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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 Plaintiff-Appellant,
4 v. NO. 28,980
5 DAVID SALAZAR,
6 Defendant-Appellee.
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 MEMORANDUM OPINION
18 FRY, Chief Judge.
19 This case requires us to determine whether there was a violation of Rule 7-
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 7-
8 506(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 7-
11 506(B). State v. Granado, 2007-NMCA-058, ¶ 11, 141 N.M. 575, 158 P.3d 1018.
12 NMSA 1978, Section 31-3-2(A) (1993) states that “[w]henever any person fails
13 to appear at the time and place fixed by the terms of recognizance, the court may issue
14 a warrant for his arrest.” Similarly, Rule 7-207(A) NMRA states that if a “person who
15 has been ordered by the metropolitan judge to appear at a certain time and place . . .
16 fails to do the thing so ordered, the court may issue a warrant for the person’s arrest.”
17 These provisions grant judges discretionary authority to issue bench warrants when
18 someone who was ordered to appear in court does not. See Granado, 2007-NMCA-
19 058, ¶ 23.
4 1 As part of Defendant’s conditions of release following arraignment, Defendant
2 agreed “to appear before the court . . . at such times and places required by this case
3 by any court.” Defendant also declared that he understood that additional criminal
4 charges might be filed against him if he violated his conditions of release. In addition,
5 the notice for the January hearing sent to Defendant stated, “FAILURE TO APPEAR
6 AT THE TIME AND DATE SPECIFIED WILL RESULT IN THE ISSUANCE OF
7 A WARRANT FOR YOUR ARREST.” In violation of his conditions of release,
8 Defendant failed to appear for the January hearing. Pursuant to Section 31-3-2(A) and
9 Rule 7-207(A), the metropolitan court judge was authorized to issue a bench warrant
10 for Defendant’s arrest. See Granado, 2007-NMCA-058, ¶ 23. We hold that there was
11 no violation in issuing the warrant for Defendant’s failure to appear.
12 Defendant challenges the metropolitan court’s issuance of the bench warrant
13 under several theories. First, he argues that the court based its decision on the need
14 to toll the 182-day rule and that the record does not support the conclusion that the
15 182-day rule needed to be extended. The issue, however, is not whether the rule
16 needed to be tolled, but whether the court had the authority to issue the warrant once
17 Defendant failed to appear and whether it abused its authority by issuing the warrant.
18 The warrant did not become invalid simply because the metropolitan court may have
19 considered alternative reasons for its issuance. The facts remain that Defendant was
5 1 not present at the hearing, he had not signed a waiver of his appearance, and his
2 counsel could not agree to an extension of the 182-day rule without Defendant’s
Free access — add to your briefcase to read the full text and ask questions with AI
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 Plaintiff-Appellant,
4 v. NO. 28,980
5 DAVID SALAZAR,
6 Defendant-Appellee.
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 MEMORANDUM OPINION
18 FRY, Chief Judge.
19 This case requires us to determine whether there was a violation of Rule 7-
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 7-
8 506(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 7-
11 506(B). State v. Granado, 2007-NMCA-058, ¶ 11, 141 N.M. 575, 158 P.3d 1018.
12 NMSA 1978, Section 31-3-2(A) (1993) states that “[w]henever any person fails
13 to appear at the time and place fixed by the terms of recognizance, the court may issue
14 a warrant for his arrest.” Similarly, Rule 7-207(A) NMRA states that if a “person who
15 has been ordered by the metropolitan judge to appear at a certain time and place . . .
16 fails to do the thing so ordered, the court may issue a warrant for the person’s arrest.”
17 These provisions grant judges discretionary authority to issue bench warrants when
18 someone who was ordered to appear in court does not. See Granado, 2007-NMCA-
19 058, ¶ 23.
4 1 As part of Defendant’s conditions of release following arraignment, Defendant
2 agreed “to appear before the court . . . at such times and places required by this case
3 by any court.” Defendant also declared that he understood that additional criminal
4 charges might be filed against him if he violated his conditions of release. In addition,
5 the notice for the January hearing sent to Defendant stated, “FAILURE TO APPEAR
6 AT THE TIME AND DATE SPECIFIED WILL RESULT IN THE ISSUANCE OF
7 A WARRANT FOR YOUR ARREST.” In violation of his conditions of release,
8 Defendant failed to appear for the January hearing. Pursuant to Section 31-3-2(A) and
9 Rule 7-207(A), the metropolitan court judge was authorized to issue a bench warrant
10 for Defendant’s arrest. See Granado, 2007-NMCA-058, ¶ 23. We hold that there was
11 no violation in issuing the warrant for Defendant’s failure to appear.
