State v. Powell ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,232
10 FLOYD POWELL,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 Jerry H. Ritter, Jr., District Judge
14 Gary K. King, Attorney General
15 Anita Carlson, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Nancy M. Hewitt, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
1 This case comes to us on remand from our earlier decision reversing the district
2 court’s denial of Defendant’s motion to dismiss. Defendant had argued dismissal was
3 required for violations of the six-month rule and his right to a speedy trial. Our
4 Supreme Court has since clarified that the six-month rule no longer applies to pending
5 cases. Accordingly, we now address Defendant’s speedy trial argument.
6 Defendant was arraigned in magistrate court on December 5, 2007. On March
7 17, 2008, the State filed a nolle prosequi in magistrate court and refiled in district
8 court the following day. On October 21, 2008, Defendant filed a motion to dismiss
9 for violation of the six-month rule and his right to a speedy trial, arguing that his trial
10 should have commenced on or before June 5, 2008. Defendant entered a conditional
11 plea on October 22, 2008, reserving his right to appeal the denial of his motion to
12 dismiss for violations of the six-month rule and his right to a speedy trial.
13 The district court denied Defendant’s motion, and Defendant appealed. After
14 the case had been briefed, our Supreme Court withdrew the six-month rule for all
15 pending cases. State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20.
16 Because we believed that this rule change only applied to cases pending in the district
17 court at the time Savedra was filed, we applied the six-month rule to determine that
18 the charges against Defendant should have been dismissed. Additionally, since we
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1 decided the issue on the six-month rule, we did not address Defendant’s speedy trial
2 argument.
3 Our Supreme Court has since clarified the meaning of “pending” as used in
4 Savedra. In State v. Martinez, the Court held that “Savedra applies to all pending
5 cases that were not yet final as of May 12, 2010,” regardless of which court they were
6 pending in. State v. Martinez, 2011-NMSC-010, ¶¶ 10, 12, 149 N.M. 370, 249 P.3d
7 82. Our belief that Savedra did not apply to this case was therefore in error.
8 Accordingly, our previous reversal in this case was remanded to us, and we now
9 address Defendant’s speedy trial claim. See id. ¶ 13.
10 Our Supreme Court has adopted the four-factor test from Barker v. Wingo, 407
11 U.S. 514 (1972), for determining whether a defendant’s right to a speedy trial has been
12 violated. The review of these factors is triggered by the length of delay involved. See
13 State v. Garza, 2009-NMSC-038, ¶ 21, 146 N.M. 499, 212 P.3d 387. In Garza, our
14 Supreme Court set forth a one-year time period as a guideline to trigger the
15 presumption of prejudice for simple cases. Id. ¶ 48. This “guideline[] appl[ies] only
16 to speedy trial motions to dismiss initiated on or after August 13, 2007.” Id. ¶ 50.
17 As the motion to dismiss in this case was filed on October 21, 2008, the one-year
18 deadline applies. Because the delay in the instant case was only ten months, there is
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1 no presumption of prejudice, and we need not examine the four factors to conclude
2 that Defendant’s right to a speedy trial was not violated.
3 For the foregoing reasons, we affirm the district court.
4 IT IS SO ORDERED.
5
6 MICHAEL D. BUSTAMANTE, Judge
7 WE CONCUR:
8
9 JONATHAN B. SUTIN, Judge
10
11 LINDA M. VANZI, Judge
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