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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

 9 v.                                                                                    NO. 28,654

10 RONALD DARBY,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Don Maddox, 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 Hugh W. Dangler, Chief Public Defender
20 Eleanor Brogan, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant
 1                             MEMORANDUM OPINION

 2 CASTILLO, Judge.

 3        Defendant appeals from the district court’s order denying his motion to dismiss

 4 the State’s petition to revoke his probation. Defendant was taken into custody on a

 5 suspected probation violation where he remained incarcerated for fifteen months

 6 before the district court held a probation revocation hearing. Defendant argues that

 7 the untimely hearing violated his right to due process and that, as a result, the petition

 8 to revoke his probation should have been dismissed. Because Defendant has not

 9 shown that under these unique circumstances he was prejudiced by the delay, we

10 affirm.

11 BACKGROUND

12        Defendant was convicted, pursuant to a plea agreement, for two counts of both

13 burglary and larceny, and sentenced to seven and one-half years imprisonment with

14 three years suspended, followed by three years of supervised probation to run

15 concurrent with two years of parole. After serving the four and one-half years in

16 prison, on December 21, 2006, Defendant was released on supervised probation.

17 Thirty-nine days later, Defendant was terminated from a residential program, which

18 the probation agreement required him to complete, for violating a major program rule.

19 The same day, January 29, 2007, Defendant was arrested and transported to the


                                               2
 1 Lincoln County Detention Center. Almost a month later, on February 26, 2007, the

 2 Probation and Parole Division of the Corrections Department submitted a report of

 3 Defendant’s violation to the district court. The report noted that Defendant had been

 4 discharged from another treatment program on January 3, 2007, for “displaying

 5 behavior not conducive to the program.” On May 16, 2007, the Hobbs District

 6 Attorney’s Office received a faxed copy of the probation violation report. On May

 7 24, 2007, the State filed a motion to revoke Defendant’s probation and a request for

 8 an arrest warrant. That day, the district court issued a bench warrant for his arrest,

 9 even though Defendant had been incarcerated for the parole violation for four months

10 by that time. On January 8, 2008, Defendant filed a motion to dismiss revocation

11 proceedings for the State’s failure to commence revocation of his probation in a timely

12 manner as required by Rule 5-805 NMRA and to quash the bench warrant filed in

13 May 2007.

14        On March 25, 2008, the district court scheduled Defendant’s arraignment on the

15 probation violation. On March 31, 2008, the date of the arraignment, Defendant’s

16 counsel entered an appearance and a demand for a timely probation hearing under

17 NMSA 1978, Section 31-21-15(B) (1989). On April 1, 2008, defense counsel filed

18 a motion to dismiss for the failure to prosecute, pursuant to Rule 5-805. The district

19 court held a hearing on Defendant’s motion to dismiss on April 14, 2008, fifteen


                                              3
 1 months after Defendant’s incarceration for the alleged probation violation. At the

 2 hearing on his motion, Defendant admitted to the allegations that he violated the terms

 3 of his probation. The district court denied Defendant’s motion to dismiss, but it did

 4 not revoke Defendant’s probation. The district court released Defendant from custody

 5 that day on supervised probation under his original probation terms and gave him

 6 credit for time served successfully on probation. Defendant appeals the district court’s

 7 denial of his motion to dismiss.

 8 DISCUSSION

 9         At the time the State filed the motion to revoke Defendant’s probation, the

10 controlling law in effect was Section 31-21-15. A week after the motion to revoke

11 was filed, the Supreme Court established specific time limits for holding an

12 adjudicatory hearing on the State’s allegation of a probation violation as embodied in

13 Rule 5-805(H). We analyze this case under Section 31-21-15 and the scant case law

14 interpreting the statute. Section 31-21-15 does not contain any specific time for

15 holding the probation revocation hearing. It permits the district court to issue a

16 warrant for the arrest of a probationer and is intended to provide the probationer notice

17 to appear to answer to the charge of the violation. See § 31-21-15(A)(1) & (2).

