect in the grand jury proceeding rendered it a nullity, there
was no need to reach the defendant’s contentions regarding other claimed defects
arising from the conduct of the state). We reverse the district court and remand this
case for entry of an order quashing the grand jury indictment, dismissing this case
without prejudice, and discharging Defendant.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
{4} 	Defendant, the apparent leader of a religious community in northeastern New
Mexico, was charged with various crimes centering around what he maintained were
religious practices intended to be cleansing ceremonies. The State argued that such
practices amounted to criminal sexual contact of minors and contributing to the
minors’ delinquency. The case was presented to the grand jury of Union County on
May 20, 2008. Defendant was indicted and arraigned on the indictment.
{5} 	There is no dispute in this case as to the facts pertaining to this issue. The grand

3
jury that heard Defendant’s case had been convened on October 3, 2007. An almost
indecipherable pleading bearing a file stamp from that date appears to have summoned
grand jurors for service on November 12, 2007. 	At the hearing on Defendant’s
motion to quash the indictment, the prosecutor stated to the court that the grand jury’s
term had been verbally extended “[sua sponte]” by District Judge Sam Sanchez
without the entry of any written order. There is no documentary evidence concerning
such an extension, nor does the record contain any explanation as to why the
extension was made. We are left to rely on assertions by counsel and the district court
that it happened. 	The parties agree that the grand jury only sat twice, once in
November, and again on May 20, 2008. The date in May was beyond three months
past the date of any previous grand jury activity.
{6} 	Defendant’s motion to quash the indictment was heard on August 12, 2008,
alleging that, under NMSA 1978, Section 31-6-3(A) (2003), the grand jury was not
selected and seated in accordance with the law. Specifically, Defendant alleged that
the grand jury had been convened on October 3, 2007, and had convened again on
May 20, 2008, in violation of Section 31-6-1, which mandates a maximum period of
grand jury service of “no longer than three months.”
{7} 	The district court responded to the portion of the motion related to the grand
jury term by stating that the statute “doesn’t provide for any relief if there’s a

4
violation.” Defendant responded that the remedy for an illegal indictment is that it be
“quashed[,] and a new [g]rand [j]ury seated properly.” 	The district court read the
annotation to the statute and noted that the annotation indicated that Sections 31-6-1
and 31-6-2 were “merely directory, not mandatory” pursuant to State v. Garcia, 110
N.M. 419, 796 P.2d 1115 (Ct. App. 1990), and State v. Apodaca, 105 N.M. 650, 735
P.2d 1156 (Ct. App. 1987) (overruled on other grounds by Garcia, 110 N.M. 419, 796
P.2d 1115). 	The court further inquired as to whether a showing of prejudice to
Defendant was required before an indictment may be quashed. Defendant responded
that the indictment was deficient on its face and should be quashed because the grand
jury exceeded its term, the State denied discovery, and the State did not present
exculpatory evidence to the grand jury that had been requested by Defendant. The
State responded that the district court had already noted that the statute was only
advisory in nature. The State then asserted, without citation to the record, that Judge
Sanchez had explained to the grand jury that he extended their tenure sua sponte for
an additional three months without issuing a written order on the record. 	The
prosecutor, without having them admitted, showed to the court, certified pay records
indicating the grand jury served on two days.
{8} 	The State was aware and informed the district court of case law indicating that
an indictment handed down by a grand jury after the expiration of its statutory period

