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

 2 Opinion Number: ____________

 3 Filing Date: December 1, 2014

 4 NO. 32,909

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 THADDEUS CARROLL,

 9         Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Judith K. Nakamura, District Judge


12   Gary K. King, Attorney General
13   Santa Fe, NM
14   Ralph E. Trujillo, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17   Law Offices of the Public Defender
18   Jorge A. Alvarado, Chief Public Defender
19   Santa Fe, NM
20   Stephen J. Forsberg, Assistant Appellate Defender
21   Albuquerque, NM

22 for Appellant
 1                                       OPINION

 2 WECHSLER, Judge.

 3   {1}   Defendant Thaddeus Carroll appeals his conviction for driving under the

 4 influence of alcohol (DWI).        Defendant was tried in the Bernalillo County

 5 Metropolitan Court and appealed to the district court, which affirmed. Defendant

 6 makes three arguments in favor of reversal: (1) that his conviction violated Rule 7-

 7 506 NMRA, which requires that a defendant be tried within 182 days of the latest of

 8 several triggering events; (2) that the metropolitan court improperly admitted the

 9 testimony of a prosecution witness; and (3) that the evidence was insufficient to

10 sustain his conviction.

11   {2}   The crux of Defendant’s argument regarding Rule 7-506 is that Defendant did

12 not receive adequate notice of his trial. Defendant was mailed notice six days prior

13 to the proceeding. The trial was scheduled for the very last day possible under Rule

14 7-506, and Defendant did not appear. Because Defendant missed the court date, the

15 metropolitan court chose to issue a bench warrant for his arrest. The effect of the

16 warrant was to toll the calendar under Rule 7-506 and, upon Defendant’s surrender

17 to the jurisdiction of the court, provide an additional 182 days for trial. Defendant

18 argues that he did not receive sufficient notice of his trial date, that the warrant was

19 improper, and, therefore, the case should have been dismissed pursuant to Rule 7-506.
 1 We agree with Defendant that the notice provided of his trial date—six days by

 2 mail—was not sufficient and, therefore, we reverse and remand with instructions to

 3 the district court to dismiss this case with prejudice. We do not reach the other

 4 arguments.

 5 BACKGROUND

 6   {3}   Defendant was arrested on April 12, 2008 for aggravated DWI, first offense,

 7 and arraigned on April 14, 2008. The trial setting was continued twice because the

 8 State was not ready to proceed—first, because the arresting officer was on vacation

 9 and, second, because the officer did not appear at the proceeding. Noting that the

10 State was twice unready to proceed and that the State did not make available

11 witnesses for pre-trial interviews, Defendant moved to dismiss the case at the second

12 setting. The metropolitan court granted the motion and dismissed the case without

13 prejudice. That was on August 21, 2008.

14   {4}   On October 8, 2008, the State re-filed the dismissed complaint against

15 Defendant. The metropolitan court set the trial for October 14, 2008, the last possible

16 date to commence a trial under Rule 7-506. The metropolitan court sent both the

17 notice of the re-filing and the new trial setting to Defendant by mail. These mailings

18 were sent on October 8, 2008, six days prior to the trial date. Although Defendant’s

19 attorney was present at the trial, Defendant did not attend the proceeding. Again the


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 1 State was not ready to proceed because the complaining officer did not appear. In

 2 consequence of Defendant’s absence, the metropolitan court issued a bench warrant.

 3 Two days later, Defendant filed a motion to quash the bench warrant and dismiss the

 4 case pursuant to Rule 7-506. Defendant argued that six days notice by mail was

 5 insufficient and asserted that he only received the notice on the day of the proceeding.

 6 The metropolitan court denied Defendant’s motion. Subsequently, Defendant filed

 7 a motion requesting that the bench warrant be cancelled or quashed and included an

 8 apology for his failure to appear. The metropolitan court granted this motion and

 9 cancelled the warrant.

10   {5}   At the trial setting on February 4, 2009, Defendant again argued that the case

11 should be dismissed pursuant to Rule 7-506. Defendant pointed out that ten days

12 notice is required for service of a summons, with three additional days for service by

13 mail.    The metropolitan court stated that Rule 7-205 NMRA—“the ten-day

14 stuff”—did not apply to trials. The metropolitan court added that it could “set a trial

15 the very next day [after notice.]” It denied Defendant’s renewed motion to dismiss

16 pursuant to Rule 7-506. Defendant was tried and found guilty of DWI, first offense.

