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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                                    No. 30,493

10 MARC ALAN SPEARMAN,

11          Defendant-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellant

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 Scott Davidson
21 Albuquerque, NM

22 for Appellee

23                                 MEMORANDUM OPINION
 1 SUTIN, Judge.

 2        The State appeals the dismissal of the charges against Defendant for violation

 3 of his right to a speedy trial. We proposed to reverse the dismissal because the lack

 4 of particularized prejudice to Defendant is not outweighed by the other Barker v.

 5 Wingo, 407 U.S. 514 (1972), factors. Defendant has timely responded to our

 6 proposal. We have considered his arguments and not being persuaded, we reverse.

 7        In our notice, we first concluded that the delay in this case was presumptively

 8 prejudicial, thus requiring an analysis of the Barker factors. [CN 3] Whether the

 9 length of delay is presumptively prejudicial depends on whether the case is simple or

10 complex. See State v. Maddox, 2008-NMSC-062, ¶ 9, 145 N.M. 242, 195 P.3d 1254

11 Defendant argues that the district court’s determination that the case was of simple to

12 intermediate complexity was improper for two reasons.

13        First, he contends that everyone, including the district court judge, had agreed

14 at the hearing that the case was a simple one. He argues that the court inserted

15 intermediate into the final written order without allowing Defendant to address the

16 matter. We have often stated that oral rulings are not the district court’s final ruling

17 and can be changed until there is a written order. State v. Diaz, 100 N.M. 524, 525,

18 673 P.2d 501, 502 (1983) (“It is well established that an oral ruling by the trial court

19 is not a final judgment, and that the trial court can change such ruling at any time


                                              2
 1 before the entry of written judgment.”). Thus, we cannot say that the district court

 2 was prohibited from deciding upon further consideration that the case was of simple

 3 to intermediate complexity. Defendant presented his arguments at the hearing,

 4 therefore, his claim that he was not allowed to address the matter is unsupported by

 5 the record. [MIO 27]

 6        Second, he contends that the district court erred in finding that this case was

 7 anything more than a simple case. He argues that all of the case law indicates that this

 8 case was a simple case. [MIO 30] See State v. Laney, 2003-NMCA-144, ¶ 15, 134

 9 N.M. 648, 81 P.3d 591. Even if we were to agree that the district court erred in

10 determining that this case was more than a simple case, the delay here was still

11 presumptively prejudicial.     Therefore, we will not reverse the district court’s

12 determination on this matter. See Wright v. Brem, 81 N.M. 410, 411, 467 P.2d 736,

13 737 (Ct. App. 1970) (holding that error will not be corrected on appeal if the

14 correction will not change the result).

15        Following the rule set out in State v. Garza, 2009-NMSC-038, ¶ 39, 146 N.M.

16 499, 212 P.3d 387, we proposed to conclude that because Defendant failed to make

17 a particularized showing of prejudice, the other three factors must weigh heavily in

18 Defendant’s favor. We further proposed to conclude that they did not.




                                              3
 1        Defendant argues that he did show sufficient prejudice. He argues that even

 2 though he was not in jail, he nevertheless suffered the same sort of disruptions to his

 3 life that would have been suffered had he been in jail the entire time. He argues that

 4 he lost his job, was unemployed, and had to declare bankruptcy. [MIO 13] These

 5 disruptions, however, are similar to the disruptions that anyone who was under the

 6 cloud of charges might suffer. Maddox, 2008-NMSC-062, ¶ 35 (pointing out that the

 7 focus of our inquiry is on undue prejudice). Garza makes clear that the kind of

 8 prejudice that is important is pretrial incarceration and possible impairment to the

 9 defense. 2009-NMSC-038, ¶¶ 35-36. Neither of those two interests was affected

10 here. We agree with the district court that Defendant did not show any particularized

11 prejudice.

12        As there is no particularized prejudice, the other three factors must weigh

13 heavily against the State. As we pointed out in our notice, the delay “scarcely

14 crosse[d] the bare minimum needed to trigger judicial examination of the claim.” Id.

15 (internal quotation marks and citation omitted). Defendant urges that the length of

16 delay should be viewed along with the reasons for the delay in determining the weight

17 to give it. We recognize that the reasons for “the delay may either heighten or temper

18 the prejudice . . . caused by the length of the delay.” Maddox, 2008-NMSC-062, ¶ 13.




                                              4
 1 However, that does not mean that we must ignore the fact that the length of delay here

 2 was very small.

