 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                          NO. 30,685

10 TONY BURTON,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge


14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Anne Kelly, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Law Offices of Nancy L. Simmons, P.C.
20 Nancy L. Simmons
21 Albuquerque, NM

22 for Appellant


23                                 MEMORANDUM OPINION
 1 KENNEDY, Judge.

 2        Tony Burton (Defendant) appeals from his conviction for driving while

 3 intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102 (2008) (amended

 4 2010). Defendant contends that it was error for the district court to grant the State’s

 5 motion to continue and to try his case after he moved for dismissal based upon a

 6 violation of the six-month rule set forth in Rule 5-604 NMRA. As of March 23, 2011,

 7 a new rule applies to all pending cases. After analyzing this case in light of the new

 8 rule, we affirm.

 9 I.     BACKGROUND

10        Because Defendant argues that his case should have been dismissed under the

11 six-month rule, we must examine the timing of his case. Defendant was initially

12 arraigned in the Doña Ana magistrate court on November 2, 2009. Defendant invoked

13 his right to a trial by jury and, as a result, the State dismissed the action in magistrate

14 court. Defendant was arraigned in district court on February 8, 2010. On May 3,

15 2010, the State filed a motion to continue the trial. Defendant opposed the motion and

16 filed a motion to dismiss the case on May 5, 2010, asserting that, pursuant to Rule 5-

17 604, the six-month rule had expired. Defendant further argued that, in order to grant

18 the State’s motion for a continuance, the district court was required to find

19 “exceptional circumstances”—the standard for continuances requested by the State



                                                2
 1 contained in the magistrate court rule. Defendant additionally stated before the district

 2 court that he was not asserting a speedy trial issue, but instead was merely arguing that

 3 the six-month rule had been violated. The district court disagreed, denied Defendant’s

 4 motion to dismiss, found good cause for the continuance, and continued the trial to the

 5 next day, May 7, 2010. Defendant subsequently entered into a conditional plea

 6 agreement, pleading guilty to DWI, but reserving the right to appeal the district

 7 court’s grant of the State’s motion to continue and denial of his motion to dismiss.

 8 II.    DISCUSSION

 9        Defendant argues that the district court used the wrong standard when deciding

10 whether a continuance should be granted. This Court applies a de novo standard of

11 review when considering legal questions concerning the interpretation of Supreme

12 Court rules and the district court’s application of the law to the facts of this case.

13 State v. Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824.

14        The law regarding the six-month rule has been in flux while this case was

15 pending. The six-month rule originally was implemented in response to the United

16 States Supreme Court’s decision in Barker v. Wingo, 407 U.S. 514 (1972). State v.

17 Martinez, 2011-NMSC-010, ¶ 8, 149 N.M. 370, 249 P.3d 82. The rule was initially

18 intended to be a case management tool that would provide “a rudimentary warning of

19 when speedy trial problems may arise.” Id. (internal quotation marks and citation



                                               3
 1 omitted). On May 12, 2010, our Supreme Court issued State v. Savedra, which

 2 withdrew the six-month rule provisions set forth in Rule 5-604(B)-(E) (2009).

 3 Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20. Rather than apply a rigid

 4 six-month rule, Savedra instructed the courts to use the speedy trial factors of Barker

 5 “whenever . . . impermissible delay has occurred; whether that delay is the result of

 6 a dismissal and refiling or any other cause[.]” Martinez, 2011-NMSC-010, ¶ 2

 7 (alteration in original) (internal quotation marks and citation omitted). In Savedra, our

 8 Supreme Court noted that, while six-month rules are useful in courts of limited

 9 jurisdiction, the district court rule was “an unnecessary and sometimes

10 counterproductive method for protecting a defendant’s right to a speedy trial.” 2010-

11 NMSC-025, ¶ 9. Later, in Martinez, our Supreme Court further clarified that “[t]he

12 six-month rule was never intended to have such a broad and, at times, arbitrary reach.