5
would in some states render the indictment “void [ab initio].” The State mentioned
that there are such things as “de facto” grand juries that are allowed to proceed past
their terms. At the end of the argument, the district court ruled:
With respect to the first issue, that the [g]rand [j]ury was
[empaneled] or served beyond the three[-]months time period as
provided by Section 31-6-1, it appears that within that section, there is
no remedy provided for a jury that serves longer than its term. And at
this point in time, there’s been no prejudice shown by . . . Defendant
with respect to that issue by itself. 	And so, the motion to quash with
respect to that violation or apparent violation of the statute will be
dismissed.
What’s more is that even in the constitutional section, Section 14,
dealing with the [g]rand [j]ury[,] the right to a [g]rand [j]ury and the
convening of a [g]rand [j]ury, . . . there is no time limitation for the
service of a [g]rand [j]ury. And then . . . Apodaca is a case that tells us
that this section, as well as Section 31-6-2 is directory and not
mandatory. I will state though that Apodaca dealt with not this precise
issue, but the issue of the quashing of an indictment based on the
discharge of an individual grand juror by the [d]istrict [a]ttorney and
replacement of him by an alternate to serve on that case. . . . [E]ven in
that situation, . . . which is pretty clearly set out what the process is in the
statute, . . . the Court of Appeals has said that that’s discretionary or
directory and not mandatory. For those reasons, that issue is denied.
II. 	DISCUSSION
{9} 	We review the construction of statutes and the legal requirements for convening
and maintaining a grand jury as a matter of law under a de novo standard. State v.
Isaac M., 2001-NMCA-088, ¶ 4, 131 N.M. 235, 34 P.3d 624.
{10} 	The New Mexico Constitution provides that the composition of and process for

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convening a grand jury be as “prescribed by law.” N.M. Const. art. II, § 14 (“A grand
jury shall be convened upon order of a judge of a court empowered to try and
determine cases of capital, felonious or infamous crimes . . . or . . . may be convened
in any additional manner as may be prescribed by law.”). The statutory basis for the
convening of grand juries has been recognized since at least 1892. Territory v. Baca,
6 N.M. 420, 440, 30 P. 870, 864 (N.M. Terr. 1892) (holding that a constitutionally
infirm statute could not create a legal grand jury). 	This is so because, while the
existence of grand juries is constitutionally required, the nature of their composition,
work, and term are matters enacted by statute. In re Mills, 135 U.S. 263, 268 (1890)
(holding that in the absence of statute, empowering a court to entertain cases for which
grand jury indictment required to charge, a court had no power to charge a crime).
When an indictment is presented by a grand jury in open court, the
presumption is that it is legally presented; that the jurors were properly
summoned, legally qualified, and competent, and that the required
number, at least concurred in the finding. These facts [are] essential to
the lawful finding and presentment[.]
State v. Rogers, 31 N.M. 485, 498-99, 247 P. 828, 834 (1926) (internal quotation
marks and citation omitted). In this case, the questions are (1) whether the term of the
grand jury had expired; and (2) if the term expired, what was the expiration’s effect
on the validity of the grand jury’s indictment of Defendant. Challenges to the validity
of the grand jury are specifically limited by statute to three enumerated grounds: (1)

7
the grand jury was not legally constituted, (2) an individual grand juror was not
legally qualified to serve as a juror, and (3) an individual juror was a witness against
the person indicted. Section 31-6-3; State v. Laskay, 103 N.M. 799, 800, 715 P.2d 72,
73 (Ct. App. 1986). It is to the legal constitution of the grand jury that Defendant
directs his appeal.
A. 	The Requirement of the Filing of an Indictment or Information is a
Constitutional Requirement Upon Which the Jurisdiction of the District
Court Depends
{11} 	“[A] court obtains no jurisdiction to proceed and render judgment in an action
brought without authority.” State ex rel. Attorney Gen. v. Reese, 78 N.M. 241, 243,
430 P.2d 399, 401 (1967). The New Mexico Constitution, Article II, Section 14 and
the Fifth Amendment to the United States Constitution require the State to file an
indictment or information before commencing a felony prosecution. State v. Chacon,
62 N.M. 291, 295-96, 309 P.2d 230, 233 (1957); State v. Ross, 1999-NMCA-134,
¶ 14, 128 N.M. 222, 991 P.2d 507. In such cases, the district court has no jurisdiction
to try a defendant without an indictment. Ross, 1999-NMCA-134, ¶ 15. The failure
of jurisdiction in this regard may not be waived. Chacon, 62 N.M. at 295, 309 P.2d
at 232-33. Nor, in the absence of a proper indictment conferring jurisdiction on the
district court, may a defendant be sentenced. Id. at 296, 309 P.2d at 233. Thus, if the
indictment in this case is void for having been issued by a grand jury that was not