17 Defendant appealed to the district court, which affirmed.




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 1 STANDARD OF REVIEW

 2   {6}   The application of Rule 7-506 to the facts of this case is a question of law that

 3 we review de novo. State v. Maestas, 2007-NMCA-155, ¶ 9, 143 N.M. 104, 173 P.3d

 4 26; see also State v. Donahoo, 2006-NMCA-147, ¶ 2, 140 N.M. 788, 149 P.3d 104

 5 (reviewing a district court interpretation of a metropolitan court rule de novo).

 6   {7}   The bench warrant for Defendant was issued by the metropolitan court pursuant

 7 to Rule 7-207(A) NMRA. Rule 7-207(A) provides that a metropolitan court judge

 8 may issue a bench warrant when a person fails to appear at the time and place

 9 specified by the court.          By the statutory term used for the grant of

10 authority—“may”—the choice to issue a bench warrant is an exercise of discretion

11 on the part of the issuing judge. As such, we review for an abuse of discretion.

12 RULE 7-506

13   {8}   Under Rule 7-506(B) and its sister rules for the municipal and magistrate

14 courts—each frequently referred to as the six-month rule—the trial of a criminal

15 defendant must commence within 182 days of the latest of several triggering events.

16 See also Rule 8-506(B) NMRA (stating that the trial of a criminal defendant in

17 municipal court must commence within 182 days of the latest of several triggering

18 events); Rule 6-506(B) NMRA (same for magistrate court). Among the triggering

19 events are arraignment and the surrender of a defendant after a failure to appear. Rule


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 1 7-506(B)(1) (arraignment); Rule 7-506(B)(5) (surrender in New Mexico); Rule 7-

 2 506(B)(6) (surrender in another state). The disposition of this case depends on

 3 whether Defendant’s triggering event was his arraignment or his surrender to the

 4 court in response to the bench warrant. Whether arraignment or surrender was the

 5 triggering event pivots on whether the warrant was within the discretion of the

 6 metropolitan court.

 7   {9}    Defendant contends that the metropolitan court abused its discretion when it

 8 issued a bench warrant on October 14, 2008 for failure to appear when Defendant was

 9 sent notice by mail only six days before the proceeding. Defendant points to two

10 rules. Under Rule 7-104 NMRA, the general rule for notice of a hearing on a motion

11 is five days with three extra days for service by mail. Under Rule 7-205, a summons

12 to appear requires at least ten days notice with three additional days for service by

13 mail. Defendant, arguing by analogy, contends that six days notice by mail of his trial

14 date was inadequate because a hearing on a motion requires eight days notice by mail

15 under our rules and a summons to appear requires thirteen days.

16   {10}   The State contends that the amount of notice is not relevant. The State argues

17 that, by the plain language of Rule 7-207(A), the metropolitan court can issue a

18 warrant if a person fails to appear at the time and place ordered by the court and,

19 because Defendant did not appear on October 14, 2008 as ordered, the bench warrant


                                               5
 1 was not improper. According to the State, upon the surrender of Defendant to the

 2 court, the 182-day countdown to commence trial under Rule 7-506 began anew.1

 3   {11}   We do not agree with the State that the amount of notice given to a defendant

 4 to appear at a trial is irrelevant to whether a bench warrant for failure to appear is

 5 justified. The flaw in the State’s position is highlighted by the statement of the

 6 metropolitan court that it could schedule a trial for the very day after notice was sent.

 7 Under the reasoning of the State, a defendant could be sent notice by mail to appear

 8 the next day and issued a warrant for failure to appear before the defendant even

 9 received notice of the proceeding. An order to appear that, by design, defies

10 compliance cannot be the basis of a legitimate warrant. This is especially true when,

11 as here, the warrant for failure to appear is used as a lever to re-start the countdown

12 to begin a trial under a rule intended to guarantee a defendant’s right to a speedy trial.