18 Section 31-21-15(A)(3) & (B) states in pertinent part:

19                    (3) . . . Upon arrest and detention, the director [of the
20        Corrections Department] shall immediately notify the court and submit

                                               4
 1        in writing a report showing in what manner the probationer has violated
 2        the conditions of release.

 3              B.      The court shall then hold a hearing, which may be informal,
 4        on the violation charged.

 5        This Court has interpreted the language in subsection B to be “a mandatory duty

 6 imposed upon the court to hold a revocation hearing immediately after (1) the

 7 probationer is taken into custody . . . or (2) a notice to appear to answer a charge of

 8 violation is personally served upon the probationer . . . or (3) the probationer is

 9 arrested[,]” and the violation report is filed in district court. State v. Chavez (Chavez

10 I), 94 N.M. 102, 104, 607 P.2d 640, 642 (Ct. App. 1979). In Chavez I, this Court

11 concluded that the seven-month delay after the defendant’s arrest was unreasonable

12 and denied the defendant procedural due process. See Chavez I, 94 N.M. at 105, 607

13 P.2d at 643.

14        We later questioned the validity of Chavez I, explaining that the opinion was

15 “unduly restrictive as a general proposition, and contrary to prior New Mexico

16 decisions on the question of delay in the absence of any showing of prejudice to the

17 defendant resulting from delay not occasioned by [the] defendant himself.” State v.

18 Sanchez, 94 N.M. 521, 524, 612 P.2d 1332, 1335 (Ct. App. 1980). Sanchez clarified

19 that a probation revocation hearing “is not a trial on a criminal charge,” but rather “a

20 hearing to determine whether, during the probation or any parole period, the defendant


                                               5
 1 has conformed to or breached the course of conduct outlined in the probation or parole

 2 order.” Id. at 523, 612 P.2d at 1334. As a result, the right afforded to the criminally

 3 accused to a speedy, public trial is not applicable. Id. Thus, “[t]he issue before us is

 4 not one of speedy trial, but due process.” Id. Also,“the full panoply of rights owed

 5 a criminal defendant under the due process clause” is not applicable to these probation

 6 revocation proceedings. Id. (internal quotation marks and citation omitted).

 7        In State v. Chavez (Chavez II), 102 N.M. 279, 282, 694 P.2d 927, 930 (Ct. App.

 8 1985), this Court articulated more defined factors to be considered in determining

 9 whether a probation revocation hearing satisfied the less than complete due process

10 rights afforded probationers. Not unlike the speedy trial factors, we consider the

11 length of delay, the reasons for the delay, the prejudice to the defendant, and the

12 defendant’s failure to request an earlier hearing or his contribution to the delay. See

13 id. (emphasizing the requirement of showing delay with resulting prejudice and stating

14 that “[t]he burden of showing actual prejudice by delay in the initiation or prosecution

15 of proceedings to revoke probation rests upon the probationer”).

16        In the present case, Defendant was in custody for fifteen months before his

17 probation revocation hearing. As we recounted above, extraordinary delays in many

18 steps of the proceedings below followed Defendant’s arrest. We note, however, that

19 Defendant did not assert his due process right to a timely hearing until December 11,


                                              6
 1 2007, at the earliest, and January 8, 2008, at the latest. This request was made nearly

 2 a year after his arrest, past the time that the most appropriate remedy of a speedy

 3 hearing could have been granted. Of primary importance to this case, however, is the

 4 unique absence of any recognized factual assertion of prejudice to Defendant arising

 5 out of the extraordinary delay.

