 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                            NO. 29,818

10 DANIEL BERRY,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Stan Whitaker, District Judge

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

16 for Appellee

17 Kari T. Morrissey
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 FRY, Chief Judge.

22          Defendant appeals from an order revoking his probation. In this Court’s

23 second notice of proposed summary disposition, we proposed to affirm. Defendant

24 has filed a memorandum in opposition pursuant to an extension granted by this
 1 Court. We have considered Defendant’s arguments, and as we are not persuaded

 2 by them, we affirm.

 3        In Defendant’s docketing statement, he made a number of arguments

 4 pursuant to Rule 5-805 NMRA and the due process clause of the United States

 5 Constitution, in which he asserted that his probation revocation should be reversed

 6 because it was not done within the time limits prescribed by Rule 5-805. However,

 7 Defendant’s arguments failed to address the fact that the district court made a

 8 finding that Defendant voluntarily waived his right to commence his initial hearing

 9 within the time frame provided under the rule. [RP 105]

10        This Court issued a notice of proposed summary disposition proposing to

11 conclude that the question of waiver was dispositive of Defendant’s issues on

12 appeal. Defendant’s initial hearing was originally set for March 4, 2009. [RP 30]

13 In the district court, the State asserted that Defendant’s attorney contacted the State

14 and asked that the March 4 setting be vacated. [RP 73] The State represented that

15 it agreed to vacate the setting only if Defendant waived his right under Rule 5-

16 805(G)(1) to have an initial hearing within thirty days from the filing of the motion

17 to revoke probation. [RP 73] The State did not indicate that the waiver was

18 qualified or limited in any way. [RP 73] Although there was no evidence in the

19 record of the stipulated continuance of the March 4, 2009, hearing (as opposed to

20 the stipulated continuance of the April 1, 2009, hearing [RP 48]), and although

21 Defendant’s docketing statement represented that the continuance of the March 4

22 hearing was at the State’s request [DS unnumbered page 1], rather than at

                                              2
 1 Defendant’s, we noted that the district court seemed to have made a factual finding

 2 that the State’s representation of the facts was credible and that on that basis it

 3 found that Defendant had voluntarily waived the time for an initial hearing. [RP

 4 105] The district court noted that there was some disagreement about the length of

 5 the extension of time (perhaps because the later stipulated continuance of the April

 6 1 hearing provided for a specific thirty-day extension of the time limits), but

 7 apparently resolved the factual conflict by determining that the original waiver of

 8 the initial hearing in relation to the continuance of the March 4 hearing was not for

 9 a specific period of time.1

10         In our notice, we propose to hold that because Defendant had not attacked

11 the district court’s factual finding regarding waiver of the time limit for the initial

12 hearing, he would be bound by it. Martinez v. S.W. Landfills, Inc., 115 N.M. 181,

13 186, 848 P.2d 1108, 1113 (Ct. App. 1993) (“[A]n appellant is bound by the

14 findings of fact made below unless the appellant properly attacks the findings, and

15 . . . the appellant remains bound if he or she fails to properly set forth all the

           1
15            We reached this conclusion because if the district court believed that the
16   extension was only for thirty days, it appears that the time to hold an adjudicatory
17   hearing would have expired on June 15. Our calculation was as follows: The State
18   filed its motion to revoke probation on February 12, 2009. [RP 32] Under Rule 5-
19   805(G), the initial hearing should have been held within thirty days, or by March 14.
20   However, as this was a Saturday, the time for the initial hearing would have been
21   extended to March 16. See Rule 5-104(A) NMRA. The stipulated thirty-day
22   extension for the initial hearing then would have run on April 15. The adjudicatory
23   hearing would have had to have been held by sixty days after the initial hearing, which
24   would have been June 14, but as this was a Sunday, the deadline would have run on
25   Monday, June 15.