 3        We proposed in our notice to hold that the delay was negligent and thus would

 4 not weigh heavily against the State. Defendant argues that the delay in this case was

 5 intentional rather than negligent. [MIO 17-19] He bases this contention on the fact

 6 that the district court indicated that the State had been misleading in its first motion

 7 for continuance.     Simply because the State was misleading in its motion for

 8 continuance does not establish that it was deliberately attempting “to delay the trial

 9 in order to hamper the defense.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation

10 marks and citation omitted). Defendant must show that the State “intentionally held

11 back in its prosecution of him to gain some impermissible advantage at trial.” Id.

12 (internal quotation marks and citation omitted). There was no finding by the district

13 court that the State delayed the trial for the purpose of hampering the defense as

14 Defendant has asserted that he was not going to present evidence holding the State to

15 its burden. [MIO 12, 18-19]

16        Rather, as we pointed out in our notice, two of the requested continuances were

17 because either a witness or the prosecutor would not be available. [RP 62, 77] The

18 third continuance was because of the assignment of the case to a different prosecutor.

19 [RP 146] These reasons are generally viewed as negligent rather than intentional


                                              5
 1 delay. Id. ¶ 26. Even the district court’s finding of a pattern of delay cannot be

 2 deemed the sort of intentional delay that would weigh heavily against the State, when

 3 the length of the delay was no more than several months over the presumptively

 4 prejudicial period. We weigh this delay against the State because it was responsible

 5 for all of the delay, and the delay cannot be deemed to be solely for good reasons

 6 where the district court found a pattern of delay.

 7        In our notice, we noted that Defendant did assert his right to a speedy trial, but

 8 found that the assertion was not a forceful one. [CN 5] Defendant argues that he

 9 asserted his right four times, rather than the two that the district court found. He

10 agrees that his pro forma demand at the entry of counsel’s appearance carries little

11 weight. [MIO 19] He then goes on to argue that the practice in the district court is to

12 refrain from premature or repeated assertions of the speedy trial right. [MIO 20]

13 While that may be the case, he does not address the fact that when the State first

14 requested continuances, he did not object.

15        Defendant contends that he did object even though the State’s request indicated

16 that he did not take a position. [RP 135] There is nothing in the record to support his

17 claim that he did object at that time, except the assertions made in his motion to

18 dismiss. [RP 158-59] It was not until Defendant filed his motion to dismiss after

19 sixteen months of delay that he claimed he objected all along to the State’s


                                              6
 1 continuances. In order for the objection to be forceful, the district court needs to be

 2 made aware of it. The record shows that Defendant objected to and the district court

 3 noted the objection to the continuance requested because the case was assigned to a

 4 different prosecutor. [RP 152, 153-55] Thereafter, Defendant filed his motion to

 5 dismiss in which he asserted that he had made numerous objections to the State’s

 6 delay. [RP 157-60] In fact, the record shows only one objection to the numerous

 7 requests of the State. [RP 152] We simply cannot say that there was forceful

 8 assertion of the right to a speedy trial. We do nevertheless weigh this factor in

 9 Defendant’s favor.

10        The length of the delay, the reasons for the delay, and Defendant’s assertion of

11 the right all weigh in his favor. However, because as we pointed out earlier he did not

12 suffer substantial particularized prejudice, those factors must weigh heavily in his

13 favor to warrant dismissal for violation of the right to a speedy trial. In this case, they

14 do not weigh so heavily in Defendant’s favor.             Therefore, we conclude that

15 Defendant’s right to a speedy trial was not violated.

16        Defendant asserts that Garza impermissibly heightens the standard for violation

17 of the right to a speedy trial. [MIO 24] He urges this Court to disregard the case and

18 instead rely strictly on the Barker court’s analysis. This we cannot do. See State v.

19 Travarez, 99 N.M. 309, 311, 657 P.2d 636, 638 (Ct. App. 1983) (stating that the Court


                                                7
 1 of Appeals must follow applicable Supreme Court precedent). Nor will we assign the

 2 case to the general calendar in order to resolve any conflict between the two cases as

 3 we are required to follow New Mexico Supreme Court precedent.

 4        Defendant also urges assignment to the general calendar to resolve factual

 5 disputes arising from the docketing statement and the memorandum in opposition.

 6 While we agree that resolution of factual disputes is one reason for assignment of a

 7 case to general calendar, see Udall v. Townsend, 1998-NMCA-162, ¶ 5, 126 N.M.251,

 8 986 P.2d 341, we do not believe that there are factual disputes here that require

 9 resolution for this case.

10        For the reasons stated herein and in the calendar notice, we reverse the

11 dismissal of charges and remand for reinstatement of the case on the district court’s

12 docket.

13        IT IS SO ORDERED.


14                                         __________________________________
15                                         JONATHAN B. SUTIN, Judge

16 WE CONCUR:


17 __________________________________
18 MICHAEL D. BUSTAMANTE, Judge


19 __________________________________

                                             8
1 TIMOTHY L. GARCIA, Judge




                             9