8
empowered to sit, the indictment cannot confer jurisdiction on the court to consider
the case and would require dismissal.
B. 	Convening Grand Juries is Governed by Statute
{12} 	We pointed out earlier that the way in which a grand jury is convened is left to
legislative enactment by our Constitution. A grand jury is thus “a body provided for
by the New Mexico Constitution and by statute[.]” McKenzie v. Fifth Jud. Dist. Ct.,
107 N.M. 778, 779, 765 P.2d 194, 195 (Ct. App. 1988). We consider a statute’s plain
wording to be the primary, essential source of its meaning and when the statute
contains clear and unambiguous language, we are compelled to give effect to that
language, refraining from further statutory interpretation. Truong v. Allstate Ins. Co.,
2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73. As we employ the plain meaning
rule, statutes “are to be given effect as written without room for construction unless
the language is doubtful, ambiguous, or an adherence to the literal use of the words
would 	lead 	to 	injustice, 	absurdity[,] 	or 	contradiction.” 	State 	v. 	Davis,
2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. We are compelled to construe
a statute “according to its obvious spirit or reason.” Id. It is our responsibility, “if the
meaning of a statute is truly clear—not vague, uncertain, ambiguous, or otherwise
doubtful . . . to apply the statute as written and not to second-guess the [L]egislature’s
selection from among competing policies or adoption of one of perhaps several ways

9
of effectuating a particular legislative objective.” State ex rel. Helman v. Gallegos,
117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994). In this statute, there is no ambiguity
in the Legislature’s limitation of the term of a grand jury. It unequivocally expresses
the Legislature’s intention to limit the term of a grand jury to “no longer than three
months.” § 31-6-1.
{13} 	Section 31-6-1 constitutes the statutory framework applicable to grand juries
and states: “The district judge may convene one or more grand juries at any time,
without regard to court terms. A grand jury shall serve for a period of no longer than
three months.” The Supreme Court, in adopting the Uniform Jury Instructions, uses
this construction. The district court judge swears in a grand jury with an oath, which
contains the following instruction: “Your term as members of the grand jury expires
__________ [Use Note 2] unless you are discharged or excused by the court prior to
this time.” UJI 14-8002 NMRA. Use Note 2 states: “Members of a grand jury may
not serve for a period longer than three months.” 	We read the statute and jury
instruction as being in parity, establishing and recognizing in turn that a grand jury
cannot by law be convened for a period “longer than three months.” Id. There is no
exception to this mandate contained in the statute, nor provision for an extension of
the statutory period. The language is clear and unambiguous.
C. 	Three Months is not Calculated by Counting Actual Days of Service

10
{14} 	The State’s briefing points us to no statute or precedent that allows a grand jury
to operate legally past its term, and we will not pursue avenues left unexplored by a
party. Defendant argues that a grand jury whose term has expired after three months
cannot legally return a valid indictment and, thus, the district court was without
jurisdiction to try him. The State’s first response to this argument is that, although the
grand jury was empaneled for seven-and-a-half months at the time it indicted
Defendant, it had actually only served two days—November 12, 2007 and May 20,
2008—of the three-month term set by statute. To assert that the grand jury “may have
been [empaneled for] six or seven months, but it actually served for only two days,
bringing it within the terms of the statute” is untenable. 	The statute clearly
contemplates an end to a grand jury’s period of service, yet the State’s argument
seems to suggest that grand jurors could be empaneled indefinitely until they
completed a total of some ninety days of investigation and deliberation. The record
indicates that the grand jury was called to service in October 2007, and was directed
to appear in the month after it was empaneled. 	The grand jury heard absolutely
nothing from the district court for another six months until recalled in May 2008, to
hear Defendant’s case. The abandonment of statutory control of a grand jury’s term
that is inherent to the State’s approach here stands in stark contrast to the clear three-
month limit. 	We can find no authority at all that, when Judge Sanchez had “sua

