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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    NO. A-1-CA-36390

 5 CLIFTON O’DELL,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Michael Martinez, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.
 1   {1}   Defendant Clifton O’Dell appeals from the district court’s order revoking his

 2 probation. In this Court’s notice of proposed disposition, we proposed to summarily

 3 reverse and remand. The State filed a memorandum in opposition (MIO), which we

 4 have duly considered. Remaining unpersuaded, we reverse and remand.

 5   {2}   In its memorandum in opposition, the State argues that an arrest order signed

 6 by a probation official should constitute an arrest warrant issued by the court, as

 7 contemplated by the statute regarding fugitive status. [See MIO 1-2] The State

 8 contends that, as such, the district court did not err in revoking Defendant’s probation

 9 and finding that he was not entitled to credit for time served because he was a fugitive

10 from justice beginning from the time that the probation official signed the arrest order.

11 [See id.] The State additionally argues that the arrest order had “the same effect as a

12 warrant and should be treated as such for purposes of the statute” [MIO 2] because it

13 is the “legal equivalent” [MIO 8] and that the purpose and intent of the probation

14 violation statute discussing fugitive status indicates that an arrest order should be

15 treated as an arrest warrant [MIO 10-13]. The State does not dispute the facts

16 identified by this Court in our calendar notice.

17   {3}   As we explained in our notice of proposed disposition, “[a] probationer is a

18 fugitive when the [s]tate can prove either that it unsuccessfully attempted to serve a

19 warrant on the probationer, or any such attempt would have been futile.” State v.



                                               2
 1 Sosa, 2014-NMCA-091, ¶ 8, 335 P.3d 764 (emphasis added). [See CN 4] We

 2 reiterated our explanation that

 3         [o]ur cases have made it clear that the state must ordinarily prove that it
 4         issued a warrant for the probationer’s arrest and entered it in the
 5         National Crime Information Center (NCIC) database in order to support
 6         a finding of fugitive status. See [State v. Jimenez, 2004-NMSC-012,]
 7         ¶¶ 3, 15[, 135 N.M. 442, 90 P.3d 461] (holding that the defendant was
 8         not a fugitive when the state obtained a bench warrant but did not
 9         introduce evidence that it entered the warrant in the NCIC database or
10         that it attempted to serve the defendant with the warrant); [State v.]
11         Thomas, [1991-NMCA-131, ¶¶ 17, 21,] 113 N.M. [298], 825 P.2d [231]
12         (holding that the defendant was not a fugitive because the mere issuance
13         of a warrant, without any evidence that the warrant was entered in the
14         NCIC database, and without any showing that the state made any effort
15         to locate or serve the defendant, is insufficient).

16 State v. Neal, 2007-NMCA-086, ¶ 31, 142 N.M. 487, 167 P.3d 935 (emphasis added).

17 [CN 4] We therefore reiterated that both of the requirements for proving fugitive

18 status must be present in order to toll the time a defendant served on probation: the

19 issuance of a warrant for the probationer’s arrest and entry of the warrant in the NCIC

20 database. See id. [See CN 4]

21   {4}   In the present case, at the time of Defendant’s probation revocation on April 21,

22 2016, the term of his probation had expired and no warrant had been issued by the

23 court prior to such expiration. [See MIO 9] Thus, the only way the district court

24 properly revoked the probation was if Defendant was a fugitive, thereby effectively

25 tolling the probationary term. See Sosa, 2014-NMCA-091, ¶ 8. [See CN 3, 5]

26 However, as explained in our calendar notice and above, fugitive status can only be

                                               3
 1 established by the issuance of a warrant by the court, prior to the expiration of the

 2 revocation. See id. ¶¶ 8-9 (stating that “[a] court generally loses jurisdiction to revoke

 3 probation when the term of probation expires, even when the probation violation took

 4 place during the term of probation and a motion to revoke probation was filed prior

 5 to the expiration of the probationary term” and that “a district court retains jurisdiction

 6 for the purpose of applying [NMSA 1978,] Section 31-21-15(C) [(2016)] when a

 7 fugitive probationer is arrested and brought before the court after the expiration of the

 8 original term of probation” (emphasis added)). [See CN 4] No such warrant was issued

 9 by the court prior to the expiration of Defendant’s revocation. [See MIO 9] The State

10 failed to prove both requirements for fugitive status, and, as such, the district court did

11 not have jurisdiction to revoke Defendant’s probation. See Sosa, 2014-NMCA-091,

12 ¶ 8; see also Neal, 2007-NMCA-086, ¶ 31; cf. Jimenez, 2004-NMSC-012, ¶¶ 15-16

13 (determining that, if the state failed to prove the defendant’s fugitive status, then the

14 defendant would be entitled to credit for time served on probation).