 6        Although our case law gives little guidance on what constitutes a proper

 7 showing of prejudice, it is clear that Defendant’s claim of prejudice is speculative, at

 8 best. Defendant argues that he was prejudiced by the delay because his extended

 9 incarceration diminished the time for him to complete the one-year drug treatment

10 program required by his probation agreement. Even assuming this could constitute

11 a valid claim of prejudice, Defendant provides this Court with no reason to presume

12 that the remaining probationary period—at least eighteen months—is insufficient to

13 complete a one-year program. Also, Defendant does not refer this Court to any

14 authority indicating that a truncated probationary period that is adequate to satisfy a

15 condition of probation is a cognizable form of prejudice.           In addition, since

16 Defendant’s re-release on probation following the revocation hearing, he has given

17 this Court no indication that the State has pursued revocation for his inability to

18 complete the year-long drug treatment program.          See Rule 12-209(C) NMRA

19 (permitting the parties to modify the record to reflect any events affecting the


                                              7
 1 appellate claims). Accordingly, we are not persuaded that Defendant suffered

 2 prejudice under the unique facts of this case. Cf. Moody v. Daggett, 429 U.S. 78, 88

 3 n.9 (1976) (stating that the loss of an inmate’s eligibility for rehabilitative services

 4 does not activate due process).

 5        A claimed deprivation of procedural due process caused by delay generally

 6 requires a showing that the delay resulted in prejudice to the defense. See, e.g., State

 7 v. Palmer, 1998-NMCA-052, ¶ 4, 125 N.M. 86, 957 P.2d 71 (stating that to prove a

 8 procedural due process violation from pre-indictment delay “the defendant must show

 9 prejudice to his or her defense as a result of the delay and . . . that the state

10 intentionally caused the delay in order to gain a tactical advantage”); see also State v.

11 DeBorde, 1996-NMCA-042, ¶ 14, 121 N.M. 601, 915 P.2d 906 (holding that due

12 process requires a showing that a claimed discovery violation in probation revocation

13 proceedings prejudiced the defense and thus the outcome of the trial); Chavez II, 102

14 N.M. at 282, 694 P.2d at 930 (requiring a showing of “actual prejudice” by the delay

15 in the pursuit of probation revocation proceedings). Even where the constitutional

16 right to a speedy trial is being enforced, our case law expresses overriding concern

17 with the “actual prejudice” that delay may cause to a defense. See, e.g., State v.

18 Garza, 2009-NMSC-038, ¶¶ 12, 22, 36-40, 146 N.M. 499, 212 P.3d 387. Therefore,

19 we examine whether Defendant has shown that the delay prejudiced his ability to


                                               8
 1 contest revocation, and conclude that he has not.

 2        As we stated above, Defendant admitted to the State’s allegation that he

 3 violated probation at the hearing on his motion to dismiss and waived his right a

 4 hearing on the allegation. As a result, we see no manner in which the delay prejudiced

 5 Defendant’s ability to contest revocation, and Defendant makes no argument that he

 6 could have shown prejudice to his defense if he chose to contest it.

 7        Defendant argues that the extraordinary length of delay in holding the

 8 adjudication hearing in this case is sufficient to warrant a dismissal of the State’s

 9 motion to revoke probation. Other than the procedural due process claim discussed

10 above, Defendant failed to assert any other legal basis in support of this theory. In

11 Sanchez, we recognized New Mexico’s commitment to protect a defendant under the

12 theory of waiver from unreasonable delays between arrest and subsequent probation

13 revocation hearings. Sanchez, 94 N.M. at 524, 612 P.2d at 1335 (recognizing that an

14 unreasonable delay would result, as a matter of law, in the state’s waiver of the

15 defendant’s violations.) Defendant failed to raise the theory of a possible waiver by

16 the State in the lower court proceedings, and we will not address this issue for the first

17 time on appeal. State v. Jade G., 2007-NMSC-010, ¶ 24, 141 N.M. 284, 154 P.3d 659

18 (acknowledging the general rule that “propositions of law not raised in the trial court

19 cannot be considered sua sponte by the appellate court” (internal quotation marks and


                                               9
 1 citation omitted)).

