State v. Warner , 86 N.M. 219 ( 1974 )

OPINION

WOOD, Chief Judge.

Defendant appeals his conviction of an attempt to commit aggravated burglary. Sections 40A-28-1 and 40A-16-4, N.M.S. A.1953 (2d Repl.Vol. 6). The issues concern: (1) written transcript of the preliminary examination and (2) delay in holding the preliminary examination.

Written transcript of the preliminary examination.

Testimony at the preliminary examination was recorded on tape. The district attorney tendered this tape to defendant for his use at the trial. Defendant asserts the tape was insufficient. He contends he was entitled to a “written” transcript of the proceedings at the preliminary examination. His request for such a transcript was denied by the trial court. Defendant claims the denial deprived him of his constitutional right to equal protection. This contention is answered adverse to defendant in State ex rel. Moreno v. Floyd, 85 N.M. 699, 516 P.2d 670, decided December 7, 1973.

Delay in holding the preliminary examination.

Section 41-23-20(d), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973) states:

“Time: A preliminary hearing shall be held within a reasonable time but in any event not later than ten [10] days following ' the initial appearance if the defendant is in custody and no later than twenty [20] days if he is not in custody * * * >>

Defendant asserts his preliminary examination was not held within the time provided by the above rule. Because of the asserted rule violation, he contends his conviction should be reversed and the charge against him should be dismissed. We disagree.

A criminal complaint and an arrest warrant were issued December 18, 1972. The record indicates defendant was in custody from the time of his arrest. His first appearance before a magistrate was December 19, 1972. Rights which are required to be explained to a defendant at this first appearance include the right to the assistance of counsel, and the possible right to representation by an attorney at State expense. Section 41-23-19, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973).

An unexecuted affidavit concerning defendant’s ability to employ counsel bears the notation that, on December 19, 1972, defendant refused to sign the affidavit and refused to “give information for an attorney.” There is also a notation to the effect that the preliminary examination had been scheduled for December 27 “so preliminary is pending.”

A criminal information was filed in the district court on February 23, 1973. At a hearing before the district court on February 26, 1973, the defendant admitted that at the time of his appearance before the magistrate he was unwilling to accept the appointment of an attorney to represent him. Defendant explained that he did not want an appointed attorney unless he was allowed to select the attorney. The court disapproved this procedure. Defendant stated he wished to represent himself but would accept appointed counsel to “act as my assistant.” The court then deferred further proceedings until defendant could be advised by counsel as to his legal rights. An attorney was appointed as defendant’s “legal advisor” on February 28, 1973.

The next court appearance of defendant was May 30, 1973. At that hearing, defendant stated he desired to have a preliminary examination. Defendant also expressed the desire to have counsel appointed to represent him. The court ordered that a preliminary examination be held that day and appointed the “legal advisor” to act as defendant’s counsel.

The foregoing shows that a preliminary examination was scheduled in compliance with § 41-23-20(d), supra. The inference is that the examination was not held at the scheduled time because of defendant’s refusal to supply information to the magistrate. This information was needed for a determination as to whether defendant was entitled to court appointed counsel.

The question of counsel was resolved on February 28, 1973, but there is nothing explaining the delay from December 19, 1972, to February 26, 1973. A preliminary examination was held May 30, 1973, but there is nothing explaining the delay from the appointment of a legal ad-visor on February 28, 1973, until May 30, 1973. With these unexplained delays, defendant’s claim that § 41-23-20 (d), supra, had been violated cannot be answered on the basis that the delays were attributable to defendant. United States v. Catino, 403 F.2d 491 (2d Cir. 1968), cert. denied, [Pagano v. United States], 394 U.S. 1003, 89 S.Ct. 1598, 22 L.Ed.2d 780 (1969); Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705 (1965).

On the basis that § 41-23-20(d), supra, had been violated, defendant sought dismissal of the criminal charge. Assuming a rule violation, the remedy for the violation is not dismissal. When a defendant has been denied a timely preliminary examination, the court is to proceed in its discretion in fashioning relief to an aggrieved defendant. United States v. Green, 305 F.Supp. 125 (S.D.N.Y.1969). However, neither dismissal of the charge, nor reversal of a conviction, is an appropriate remedy if there is no showing of prejudice. Powell v. United States, supra. Compare State v. Budau, 86 N.M. 21, 518 P.2d 1225 (Ct.App.1973). Here, no prejudice is shown.

The judgment and sentence is affirmed.

It is so ordered.

HENDLEY, J., concurs.