                                               3
 1 evidence bearing upon the findings.”). The effect of the waiver of the deadline for

 2 the initial hearing would necessarily push the time back for the adjudicatory

 3 hearing, since the time limit for the adjudicatory hearing is set in relation to the

 4 time of the initial hearing. See Rule 5-805(H) (“The adjudicatory hearing shall

 5 commence no later than sixty (60) days after the initial hearing is conducted.”); see

 6 also Rule 5-805(J) (providing that the time limits for commencement of the

 7 adjudicatory hearing may be waived). Therefore, we proposed to find no error in

 8 the district court’s determination that the time limit for the initial hearing was

 9 waived and that the adjudicatory hearing need not have been held until sixty days

10 after the initial hearing was actually held.

11        In Defendant’s memorandum in opposition, he argues that Defendant and

12 the State agreed that they would vacate the initial hearing, would not have any

13 initial hearing at all, and would simply schedule an adjudicatory hearing. [MIO 2]

14 Defendant argues that once he waived his right to an initial hearing, the State had a

15 total of ninety days from the date of the motion to revoke Defendant’s probation to

16 hold an adjudicatory hearing because Rule 5-805 allows thirty days to hold an

17 initial hearing and then sixty days from the initial hearing for the adjudicatory

18 hearing. [MIO 4] Defendant then makes a number of factual arguments intended

19 to demonstrate that his interpretation of his agreement with the State is reasonable.

20        While we agree with Defendant that his interpretation of his agreement with

21 the State is a reasonable one—that the initial hearing would be waived altogether

22 and that the waiver of the initial hearing would leave in place the ninety-day time

                                              4
 1 limit for an adjudicatory hearing that exists when an initial hearing is actually

 2 held—the parties never put this understanding into writing, and it is not the only

 3 reasonable interpretation of their agreement. Although Defense counsel apparently

 4 explained her understanding of the agreement to the district court, counsel for the

 5 State represented that the State had a different understanding, which was that

 6 Defendant had simply waived the time for the initial hearing indefinitely and that

 7 the initial hearing would still be held either as a separate hearing or in the same

 8 hearing as the adjudicatory hearing. [MIO 3, 6; RP 73]

 9        Contrary to Defendant’s assertion, the time for an adjudicatory hearing in

10 Rule 5-805(H) is not actually ninety days from the date of the motion to revoke

11 probation, but sixty days from an initial hearing. Here, Defendant waived his right

12 to have an initial hearing within the time provided under Rule 5-805(G), and never

13 put in writing any agreement about what effect this would have on the sixty-day

14 period provided in Rule 5-805(H), which is usually triggered by the initial hearing.

15 Where there was no dispute that Defendant waived the time for his initial hearing

16 and there were conflicting representations from counsel for Defendant and counsel

17 for the State about what effect they believed such a waiver would have on the time

18 for the adjudicatory hearing, we defer to the district court’s determination that

19 Defendant’s waiver of his right to have an initial hearing was for an indefinite

20 period of time. See Griffin v. Guadalupe Med. Ctr., Inc., 1997-NMCA-012, ¶ 22,

21 123 N.M. 60, 933 P.2d 859 (“When the trial court’s findings of fact are supported

22 by substantial evidence, . . . refusal to make contrary findings is not error.”).

                                               5
 1 Because Rule 5-805(H) does not require an adjudicatory hearing to be held until

 2 sixty-days after an initial hearing and because the adjudicatory hearing in this case

 3 was held within sixty days of the initial hearing, we hold that the district court did

 4 not err in refusing to dismiss the motion to revoke Defendant’s probation.

 5 CONCLUSION

 6        Therefore, for the reasons stated in this opinion and the second notice of

 7 proposed summary disposition, we affirm.

 8        IT IS SO ORDERED.



 9

10                                         CYNTHIA A. FRY, Chief Judge

11 WE CONCUR:



12
13 MICHAEL E. BUSTAMANTE, Judge



14
15 TIMOTHY L. GARCIA, Judge




                                              6