 2        Given the absence of any prejudice to the adjudication of Defendant’s probation

 3 violation, we conclude that the untimely probation violation hearing in this case did

 4 not violate Defendant’s procedural due process rights. We do not intend to understate

 5 the significance of the State’s delay in prosecuting its allegation of a probation

 6 violation or give license to the State to ignore a defendant’s rights to an immediate

 7 adjudication of an alleged probation violation. Given the uniqueness of the relief the

 8 district court granted Defendant and the Supreme Court’s subsequent adoption of Rule

 9 5-805 mandating specific time lines for probation revocation proceedings, we expect

10 these circumstances will not recur. However, we take this opportunity to remind the

11 State to respect the numerous procedural factors that normally arise to establish

12 prejudice where a lengthy delay occurs in the adjudication of an alleged probation

13 violation.

14 CONCLUSION

15        Although Defendant endured extraordinary delay in the probation revocation

16 proceedings, he has not established prejudice under the circumstances. As a result,

17 we affirm the district court’s rulings.

18        IT IS SO ORDERED.




                                             10
1                                 ________________________________
2                                 CELIA FOY CASTILLO, Judge


3 I CONCUR:



4 __________________________________
5 TIMOTHY L. GARCIA, Judge




6 MICHAEL E. VIGIL, Judge (specially concurring)




                                    11
 1 VIGIL, Judge (specially concurring).

 2        Defendant was arrested for an alleged violation of his probation and held in

 3 prison on that allegation for more than fourteen months before he was allowed to see

 4 a judge on the charge. I write separately to emphasize that our opinion in this case

 5 should not be construed, explicitly or implicitly, to condone such conduct. Our

 6 opinion correctly decides the only issue presented, which is whether Defendant was

 7 deprived of his constitutional right to a speedy hearing on the motion to revoke

 8 probation. However, the facts of this case cannot be ignored.

 9        I would have thought that in this day and age in New Mexico, such conduct

10 would be considered intolerable and contrary to our constitutional concepts of ordered

11 liberty. Perhaps it is easier to say “no harm, no foul” because Defendant in the end

12 received credit for all the time he was imprisoned, and he was released from prison

13 when he finally received a merits hearing. Moreover, even as we file this opinion,

14 Defendant’s term of probation has already expired. However, once we as a society

15 allow a citizen to be arrested and kept in jail for fourteen months before being allowed

16 to see a judge on the charge for which he or she was arrested, we begin a dangerous

17 journey, endangering our precious constitutional rights and freedoms. Ignoring what

18 happened in this case is the first step of that journey.

19        I therefore write separately, recognizing that we have not received briefs from


                                              12
 1 either side on the question and that the issue I separately address has not been argued

 2 to us in this case.

 3 FACTS

 4        The Lea County District Court sentenced Defendant to the Department of

 5 Corrections for a prison term of seven and one-half years, with all of the sentence

 6 suspended except for four and one-half years, followed by two years of parole. The

 7 judgment and sentence further directed that upon release from confinement, Defendant

 8 be placed on supervised probation for a period of three years, to be served concurrent

 9 with Defendant’s parole.

10        After serving the term of imprisonment, Defendant was placed under supervised

11 probation for three years, beginning on December 21, 2006, and ending on December

12 20, 2009. On February 28, 2007, Defendant’s probation officer prepared a report of

13 probation violation alleging that Defendant violated a condition of his probation on

14 January 29, 2007. Defendant was arrested for the alleged probation violation on that

15 same day, January 29, 2007, and taken to the penitentiary. Defendant remained in the

16 penitentiary from the time he was arrested on January 29, 2007, until April 1, 2008,

17 when he was taken to the Lea County Detention Center.