13   {12}   Having determined that notice is a relevant consideration in this case, we turn

14 to the question of whether the six-day notice by mail received by Defendant was

15 sufficient. The State has offered no reason why Defendant should be offered less

16 notice for his trial than the eight days by mail that would generally be required for a


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17          Implicit in the State’s reasoning is the idea that the calendar was tolled under
18   Rule 7-506 from the time the metropolitan court issued the bench warrant until
19   Defendant surrendered to the court because he was a fugitive from justice from the
20   time he did not appear. Otherwise, the 182-day period in which to commence trial
21   would have expired after October 14, 2008.

                                               6
 1 hearing on a motion, and we can think of none. See Rule 7-104(C), (D) (stating that

 2 notice of a motion hearing is not less than five days, generally, with three extra days

 3 for service by mail). Furthermore, because this case was re-filed after being

 4 dismissed, the notice sent to Defendant of his trial date is akin to a summons. See

 5 Black’s Law Dictionary 1436 (6th ed. 1990) (recognizing that a summons to a

 6 criminal defendant commences the state’s action and directs the individual to appear

 7 in court to answer the charge). A summons served by mail must be sent a minimum

 8 of thirteen days prior to the required appearance of a defendant. Rule 7-205(D). The

 9 notice provided to Defendant of his re-filed case and impending trial date—six days

10 by mail—was not adequate. Because the notice offered to Defendant by the

11 metropolitan court was not sufficient, the bench warrant for failure to appear was not

12 within the discretion of the metropolitan court. Accordingly, after October 14, 2008,

13 the time for the State to commence a trial expired under Rule 7-506(B).

14   {13}   Before concluding, we pause to observe the larger picture in this case. The

15 facts cast a pall over the State’s position. The State was never ready to try this case

16 within the initial 182 days allowed under Rule 7-506(B), including on October 14,

17 2008, after the State re-filed the case just six days prior. At the trial setting on August

18 21, 2008, shortly after Defendant’s motion to dismiss was granted, the State

19 announced that it anticipated re-filing, yet chose not to re-file until October 8, 2008,


                                                7
 1 a delay of about six weeks. When the State finally tried the case, about ten months

 2 after arraignment, it did so without the arresting officer whose absence ostensibly

 3 caused the delays in the first place. It is the burden of the State to bring a defendant

 4 to trial within the 182-day requirement. State v. Granado, 2007-NMCA-058, ¶ 14,

 5 141 N.M. 575, 158 P.3d 1018. One purpose of the rule is to “effectuate a criminal

 6 defendant’s right to a speedy trial.” State v. Savedra, 2010-NMSC-025, ¶ 5, 148

 7 N.M. 301, 236 P.3d 20. Although analytically distinct, the six-month rule is rooted

 8 in the right to a speedy trial articulated in the Sixth Amendment of the United States

 9 Constitution and Article II, Section 14 of the New Mexico Constitution. Cf. State v.

10 Garza, 2009-NMSC-038, ¶ 43, 146 N.M. 499, 212 P.3d 387 (stating that one of the

11 versions of our six-month rule was “implemented . . . in response to Barker [v. Wingo,

12 407 U.S. 514 (1972),]” in which the United States Supreme Court laid out the test for

13 evaluating a potential speedy trial violation under the Sixth Amendment). In

14 metropolitan court, if the State is unable to commence trial within 182 days, it can

15 petition the court for extensions of time for up to thirty days total under Rule 7-

16 506(C)(5). See Rule 7-506(C)(5) (allowing the court to grant extensions under

17 “exceptional circumstances”). But to re-file a dismissed case just prior to the

18 expiration of the 182-day period with the hope or intention of gaining an additional

19 182 days does not comport with the spirit of the rule. See Savedra, 2010-NMSC-025,


                                              8
1 ¶ 5 (holding that strategic re-filing in district court “violate[d] the spirit of the six-

2 month rule” (internal quotation marks and citation omitted)).

3 CONCLUSION

4   {14}   For the foregoing reasons, we reverse the judgment of the district court. We

5 remand with orders to vacate the conviction of Defendant and dismiss this case with

6 prejudice pursuant to Rule 7-506(E)(2).

7   {15}   IT IS SO ORDERED.


8                                                 ________________________________
9                                                 JAMES J. WECHSLER, Judge

10 WE CONCUR:

11 ________________________________
12 RODERICK T. KENNEDY, Chief Judge

13 ________________________________
14 JONATHAN B. SUTIN, Judge




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