11
sponte” informed the grand jury that its term was to be extended and did not commit
his order to writing, that he acted pursuant to any lawful authority whatsoever, and the
State directs us to none.
{15} 	The clear language of the statute limits the term of a grand jury to not more than
three months. There being no statutory language for extending the period of a grand
jury’s service, we hold that, in the absence of any legislative expression to the
contrary, a grand jury may not be empaneled to serve under Section 31-6-1 for a
period longer than three months. See State ex rel. Jacobson v. Dist. Ct. of Ward Cnty.
Fifth Jud. Dist., 277 N.W. 843, 848, 850 (N.D. 1938) (per curiam) (holding that, in
the face of a statute limiting the term of the grand jury, an extension of its term by
order of a district judge was of no legal effect, and the actions of the grand jury
beyond the end of its statutory term were invalid). 	The grand jury in this case
completed its work during the three-month term, making it functus officio thereafter
under Section 31-6-1. Because the grand jury’s statutory life had ended, the return of
the May 2008 indictment was not permissible under the circumstances. To ask it to
engage in further work on another matter after the end of its three-month term was
beyond the power of the prosecutor or district court. In re Laurens Cnty. April-June
2001 & July-September 2001 Grand Jury, 598 S.E.2d 915, 918 (Ga. Ct. App. 2004)
(holding that, after the grand jury had completed its statutory term, the court could not

12
reconvene it in a special session). 	New Mexico has never recognized the de facto
grand jury which was suggested below by the State to exist elsewhere. The State did
not pursue such an argument on appeal, and we agree with the Idaho Supreme Court
which, in rejecting such an argument, stated:
The grand jury . . . was properly formed and convened. There was
no defect, error, or irregularity in the filling of the grand jurors’
positions, either at the commencement of the term or at its conclusion.
The term of office expired, and thus, the offices and positions of the
grand jurors ceased to sustain a legally recognized existence. The grand
jurors were not acting as de facto officers when they returned [the
defendant’s] indictment.
State v. Dalling, 911 P.2d 1115, 1118 (Idaho 1996) (holding that indictment was void
ab initio, requiring dismissal of a criminal case). Here, as in Dalling, the grand jury
ceased to sustain its legal existence once the statutorily prescribed three-month term
expired.
D. 	The Statute is Mandatory on Its Face
{16} 	The State’s second contention does not argue that the statute is ambiguous, just
that it is not “mandatory,” but “directory” in nature. As a canon of construction, we
regard the word “shall” as mandatory. Bursum v. Bursum, 2004- NMCA-133, ¶ 17,
136 N.M. 584, 102 P.3d 651 (internal quotation marks omitted). 	“It is widely
accepted that when construing statutes, ‘shall’ indicates that the provision is
mandatory, and we must assume that the Legislature intended the provision to be

13
mandatory absent an clear indication to the contrary.” Marbob Energy Corp. v. N.M.
Oil Conservation Comm’n, 2009-NMSC-013, ¶ 22, 146 N.M. 24, 206 P.3d 135
(internal quotation marks omitted). We have previously held that “[d]eviation from
a mandatory statute or one intended to prevent fraud and unfounded prosecutions is
usually fatal and renders the grand jury illegal and its indictments null and void.”
State v. Gunthorpe, 81 N.M. 515, 517, 469 P.2d 160, 162 (Ct. App. 1970) (internal
quotation marks and citation omitted). In this case, it is undisputed that the Union
County grand jury that heard this case was convened by the district court on October
3, 2007, and Defendant’s case was considered on May 20, 2008, more than seven
months and two weeks later. 	If Section 31-6-1 sets three months as a mandatory
maximum term for a grand jury to sit, then the grand jury returned its indictment of
Defendant three months after they ceased to have any legal existence and, accordingly,
the indictment must be declared void.
{17} 	On appeal, the State cites solely to Apodaca for authority. 	Apodaca is
inapposite, as it deals with neither of their arguments. Rather than dealing with the
statutory term of the grand jury, Apodaca dealt with how qualified grand jurors are
substituted once a grand jury is empaneled. Id. at 652-53, 735 P.2d at 1158-59. The
case involved a challenge of the release and replacement of a grand juror by a
prosecutor where the statute provided that the district court was to perform that

