 1   This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-
 2   405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this
 3   electronic decision may contain computer-generated errors or other deviations from the official
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 5         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 6 STATE OF NEW MEXICO,

 7          Plaintiff-Petitioner,

 8 v.                                                           NO. 31,775

 9 AMANDA WARREN,

10          Defendant-Respondent.


11 ORIGINAL PROCEEDING ON CERTIORARI
12 Michael T. Murphy, District Judge


13 Gary K. King, Attorney General
14 Ann M. Harvey, Assistant Attorney General
15 Santa Fe, NM

16 for Petitioner


17 The Pickett Law Firm, L.L.C.
18 Mark L. Pickett
19 Las Cruces, NM

20 for Respondent


21                                            DECISION
 1 CHÁVEZ, Justice.

 2        Defendant Amanda Warren was charged with aggravated DWI, contrary to

 3 NMSA 1978, Section 66-8-102(D)(1) (1953, as amended through 2008) and speeding,

 4 contrary to NMSA 1978, Section 66-7-301 (1978, as amended through 2002).

 5 Defendant was released on bond under conditions that included staying in contact with

 6 her attorney, avoiding alcohol and controlled substances, not violating the law, and

 7 not driving without a valid license. On February 8, 2008, Defendant’s counsel filed

 8 an entry of appearance which included a demand that “all proceedings in this matter

 9 be subject to the Speedy Trial Act (6th and 14th Amendment [sic] United States

10 Constitution; New Mexico Constitution, Article II, Section 4)[.]” Trial was scheduled

11 for August 12, 2008. On August 11, 2008, Defendant filed a motion to dismiss for

12 violation of the six-month rule. On August 21, 2008, the district court entered an

13 order extending the time for trial by six months, up to and including February 8, 2009.

14 After a hearing on the motion to dismiss, the district court reset the trial for November

15 4, 2008. On November 3, 2008, Defendant filed another motion to dismiss, arguing

16 that her right to a speedy trial had been violated. On November 4, 2008, the district

17 court dismissed the case. The total delay amounted to nine months and three days.

18        In a memorandum opinion, the Court of Appeals affirmed the dismissal granted

                                               2
 1 by the district court for violation of Defendant’s right to a speedy trial. State v.

 2 Warren, No. 29,147, slip op. at 2 (N.M. Ct. App. June 9, 2009). The Court of

 3 Appeals held that the length of the delay, the reason for the delay, and Defendant’s

 4 assertion of her right to a speedy trial all weighed slightly against the State. Id. at 2-6.

 5 On the issue of prejudice, the Court of Appeals held that the anxiety to which

 6 Defendant testified was insufficient to constitute undue prejudice, but coupled with

 7 the conditions of release, the prejudice weighed slightly against the State. Id. at 7.

 8 The State then applied to this Court for a writ of certiorari, which was granted on July

 9 15, 2009. State v. Warren, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360. We

10 reverse both the Court of Appeals and the district court and remand this case to the

11 district court for trial.

12         The State argues that dismissal was incorrect under State v. Garza, 2009-

13 NMSC-038, 146 N.M. 499, 212 P.3d 387. In Garza, we abolished

14         the presumption that a defendant’s right to a speedy trial has been
15         violated based solely on the threshold determination that the length of
16         delay is “presumptively prejudicial[,]” . . . [and that] a “presumptively
17         prejudicial” length of delay is simply a triggering mechanism, requiring
18         further inquiry into the Barker [v. Wingo, 407 U.S. 514 (1972)] factors.

19 Id. ¶ 21. In addition, we held that

20         a defendant must show particularized prejudice of the kind against which
21         the speedy trial right is intended to protect. However, if the length of

                                                3
 1        delay and the reasons for the delay weigh heavily in defendant’s favor
 2        and defendant has asserted his right and not acquiesced to the delay, then
 3        the defendant need not show prejudice for a court to conclude that the
 4        defendant’s right has been violated.

 5 Id. ¶ 39. Defendant argues that the district court made a finding of actual prejudice;

 6 therefore, her speedy trial right was violated and the district court did not err in

 7 dismissing the case.

 8        We see no reason to depart from the analysis set forth in Garza. The one-year

 9 presumptive period in Garza should have been applied before the Barker factors were

10 addressed. Although the district judge in this case did not have the benefit of the

11 Garza holding, in Garza we held that the one-year presumptive period would apply

12 retroactively to speedy trial motions to dismiss initiated on or after August 13, 2007.

13 2009-NMSC-038, ¶ 50. We held that the “shift in the applicable guidelines [was]

14 predicated on the 2007 amendment to Rule 5-604 [NMRA], which became effective

15 on August 13, 2007.” Id. Therefore, the one-year presumptive period should apply

16 to Defendant, as her speedy trial motion to dismiss was filed after August 13, 2007.

17        Despite the fact that the one-year presumptive period should have applied,

18 Defendant was given the benefit of having the Barker factors analyzed, and in

19 reviewing these factors, we hold that there was no speedy trial violation. The first

20 three factors do not weigh heavily in Defendant’s favor; therefore, more prejudice

21 would be necessary to show a violation of her speedy trial right. The length of delay

22 was not enough to trigger the Barker factors and should not be weighed against the

                                              4
 1 State. Even applying the pre-Garza standard, a delay of nine months and three days

 2 would not weigh heavily against the State. See 2009-NMSC-038, ¶ 24 (holding that

 3 a ten-month, six-day delay “scarcely crosses the ‘bare minimum needed to trigger

 4 judicial examination of the claim.’” (citation omitted)). The delay in this case was,

 5 at most, negligent, and thus weighs only slightly in Defendant’s favor. See id. ¶¶ 26,

 6 28. The assertion of the right to a speedy trial was “not especially vigorous” and

 7 should weigh only slightly in Defendant’s favor, if at all. Id. ¶¶ 31, 34. As for the

 8 prejudice found by the district court, the facts are insufficient to show actual prejudice.

 9 The special conditions of release cited by the district court are ordinary conditions of

10 release and should not be given special weight. See id. ¶ 37; see also State v. Garcia,

11 110 N.M. 419, 424-25, 796 P.2d 1115, 1120-21 (Ct. App. 1990) (holding that the

12 prejudice suffered by the defendant was “not sufficiently different from the showing

13 any criminal defendant could make to justify dismissing the charge on speedy trial

14 grounds.”). We agree with the Court of Appeals that the anxiety and concern

15 Defendant suffered are not sufficient to show prejudice and hold that the conditions

16 of release do not raise the prejudice to the level necessary to establish a violation of

17 the speedy trial right. We therefore reverse both the Court of Appeals and the district

18 court and remand this case to the district court for trial.

19        IT IS SO ORDERED.


20                                                  _________________________________

                                                5
1                                       EDWARD L. CHÁVEZ, Justice

2 WE CONCUR:



3 __________________________________
4 CHARLES W. DANIELS, Chief Justice



5 __________________________________
6 PATRICIO M. SERNA, Justice



7 __________________________________
8 PETRA JIMENEZ MAES, Justice



 9 __________________________________
10 RICHARD C. BOSSON, Justice




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