State v. Garcia

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellant,

9 v. No. 30,275

10 MICHAEL GARCIA,

11 Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 William A. Sanchez, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellant

17 Hugh W. Dangler, Chief Public Defender 18 J.K. Theodosia Johnson, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellee

21 MEMORANDUM OPINION

22 SUTIN, Judge.

23 The State appeals from the order dismissing charges against Defendant based

24 on pre-indictment delay and speedy trial violations. We issued a calendar notice 1 proposing to reverse the district court order, and we have received a memorandum in

2 opposition from Defendant. We have considered Defendant’s arguments, but we are

3 not persuaded that reversal is not the correct disposition in this case. We therefore

4 reverse.

5 In our calendar notice, we proposed to hold that the triggering date for speedy

6 trial purposes was, at the earliest, August 20, 2009, the date that Defendant was

7 indicted in district court. We explained that, although charges had been previously

8 filed against Defendant in magistrate court and then dropped, there was nothing to

9 show that the dismissal of the charges was for tactical reasons or for reasons that

10 constituted bad faith. See State v. Hill, 2005-NMCA-143, ¶ 12, 138 N.M. 693, 125

11 P.3d 1175 (stating that speedy trial concerns are not triggered when charges are

12 dismissed, the defendant is released from custody, and charges are refiled at a later

13 date so long as the charges are dropped in good faith). The time period from August

14 20, 2009, to the date that Defendant filed his motion to dismiss on February 17, 2010,

15 amounted to less than six months. Therefore, the length of delay was not

16 presumptively prejudicial, and there is no need to inquire into the remaining speedy

17 trial factors. See State v. Garza, 2009-NMSC-038, ¶¶ 21, 47, 146 N.M. 499, 212 P.3d

18 387. We reverse the district court’s determination that Defendant’s speedy trial rights

19 were violated.

2 1 Defendant does not challenge our proposed disposition with regard to his

2 argument on pre-indictment delay. When a case is decided on the summary calendar,

3 an issue is deemed abandoned where a party fails to respond to the proposed

4 disposition of the issue. State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct.

5 App. 1988). Therefore, we rely on our discussion in the calendar notice and reverse

6 on this issue.

7 For the reasons discussed in this opinion and those included in our calendar

8 notice, we reverse the district court’s order granting Defendant’s motion to dismiss.

9 IT IS SO ORDERED.

10 __________________________________ 11 JONATHAN B. SUTIN, Judge

12 WE CONCUR:

13 _________________________________ 14 JAMES J. WECHSLER, Judge

15 _________________________________ 16 TIMOTHY L. GARCIA, Judge