State v. Alderete , 95 N.M. 691 ( 1980 )

OPINION

WOOD, Chief Judge.

Defendant was convicted of unlawful possession of heroin. Section 30-31-23, N.M.S.A. 1978. His claim, that he was denied his right to a speedy trial, is without merit. See State v. Tafoya, 91 N.M. 121, 570 P.2d 1148 (Ct.App.1977); State v. Lucero, 91 N.M. 26, 569 P.2d 952 (Ct.App.1977); State v. Harvey, 85 N.M. 214, 510 P.2d 1085 (Ct.App.1973). The issue for discussion involves New Mexico’s Agreement on Detainers, compiled under Section 31-5-12, N.M. S.A. 1978. Defendant moved to dismiss the indictment, claiming that New Mexico had not complied with the Agreement. He contends the denial of this motion was error.

The pertinent portion of the Agreement is the first sentence in Paragraph A of Article 3. It reads:

A. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he has caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

Defendant was in prison in California. He asserts the 180-day period, for bringing him to trial in New Mexico, began to run on February 6, 1979 when he allegedly notified California authorities that he desired a final disposition of the New Mexico charges. It is unnecessary to decide, in this case, whether his alleged notice to California authorities started the running of the 180-day period. We assume, but do not decide, that the time period began to run on February 6, 1979.

The trial was originally scheduled for August 6, 1979. Defendant asserts the 180-day period expired on August 5, 1979. This is incorrect. August 5, 1979 was a Sunday. Trial on August 6, 1979 would have been timely. Rule of Crim.Proc. 4(a).

The trial was not held on August 6, 1979. That setting was vacated; trial began on September 24, 1979. The Agreement says “brought to trial within one hundred eighty days * * *.” Because he was not brought to trial within that time period, defendant claims he was entitled to dismissal of the indictment.

Defendant overlooks additional language in the Agreement: “[F]or good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”

On June 8, 1979, by written notice, defendant raised the issue of insanity at the time of commission of the offense. On June 26,1979 the State moved for a psychiatric examination. This motion was pending when, on July 6, 1979, notice was given that trial would be August 6, 1979.

The State’s motion for a psychiatric examination was heard on July 20, 1979. Defendant opposed the motion, taking the position that the State was not entitled to an examination until defendant decided whether he would, in fact, present an insanity defense at trial; that defendant was having his own examination but it was not concluded. The trial court granted the State’s motion but, concerned with the trial date, asked that the examination be expedited.

The examination was not expedited. The record contafns orders for the transportation of defendant in connection with defendant’s examination on August 3 and 14, 1979. The report in connection with the State’s examination was not received until August 21, 1979. The record establishes that the case was not tried on August 6, 1979 because of delay in examining defendant.

Defendant concedes there was reasonable grounds for not trying the case on August 6, 1979. He argues, however, that there was no continuance; that if there was a continuance, the continuance did not occur in open court with counsel present, and if there was a continuance, it was not necessary.

There is no formal order continuing the August 6th trial date, but it is uncontradicted that there was a continuance. The Agreement does not- require a formal order, although such would be helpful. It is the fact of continuance that is important and, in fact, there was a continuance because the casé was not tried as scheduled on August 6, 1979.

The record is ambiguous as to whether the August 6th trial date was vacated in open court with counsel present. In arguing for dismissal, defense counsel seemed to indicate that “the State requested the delay” at the time of the hearing on its motion seeking the psychiatric examination. This record does not show the continuance was not granted in open court; the record is insufficient to establish defendant’s contention. State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975). Defendant had the burden of providing a sufficient record. State v. Cranford, 92 N.M. 5, 582 P.2d 382 (1978).

Defendant claims the continuance was not necessary. Inasmuch as the trial court’s admonition to expedite the examination went unheeded, and inasmuch as defendant was attempting to delay the State’s examination, we cannot say, as a matter of law, that the continuance was unnecessary.

Defendant also seems to claim that the continuance was not granted before the 180-day period expired. This is incorrect; the continuance within 180 days is established by the fact that the August 6th trial setting was vacated.

The judgment and sentence are affirmed.

IT .IS SO ORDERED.

WALTERS, J., concurs. LOPEZ, J. (dissenting).