1A similar issue arises in this case, as a grand juror was apparently aware of a
Children, Youth & Families Department investigation into the religious community
of which Defendant was the leader. We do not address it here.
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function.1 Our holding concerning provisions of the statute regards as mandatory
those provisions relating to the composition of the grand jury—the required number
and qualification of grand jurors when the grand jury is convened—but considers
provisions concerning “those which prescribe details as to the manner of selection or
drawing [as] usually . . . directory.” Id. at 653, 735 P.2d at 1159. 	Apodaca thus
supports Laskay’s holding that a failure to convene a legally constituted grand jury
transgresses a mandatory precondition to the empaneling of a grand jury.
{18} 	Statutory 	provisions 	concerning 	the 	nature 	of 	what 	is 	fundamental 	in
empaneling, convening, and providing structure to the grand jury are thus generally
mandatory, and provisions concerning its administration once empaneled are
directory. 	In State v. Ulibarri, 1999-NMCA-142, ¶¶ 8, 15-25, 128 N.M. 546, 994
P.2d 1164, we held that compliance with the statutes, requiring the preparation of a
verbatim record of grand jury proceedings, setting number of concurring jurors
necessary to issue an indictment, and requiring instruction of the grand jurors on the
record concerning the elements of offenses they were considering, were mandatory
preconditions to an indictment. There, statutes mandated the existence of an adequate
record of the proceedings and proper instruction on the law and ensured the overall

15
legal adequacy of the process of the grand jury’s work as protecting “the very heart
of the grand jury system[.]” Id. ¶ 15. When a person appeared to prosecute before the
grand jury who was not properly authorized by statute to do so, we held that the
violation of the mandatory statute compelled dismissal of the indictment. State v.
Hollenbeck, 112 N.M. 275, 276-78, 814 P.2d 143, 144-46 (Ct. App. 1991). We have
recognized that a “technical violation” of NMSA 1978, Section 31-6-4(A) (2003),
requiring a grand jury to convene during the business hours of the court, did not
require dismissal of the indictment. State v. Weiss, 105 N.M. 283, 285-86, 731 P.2d
979, 981-82 (Ct. App. 1986). However, Weiss involved a grand jury continuing their
work until two in the morning during their regular term and not being brought back
and convened by the district court more than three months after their statutory term
expired. Id. at 284, 731 P.2d at 980. In fact, Weiss contrasted the statute requiring
work during “business hours” as a “direction” for how to do the work as opposed to
“the essence of things to be done,” the latter of which would be regarded as
mandatory. Id. at 285, 731 P.2d at 981. We have previously noted that, in a statute
where the terms “shall” and “may” occur together, ordinarily it must be concluded that
the Legislature was aware of and intended different meanings. Thriftway Mktg. Corp.
v. State, 114 N.M. 578, 579, 844 P.2d 828, 829 (Ct. App. 1992) (internal quotation
marks omitted). Here, the Legislature unequivocally stated that the grand jury’s term

16
of service shall not exceed three months. Other provisions in the statute are directed
to the operation of the grand jury once convened. As in Weiss and Apodaca, these
terms have nothing to do with the legal existence of the grand jury body and are
directory. Accordingly, we conclude that the language in the statute, restricting the
term of the grand jury to three months, is central to the legal constitution and
empanelment of the grand jury and, hence, a mandatory requirement.
{19} 	Returning to the State’s argument, its contention that three months’ service can
be parceled out almost infinitely until three months’ actual time is spent by the grand
jury in the grand jury room offends the plain-language rule, its disparagement of using
statutory language to obtain absurd results, and the universal practice of limiting the
terms of grand juries. Even in states that provide for extending a grand jury’s service,
there is no provision for a grand jury to consider new matters not taken up during its
original term. To allow a grand jury to be called back for a day or two until about
ninety days’ service was eked out by the State, as it asks us to hold, offends the
underlying idea inherent to the function of the grand jury as protecting the interests
of justice. We are in accord with the Court of Appeals of New York, which reasoned
that statutes limiting grand jury terms are intended to prevent hold-over grand juries
from considering any new matters “eliminat[ing] the danger of ‘vestpocket’ [g]rand
[j]uries” that could become the captives of courts or prosecutors. 	Williams, 535