13 The rule was designed to reinforce the constitutional right to a speedy trial, not usurp

14 that right as a stand-alone legal doctrine.” 2010-NMSC-010, ¶ 9. The Supreme Court

15 in Savedra withdrew the provisions of Rule 5-604(B)-(E) (2009) for all cases pending

16 as of May 12, 2010, and held that defendants may instead rely upon their right to a

17 speedy trial when impermissible delay has occurred. Savedra, 2010-NMSC-025, ¶ 9.

18        Subsequently, the Supreme Court rewrote Rule 5-604 to reflect the holding of

19 Savedra. See Supreme Court Order No. 11-8300-019 (May 1, 2011). The new rule



                                               4
 1 became effective for all cases pending in any court in New Mexico on March 23,

 2 2011. Because this case was pending on or after March 23, 2011, we apply the new

 3 rule.

 4         Defendant argues that “the new text of Rule 5-604, explicitly adopted as a

 5 reaction to the Supreme Court’s decision in Savedra, does not even contemplate the

 6 question of extensions sought by the State.” We disagree. The new version of Rule

 7 5-604(B) states that “[i]f the district court does not initially schedule a refiled case

 8 within the trial deadline that would have been applicable had the case remained in the

 9 [magistrate] court, or if the court grants a continuance beyond that deadline, the

10 defendant may move that the court consider whether the case should be dismissed for

11 violation of the defendant’s right to speedy trial[.]” The fact that the rule references

12 continuances given by the district court, but adopts no specific rules regarding how

13 those continuances are to be issued within Rule 5-604, means that motions for

14 continuances should be treated the same as any other motion for continuance in

15 district court. See Rule 5-101(A) NMRA (providing that the rules of criminal

16 procedure for the district court “govern the procedure in the district courts of New

17 Mexico in all criminal proceedings”).

18         The granting or denial of a continuance is “within the sound discretion of the

19 trial court, and the burden of establishing abuse of discretion rests with the



                                              5
 1 defendant.” State v. Sanchez, 120 N.M. 247, 253, 901 P.2d 178, 184 (1995). The

 2 defendant must show not only that the court abused its discretion, but also that such

 3 abuse prejudiced the defendant. State v. Nieto, 78 N.M. 155, 157, 429 P.2d 353, 355

 4 (1967). Here, Defendant failed to argue either that the court abused its discretion in

 5 allowing the continuance, or that allowing a continuance for a mere four days after the

 6 magistrate 182-day-rule would have expired caused him prejudice, and we thus find

 7 no error in the court’s decision to grant the State’s motion to continue.

 8        Finally, while the new rule still references the 182-day-rule used in magistrate

 9 court, it no longer gives Defendant a remedy under that rule alone. Instead, when “the

10 district court does not initially schedule a refiled case within the trial deadline that

11 would have been applicable had the case remained in the [magistrate] court, or if the

12 court grants a continuance beyond that deadline,” Defendant’s remedy is to assert his

13 speedy trial rights pursuant to the factors outlined in Rule 5-604(B). Here, Defendant

14 specifically stated below that he was not asserting his speedy trial rights and, thus,

15 Defendant has not preserved any available remedy under Rule 5-604. Were we

16 instead to interpret the new rule in the way Defendant argues, allowing the magistrate

17 rule for continuances to apply in cases refiled in the district court, we would

18 effectively recreate many of the problems Savedra intended to prevent, “usurp[ing




                                              6
1 Defendant’s speedy trial rights] as a stand-alone legal doctrine.” Martinez, 2011-

2 NMSC-010, ¶ 9.

3 III.   CONCLUSION

4        Accordingly, we affirm the decision of the district court.

5        IT IS SO ORDERED.



6                                               _______________________________
7                                               RODERICK T. KENNEDY, Judge


8 WE CONCUR:



 9 _________________________
10 CYNTHIA A. FRY, Judge



11 _________________________
12 J. MILES HANISEE, Judge




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