Preview:

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 4 v. 5 DAVID SALAZAR, 6 Defendant-Appellee. Plaintiff-Appellant, NO. 28,980

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Stan Whitaker, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 James W. Grayson, Assistant Attorney General 12 Albuquerque, NM 13 for Appellant 14 David Henderson 15 Santa Fe, NM 16 for Appellee 17 18 FRY, Chief Judge. 19 This case requires us to determine whether there was a violation of Rule 7MEMORANDUM OPINION

20 506(B) NMRA (the 182-day rule). In order to answer this question, we must evaluate

1 whether the metropolitan court erred in issuing a bench warrant for Defendant, thereby 2 restarting the 182-day rule upon Defendant's surrender. We hold there was no error 3 in issuing the bench warrant and, consequently, no violation of Rule 7-506(B). We 4 affirm Defendant's conviction. 5 BACKGROUND 6 Defendant was charged on August 17, 2006, with DWI and driving the wrong

7 way on a roadway. The court scheduled a pretrial hearing for January 19, 2007, 8 almost two months before the 182-day rule was set to run on March 15, 2007. 9 Defense counsel filed a motion for continuance because Defendant had to undergo an 10 unplanned heart catheterization on January 18 and would be unable to attend the 11 January 19th hearing. Defense counsel also stated that he could not get a signed 12 waiver of appearance from Defendant due to Defendant's hospitalization. The State 13 would not agree to the continuance of the pretrial hearing unless Defendant agreed to 14 a thirty-day extension of the 182-day rule. 15 On the day of the hearing, defense counsel attended and explained that

16 Defendant was still in the hospital. The metropolitan court stated that it would have 17 to issue a bench warrant for Defendant in order to toll the 182-day rule unless defense 18 counsel agreed to an extension of the 182-day rule date. Defense counsel did not 19 agree to the extension, but he instead responded that he did not know why an

2

1 extension would be necessary because the court could just set the matter for trial. The 2 court proceeded to issue the warrant, stating that it had "to issue the warrant to stop 3 the rule" and that it had "to protect the system and make sure that the cases move." 4 Defense counsel again stated that he wanted to set the case for trial. The court replied, 5 "I can't excuse [Defendant's] presence without [his authorization]. So the only thing 6 I can do is issue a warrant." 7 A week later, Defendant submitted to the metropolitan court's authority by

8 posting an appearance bond through his counsel. The court set trial on the driving 9 charges for May 9, 2007. At trial, Defendant moved to dismiss based on a violation 10 of Rule 7-506(B). The metropolitan court denied Defendant's motion on the basis that 11 a new 182-day rule date was established when Defendant surrendered to the court on 12 the bench warrant. At the conclusion of the bench trial, the court found Defendant 13 guilty of DWI and driving on the wrong side of a roadway. 14 Defendant appealed his convictions to the district court, and the district court

15 reversed Defendant's conviction. The district court concluded that the metropolitan 16 court erred in issuing the bench warrant and that because the warrant was invalid, the 17 rule did not reset when Defendant surrendered to the court. Because the rule did not 18 reset, the court concluded that Defendant was not tried within 182 days and reversed 19 his conviction. The State appealed the district court's decision to this Court, arguing

3

1 that the district court erred in finding a violation of Rule 7-506(B) because the 2 metropolitan court lawfully exercised its discretion in issuing the bench warrant. 3 DISCUSSION 4 Under Rule 7-506(B), a trial must commence within 182 days of one of the

5 listed triggering events, whichever occurs latest. The State argues that there was no 6 182-day rule violation because Defendant's trial started within 182 days of 7 Defendant's surrender for failure to appear at the pretrial hearing. See Rule 78 506(B)(5). Defendant argues that the 182-day rule ran because Defendant's surrender 9 was subsequent to a bench warrant that should not have been issued. We review de 10 novo whether Defendant's trial commenced within the time allowed under Rule 711 506(B). State v. Granado, 2007-NMCA-058,

Download CA28980.pdf

New Mexico Law