18        No further action was taken to bring the matter before a court until the report

19 of probation violation was sent to the district attorney in May 2007. On May 24,



                                             13
 1 2007, the State finally filed a motion to revoke Defendant’s probation, and an arrest

 2 warrant for the alleged probation violation was issued the same day. It would not be

 3 served for almost another year. On December 11, 2007, Defendant filed a pro se

 4 request for a hearing on the motion to revoke probation and, on January 8, 2008,

 5 Defendant filed a pro se motion to dismiss and to quash the arrest warrant, together

 6 with a request for hearing. Defendant was in prison when he prepared and filed these

 7 pleadings. The basis for the motion to dismiss was that the State had failed to timely

 8 commence the revocation proceedings as required by Rule 5-805. Defendant was not

 9 arrested on the May 24, 2007 bench warrant until March 22, 2008.

10        An arraignment on the motion to revoke probation was finally held on March

11 31, 2008, and with the advice of appointed counsel, Defendant denied the allegation.

12 This March 31, 2008 hearing was the first time Defendant was ever brought to court

13 to appear before a judge on the allegation he violated probation, since being arrested

14 on January 29, 2007, for allegedly violating a condition of his probation. This also

15 appears to be the first time Defendant had an opportunity to confer with an attorney

16 about the allegation. It is a time span slightly in excess of fourteen months. The

17 merits hearing was then held two weeks later on April 14, 2008.

18 DISCUSSION

19        In Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the United States Supreme


                                             14
 1 Court recognized that probation revocation, like parole revocation, results in a loss of

 2 liberty. Accordingly, the Court held, “[A] probationer, like a parolee, is entitled to a

 3 preliminary and a final revocation hearing, under the conditions specified in Morrissey

 4 v. Brewer, [408 U.S. 471 (1972)].” In Morrissey, the Court recognized that while

 5 parole revocation does not deprive an individual of the absolute liberty to which every

 6 citizen is entitled, but only of the conditional liberty which depends on satisfying

 7 parole conditions, it nevertheless results in a serious loss of liberty. Id. at 480.

 8        The Court therefore held that minimal due process requires “that some minimal

 9 inquiry be conducted at or reasonably near the place of the alleged parole [or

10 probation] violation or arrest and as promptly as convenient after arrest while

11 information is fresh and sources are available.” Id. at 485 (emphasis added). The

12 purpose of such a hearing is in the nature of a preliminary hearing “to determine

13 whether there is probable cause or reasonable ground to believe that the arrested

14 parolee [or probationer] has committed acts that would constitute a violation of parole

15 conditions.” Id.

16        Further, “the determination that reasonable ground exists for revocation of

17 parole [or probation] should be made by someone not directly involved in the case”

18 because the supervising parole or probation officer who is directly involved in making

19 recommendations “cannot always have complete objectivity in evaluating them.” Id.



                                              15
 1 at 486. At the preliminary hearing before this independent officer,

 2        [T]he parolee [or probationer] should be given notice that the hearing
 3        will take place and that its purpose is to determine whether there is
 4        probable cause to believe he has committed a parole [or probation]
 5        violation. The notice should state what parole [or probation] violations
 6        have been alleged. At the hearing the parolee [or probationer] may
 7        appear and speak in his own behalf; he may bring letters, documents, or
 8        individuals who can give relevant information to the hearing officer. . . .

 9        The hearing officer shall have the duty of making a summary, or digest,
10        of what occurs at the hearing in terms of the responses of the parolee and
11        the substance of the documents or evidence given in support of parole [or
12        probation] revocation and of the parolee’s [or probationer’s] position.
13        Based on the information before him, the officer should determine
14        whether there is probable cause to hold the parolee [or probationer] for
15        the final decision of the parole board [or court] on revocation. Such a
16        determination would be sufficient to warrant the parolee’s [or
17        probationer’s] continued detention and return to the state correctional
18        institution           pending          the      final       decision.

