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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 33,038

 5 STEVEN PORTILLO,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth H. Martinez, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellant

12 Jorge A. Alvarado, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 VIGIL, Judge.
 1   {1}   The State appeals the district court’s order dismissing this case on the basis of

 2 a violation of the defendant’s right to a speedy trial. This Court issued a notice of

 3 proposed summary disposition, proposing to reverse and remand for a consideration

 4 of the factors outlined in State v. Garza, 2009-NMSC-038, ¶ 39, 146 N.M. 499, 212

 5 P.3d 387. Defendant has filed a memorandum in opposition, which we have duly

 6 considered. As we are unpersuaded by Defendant’s arguments, we reverse and

 7 remand.

 8   {2}   The State suggested below that, for speedy-trial purposes, this case could be

 9 treated as a case of intermediate complexity. [RP 108] Relying upon that

10 characterization and upon State v. Spearman, 2012-NMSC-023, 283 P.3d 272, the

11 district court determined that the seventeen months that had elapsed since Defendant’s

12 indictment were presumptively prejudicial. [RP 120-21] When a case is pending for

13 longer than the presumptively prejudicial period, New Mexico courts must apply the

14 four factors discussed in Garza to determine whether a speedy-trial violation has

15 occurred. Garza, 2009-NMSC-038, ¶ 23. Instead of performing that analysis, the

16 district court in this case relied upon outdated precedents to hold that—in order to

17 avoid a dismissal—the State must rebut a presumption of prejudice arising from the

18 fact that the case was pending longer than fifteen months. [RP 121]




                                               2
 1   {3}   Our notice of proposed summary disposition proposed to reverse in order that

 2 the district court may conduct the proper analysis. [CN 4] In his memorandum in

 3 opposition, Defendant points out that the four Garza factors were discussed in both

 4 the motion to dismiss and in the State’s response thereto. [MIO 2-3; RP 85-91, 106-

 5 113] Defendant also asserts that the district court’s citation to Spearman, which was

 6 decided well after Garza and which discusses the proper application of the four-factor

 7 test for a speedy-trial violation, establishes that the district court properly considered

 8 those factors. [MIO 2]

 9   {4}   The order appealed, however, explicitly recites that, because of the seventeen

10 months of delay, the State was required to “affirmatively establish that the

11 Defendant’s speedy trial rights [had] not been violated,” before concluding that “the

12 State [had] not made the requisite showing to overcome the presumption of

13 prejudice.” [RP 121] These recitations in the dismissal order misstate the law in New

14 Mexico, as Garza explicitly abolished the presumption relied upon by the district

15 court in this case. Garza, 2009-NMSC-038, ¶ 21. Rather than giving rise to an actual

16 presumption, a “presumptively prejudicial” period of delay merely triggers inquiry

17 into the four-factor test for a violation of the right to a speedy trial. Id.

18   {5}   The district court’s reliance upon Spearman for an unrelated proposition—that

19 the presumptive period for a case of intermediate complexity is fifteen months—does


                                                3
1 not overcome the fact that the dismissal order misstates the law and then explicitly

2 relies upon that misstatement of the law. [RP 121] Thus, for the reasons stated here

3 and in our notice of proposed summary disposition, we reverse and remand this case

4 to the district court for a consideration of the factors described in Garza.

5   {6}   IT IS SO ORDERED.


6                                         __________________________________
7                                         MICHAEL E. VIGIL, Judge

8 WE CONCUR:



 9 ___________________________________
10 RODERICK T. KENNEDY, Chief Judge



11 ___________________________________
12 MICHAEL D. BUSTAMANTE, Judge




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