12 Defendant challenges the metropolitan court’s issuance of the bench warrant
13 under several theories. First, he argues that the court based its decision on the need
14 to toll the 182-day rule and that the record does not support the conclusion that the
15 182-day rule needed to be extended. The issue, however, is not whether the rule
16 needed to be tolled, but whether the court had the authority to issue the warrant once
17 Defendant failed to appear and whether it abused its authority by issuing the warrant.
18 The warrant did not become invalid simply because the metropolitan court may have
19 considered alternative reasons for its issuance. The facts remain that Defendant was
5 1 not present at the hearing, he had not signed a waiver of his appearance, and his
2 counsel could not agree to an extension of the 182-day rule without Defendant’s
3 authorization, which counsel could not obtain prior to the hearing due to Defendant’s
4 medical condition. The 182-day rule was going to run within two months, and it was
5 unclear when Defendant would be able to attend court proceedings. We cannot say
6 the metropolitan court abused its discretion or otherwise erred by considering the
7 effect of the bench warrant on the 182-day rule prior to issuing the warrant. See id.
8 (“The rule leaves it to the discretion of the judge whether to issue a bench
9 warrant[.]”); see also State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152
10 P.3d 828 (holding that the appellate court will affirm a district court’s decision if it is
11 right for any reason so long as it is not unfair to the appellant); State v. Candelaria,
12 2008-NMCA-120, ¶ 14, 144 N.M. 797, 192 P.3d 792 (stating that courts have the
13 inherent authority to control the docket and the proceedings before it).
14 Defendant further contends that the court should not have issued the bench
15 warrant in “an attempt to circumvent the running of a speedy-trial court rule.”
16 Defendant relies on cases involving the state’s dismissal and later refiling of criminal
17 complaints to support his argument that the court cannot circumvent the 182-day rule
18 by issuing bench warrants. See, e.g., State v. Yates, 2008-NMCA-129, 144 N.M. 859,
19 192 P.3d 1236, aff’d sub nom., State v. Savedra, __-NMSC-__, __ N.M. __, __ P.3d
6 1 __ (filed May 12, 2010). Defendant’s reliance on these cases is misplaced. In this
2 case, we are not addressing the dismissal and refiling of charges. The court’s role in
3 issuing a warrant is not analogous to the state’s responsibility to bring a defendant to
4 trial.
5 Next, Defendant argues that the court abused its discretion in issuing the
6 warrant because his absence was due to a serious medical condition and was not
7 willful. The plain language of the statute and the rule states simply that if a person
8 fails to do what was ordered by the court, the court can issue a bench warrant. Section
9 31-3-2; Rule 7-207(A); see State v. Gutierrez, 2007-NMSC-033, ¶ 30, 142 N.M. 1,
10 162 P.3d 156 (“The plain language of the statute is the primary indicator of legislative
11 intent, so we look first to the words the Legislature used and their ordinary
12 meaning.”). Compare Section 31-3-2(A), and Rule 7-207(A), with NMSA 1978,
13 Section 31-3-9 (1999) (requiring a finding that the defendant “willfully fail[ed] to
14 appear” in order to prove guilt for failure to appear (emphasis added)). Under the
15 circumstances, the metropolitan court had the discretion to avoid issuing the bench
16 warrant and could have attempted to proceed within the time left under the 182-day
17 rule. The metropolitan court was under no obligation to do so and had the right to
18 consider all the relevant factors to determine whether it was appropriate to withhold
7 1 issuing the warrant for failure to appear. The court did not abuse its discretion in
2 issuing the bench warrant because Defendant did not attend the pretrial hearing.
3 Defendant also argues an alternative ground for finding a violation of the 182-
4 day rule. He argues that the metropolitan court abused its discretion when it denied
5 his motion to continue and refused to set the case for trial. Although the metropolitan
6 court did not expressly rule on Defendant’s motion to continue and request to waive
7 his appearance, it impliedly rejected them when it issued the bench warrant. Again,
8 the court’s rulings were discretionary, and Defendant has failed to convince us that the
9 metropolitan court abused its discretion. See State v. Rojo, 1999-NMSC-001, ¶ 41,
10 126 N.M. 438, 971 P.2d 829 (filed 1998) (“An abuse of discretion occurs when the
11 ruling is clearly against the logic and effect of the facts and circumstances of the case.
12 We cannot say the trial court abused its discretion by its ruling unless we can
13 characterize it as clearly untenable or not justified by reason.” (internal quotation
14 marks and citation omitted)). The facts before us do not establish that the court’s
15 docket would accommodate a resetting of the hearing and a trial within the short time
16 left under the 182-day rule. See Candelaria, 2008-NMCA-120, ¶ 14 (“The authority
17 of the court to control its docket encompasses the power to supervise and control the
18 movement of all cases on its docket[.]” (internal quotation marks and citation
19 omitted)).
8 1 We hold that the metropolitan court did not err in issuing the bench warrant or
2 abuse its discretion in refusing to grant a continuance, waive Defendant’s appearance,
3 and immediately set the case for trial. As a result, there was no violation of Rule 7-
4 506.
5 CONCLUSION
6 For the foregoing reasons, we reverse the district court and affirm the
7 metropolitan court. This matter is remanded for such further proceedings as may be
8 necessary consistent with this opinion.
9 IT IS SO ORDERED.
10 11 CYNTHIA A. FRY, Chief Judge
12 WE CONCUR:
13 14 MICHAEL D. BUSTAMANTE, Judge
15 16 CELIA FOY CASTILLO, Judge