19 Id. at 486-87 (emphasis added). Following the preliminary hearing, due process

20 entitles a parolee or probationer to a final hearing for a “final evaluation of any

21 contested relevant facts and consideration of whether the facts as determined warrant

22 revocation.” Id. at 488.

23        The requirement of Gagnon and Morrissey for a prompt determination of

24 probable cause to justify continued imprisonment has been repeatedly reiterated by

25 the Supreme Court in the context of a warrantless arrest. In Gerstein v. Pugh, 420

26 U.S. 103, 105-06 (1975), Florida procedures allowed a person arrested without a

27 warrant to remain in jail for thirty days or more without a judicial determination of

                                              16
 1 probable cause. Recognizing that “[t]he consequences of prolonged detention may be

 2 more serious than the interference occasioned by arrest,” id. at 114, the United States

 3 Supreme Court declared the Florida procedures unconstitutional, stating that a state

 4 “must provide a fair and reliable determination of probable cause as a condition for

 5 any significant pretrial restraint of liberty, and this determination must be made by a

 6 judicial officer either before or promptly after arrest.” Id. at 125 (emphasis added)

 7 (footnote omitted). Significant to our case, the Supreme Court in Gerstein discussed

 8 the preliminary hearing requirement established by Gagnon and Morrissey and noted

 9 that probation and parole revocation proceedings “may offer less protection from

10 initial error than the more formal criminal process[.]” Gerstein, 420 U.S. at 122 n.22.

11 Thus, the Supreme Court suggested there is a greater need for a prompt determination

12 of probable cause in a probation violation context.

13        In County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the Supreme

14 Court held that providing a judicial determination of probable cause within forty-eight

15 hours of arrest will, generally, comply with the Gerstein promptness requirement.

16 However, the Court also said that if the arrested person could establish that the

17 probable cause determination was delayed unreasonably, the constitution would be

18 violated even if the hearing was held within forty-eight hours of arrest. Riverside, 500

19 U.S. at 56. “Examples of unreasonable delay are delays for the purpose of gathering



                                              17
 1 additional evidence to justify the arrest, a delay motivated by ill will against the

 2 arrested individual, or delay for delay’s sake.” Id.

 3        Thus, it can hardly be questioned that due process requires that a probationer

 4 who is arrested and charged with violating probation be promptly brought before a

 5 judge. Courts in other cases have recognized and applied this fundamental principle.

 6 All that is necessary here is to point out a few.

 7        In State v. Flemming, 907 P.2d 496 (Ariz. 1995) (in banc), the defendant was

 8 on probation on a Maricopa County case when he was arrested in Pinal County. Id.

 9 at 498. Based on the Pinal County arrest, the Maricopa County probation department

10 filed a motion to revoke probation and, because of the defendant’s status as a

11 probationer, he was held in the Pinal County jail without bond. Id. Defendant entered

12 into a plea agreement on the Pinal County charges, and he was transported to the

13 department of corrections to begin serving his prison term. Id. Concerned that he

14 might become eligible for parole and find the Maricopa matter still pending, the

15 defendant requested a hearing. Id. The Maricopa County district attorney then

16 petitioned to bring the defendant before the court on the probation violation. Id.

17 However, this was more than twenty-seven months after the petition to revoke

18 probation was originally filed. Id. The Arizona Supreme Court held that its rule

19 governing time periods to hold a probation revocation hearing and the defendant’s



                                              18
 1 constitutional due process right to a prompt hearing were both violated. Id. at 501-02.