15   {5}   As indicated above, the State nevertheless argues that the probation office’s

16 arrest order should constitute a warrant issued by the court. [MIO 8] The State

17 supports its argument with a policy argument that the purpose of the statute discussing

18 fugitive status is to ensure that probationers cannot defeat the trial court’s authority

19 to revoke probation by absconding. [See MIO 9] While we do not disagree that this

20 purpose is identified by this Court in case law, we are unpersuaded that this indicates

                                                4
 1 that a warrant issued by the trial court is not actually necessary to prove fugitive

 2 status. Indeed, the identified purpose itself states that probationers should not defeat

 3 the trial court’s authority by absconding. [MIO 9] See State v. Apache, 1986-NMCA-

 4 051, ¶ 10, 104 N.M. 290, 720 P.2d 709. Contrary to the implication made by the State,

 5 the purpose stated in Apache neither states that the trial court’s authority is defeated

 6 even when the trial court has not issued a warrant, nor states that a defendant is a

 7 fugitive from justice even when no warrant has been issued for his arrest. See id. The

 8 other law cited by the State similarly refers to a warrant issued by the court, and not

 9 an arrest order issued by the probation office. [See MIO 9-13] The State’s policy

10 arguments are best made to the Legislature. See Mira Consulting, Inc. v. Bd. of Educ.,

11 Albuquerque Pub. Sch., 2017-NMCA-009, ¶ 13, 389 P.3d 306 (stating that “policy

12 arguments . . . call for legislative therapy and not judicial surgery” and that “[t]he

13 Legislature knows how to include language in a statute if it so desires” (internal

14 quotation marks and citations omitted)).

15   {6}   We additionally note that the State cites Section 31-21-15 to argue that the

16 Legislature intended an arrest order issued by the probation office to equate to an

17 arrest warrant issued by the court. [See MIO 10-11] The pertinent portion of the

18 statute states that

19         the director [of the field services division of the corrections department
20         or any employee designated by him, see NMSA 1978, § 31-21-5(E)
21         (1991),] may arrest a probationer without warrant or may deputize any

                                               5
 1         officer with power of arrest to do so by giving the officer a written
 2         statement setting forth that the probationer has, in the judgment of the
 3         director, violated the conditions of the probationer’s release. The written
 4         statement, delivered with the probationer by the arresting officer to the
 5         official in charge of a county jail or other place of detention, is sufficient
 6         warrant for the detention of the probationer. Upon the probationer’s
 7         arrest and detention, the director shall immediately notify the court and
 8         submit in writing a report showing in what manner the probationer has
 9         violated the conditions of release.

10 Section 31-21-15(A)(3) (emphasis added). This Statute does not confer fugitive status

11 on a defendant. Rather, it merely gives permission for the arrest and detention of a

12 defendant once the probation office has issued an arrest order. Indeed, we are

13 unpersuaded that the language emphasized by the State, “[t]he written statement,

14 delivered with the probationer by the arresting officer to the official in charge of a

15 county jail or other place of detention, is sufficient warrant for the detention of the

16 probationer,” means that the arrest order is or should suffice as an arrest warrant. [See

17 MIO 11] Rather, the sentence means that the detention of the probation is warranted

18 by the arrest order. Context provides the appropriate definition of “warrant” in the

19 statute.

20   {7}   We therefore conclude that our law is clear that Defendant was not a fugitive

21 from justice at the time his probation was revoked because his probation period had,

22 in fact, expired without a warrant having been issued by the court. See Sosa, 2014-

23 NMCA-091, ¶ 8; Neal, 2007-NMCA-086, ¶ 31; see also Rule 5-208(D); § 31-21-



                                                 6
 1 15(A). Moreover, we again stress that policy arguments raised by the State are best

 2 made to the Legislature. See Mira Consulting, Inc., 2017-NMCA-009, ¶ 13.

 3   {8}   Accordingly, for the reasons stated in our notice of proposed disposition and

 4 herein, we conclude that the district court erred in determining that Defendant was a

 5 fugitive and tolling his probationary period from the date the probation office issued

 6 the arrest order. We therefore reverse the order revoking Defendant’s probation and

 7 remand for further proceedings in accordance with this opinion.

 8   {9}   IT IS SO ORDERED.


 9                                         __________________________________
10                                         LINDA M. VANZI, Chief Judge

11 WE CONCUR:


12 _________________________________
13 MICHAEL E. VIGIL, Judge


14 _________________________________
15 EMIL J. KIEHNE, Judge




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