17
N.E.2d at 278-79 (citation omitted).
E. 	Obtaining an Indictment After the Grand Jury’s Term Expires Results in
an Indictment That is Void Ab Initio and Confers No Jurisdiction to Try
Defendant
{20} 	Other jurisdictions that set specific terms for their grand juries have held them
to have no power after the expiration of their terms. United States v. Fein, 504 F.2d
1170, 1173 (2d Cir. 1974). Under federal law, “an indictment returned by a grand
jury sitting beyond its legally authorized time is a nullity.” Id. at 1177. “The uniform
rule is that in the absence of statute to the contrary the grand jury is discharged by
operation of law at the end of the term of court for which it was called.” State ex rel.
Adami v. Lewis & Clark Cnty., Dist. Ct. of First Jud. Dist., 220 P.2d 1052, 1058
(Mont. 1950); Grand Jury Law and Practice § 4:12 (2d ed. 2010).
{21} 	We therefore construe the statute in this case as unambiguously mandatory in
limiting the term of grand juries to not more than three months. We are provided with
no legislative history, but note that, in most other jurisdictions, the terms of grand
juries are limited by statute, and we impute what we know of their intent in limiting
grand jury terms to our situation in New Mexico. The policy considerations employed
elsewhere are illustrative of why a limited term of service is considered mandatory
elsewhere, and why we have come to regard it as such in this case.
{22} 	“The concept of limited grand jury existence was based on considerations of

18
infusing new blood into the grand jury at frequent intervals, avoiding the extreme
personal sacrifices to jurors extended service would entail, and eliminating the
possibility of semi-professional jurors.” 	Steinbeck v. Iowa Dist. Ct. In & For Linn
Cnty., 224 N.W.2d 469, 475 (Iowa 1974). The Pennsylvania Supreme Court stated
succinctly: “A tendency to establish anything approaching permanency in a grand
jury is repugnant to our scheme of government and subversive of individual rights.
Shenker v. Harr, 2 A.2d 298, 301 (Pa. 1938).
{23} 	Thus, for a grand jury to act without authorization beyond the term during
which it is empowered to sit, is fatal to the indictment. An unauthorized extension of
the term of a grand jury beyond its term is a defect which “goes to the very existence
of the grand jury itself[.]” United States v. Macklin, 523 F.2d 193, 195 (2d Cir. 1975)
(internal quotation marks and citation omitted); United States v. Armored Transp.,
Inc., 629 F.2d 1313, 1316 (9th Cir. 1980) (“Such a defect—that the grand jury lost its
power to hand down indictments—is jurisdictional and may be raised at any time.”).
There is no statutory provision for extending the term of a grand jury in New Mexico
contained in Section 31-6-1 or otherwise and, in that absence, we cannot legislate the
existence of one. The jurisdiction of any proceeding in which Defendant is charged
with a felony depends on the “presentment or indictment of a grand jury.” 	N.M.
Const. art. II, § 14. 	Without a properly constituted grand jury returning a valid

19
indictment charging Defendant with a crime, we hold that the district court was
without jurisdiction to proceed against him.
III. 	CONCLUSION
{24} 	The indictment in this case is void because the group of citizens that issued the
purported indictment was not a legally constituted grand jury, as it had finished its
term some months before and had ceased to exist. Any extension of its term by the
district court was undertaken without statutory authority. Legally speaking, there was
no grand jury convened in this case. Therefore, there was no indictment under the law
in this case to confer jurisdiction on the district court to try, convict, or sentence
Defendant. We note that Defendant’s acquittal in a court lacking proper jurisdiction
did not violate the constitutional prohibitions against double jeopardy and would not
in and of itself bar retrial. State v. Hamilton, 107 N.M. 186, 188, 754 P. 2d 857, 859
(Ct. App. 1988). “[D]ismissals for failure to comply with the grand jury statutes and
rules are of necessity without prejudice.” State v. Ulibarri, 2000-NMSC-007, ¶ 2, 128
N.M. 686, 997 P.2d 818 (internal quotation marks and citation omitted). Therefore,
we remand this case to the district court and instruct that the charges and conviction
be set aside without prejudice, the indictment be quashed, and Defendant be
discharged from custody.
{25} 	IT IS SO ORDERED.

WE CONCUR:

JONATHANB. SUTIN, Judge

TIMOTHY L. GARCIA, Judge

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RODERICK T. KENNEDY, J udge