 2 Significantly, the court also concluded that the defendant’s incarceration on the Pinal

 3 County charges did not negate his constitutional right to a prompt hearing on the

 4 Maricopa County probation violation charge. Id. at 502-03.

 5        Similarly, the Appellate Court of Illinois held that a four-year delay in

 6 proceeding on a petition to revoke the defendant’s probation while he was

 7 incarcerated on another offense violated due process. People v. White, 653 N.E.2d

 8 426, 427-28 (Ill. App. Ct. 1995); see also People v. Bredemeier, 805 N.E.2d 261, 265-

 9 66 (Ill. App. Ct. 2004) (affirming the trial court order dismissing the petition to revoke

10 probation because due process was violated where the state delayed prosecuting the

11 petition to revoke probation for six years while the defendant was in prison in another

12 state, the state knew where the defendant was, the defendant had asked for a hearing,

13 and the defendant lost the opportunity to have his out-of-state sentence and sentence

14 for the probation violation to be served concurrently); State v. Curtis, 209 P.3d 753,

15 758, 763 (Kan. Ct. App. 2009) (concluding that delay in pursuing a probation

16 violation adjudication violates due process in Kansas where the delay is unreasonable

17 and prejudices the defendant, or, alternatively, where there is an indication the state

18 has waived its right, and holding that a twenty-one-month delay in adjudicating the

19 probation violation charge constituted a violation of due process); State v. Martens,



                                               19
 1 338 So. 2d 95, 96-97 (La. 1976) (concluding revocation of probation was improper

 2 where the motion to revoke probation was filed on the last day of the defendant’s

 3 probation, the state took no action to serve the warrant for nine months, although the

 4 defendant was in custody on a drug conviction, and the state did not seek a probation

 5 violation hearing until after the defendant completed serving his sentence on the drug

 6 conviction).

 7         The record indicates that Defendant was returned to prison for a parole

 8 violation. However, the record also indicates that the same act constituted the parole

 9 violation as the probation violation. Defendant was arrested for the probation

10 violation on the same day that the act occurred and, within a month, Defendant’s

11 probation officer prepared a probation violation report. The fact that Defendant may

12 have been imprisoned on a parole violation does not excuse the failure to proceed on

13 the probation violation. If the State wished to proceed with a probation violation case,

14 it had an obligation to comply with due process as to that case. Fleming, White,

15 Bredemeier, and Martens, discussed above, all teach that a defendant’s incarceration

16 on one matter will not excuse complying with due process on a probation violation

17 case.

18         There is no New Mexico case directly on point. In Chavez I, the defendant was

19 arrested on the motion to revoke probation violation on July 22, 1978, and following



                                              20
 1 a hearing on a motion for release, the defendant was released on August 2, 1978, on

 2 terms and conditions pending resolution of the motion to revoke probation. 94 N.M.

 3 at 102-03, 607 P.2d at 640-41. In Chavez II, the defendant was arrested on the motion

 4 to revoke probation on January 13, 1984, and the court set a bond which the defendant

 5 was unable to post. 102 N.M. at 281, 694 P.2d at 929. The evidentiary hearing on the

 6 motion to revoke probation was then held the following month on February 10, 1984.

 7 Id. In this case, Defendant was held in prison for over fourteen months before he was

 8 allowed to see a judge on the probation violation charge. Under the circumstances,

 9 it seems that the following language from State v. Murray would seem applicable:

10        If there has been unreasonable delay in the issuance and execution of a
11        warrant against a probation violator whose whereabouts is known or
12        could be known with reasonable diligence, and the violator’s return is
13        possible, the probation authorities, as a matter of law, have waived [the]
14        defendant’s violations.

15 81 N.M. 445, 450, 468 P.2d 416, 421 (Ct. App. 1970) (citation omitted).

16        It is fundamental that a prolonged detention following an arrest without an

17 appearance before a judge or magistrate violates due process. I respectfully submit

18 that the conditional liberty of a probationer is subject to the same dictates of due

19 process. The adoption of Rule 5-805 by our Supreme Court should prevent in future

20 cases what occurred here. However, as our opinion points out, this rule was not yet

21 in effect for Defendant’s case.



                                             21
1 CONCLUSION

2        For the reasons stated, I therefore specially concur as to the issue that was

3 brought before us in this case.




4                                        __________________________________
5                                        MICHAEL E. VIGIL, Judge




                                           22
