 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 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 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


                                                2
 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


                                              3
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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