December 01, 2014 – State of New Mexico v Thaddeus Carroll, No. 32,909

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ____________
Filing Date: 	December 1, 2014
NO. 32,909
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
THADDEUS CARROLL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith K. Nakamura, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellee
Law Offices of the Public Defender
Jorge A. Alvarado, Chief Public Defender
Santa Fe, NM
Stephen J. Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Thaddeus Carroll appeals his conviction for driving under the
influence of alcohol (DWI). 	Defendant was tried in the Bernalillo County
Metropolitan Court and appealed to the district court, which affirmed. 	Defendant
makes three arguments in favor of reversal: (1) that his conviction violated Rule 7-
506 NMRA, which requires that a defendant be tried within 182 days of the latest of
several triggering events; (2) that the metropolitan court improperly admitted the
testimony of a prosecution witness; and (3) that the evidence was insufficient to
sustain his conviction.
{2} 	The crux of Defendant’s argument regarding Rule 7-506 is that Defendant did
not receive adequate notice of his trial. Defendant was mailed notice six days prior
to the proceeding. The trial was scheduled for the very last day possible under Rule
7-506, and Defendant did not appear. Because Defendant missed the court date, the
metropolitan court chose to issue a bench warrant for his arrest. 	The effect of the
warrant was to toll the calendar under Rule 7-506 and, upon Defendant’s surrender to
the jurisdiction of the court, provide an additional 182 days for trial. 	Defendant
argues that he did not receive sufficient notice of his trial date, that the warrant was
improper, and, therefore, the case should have been dismissed pursuant to Rule 7-506.

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We agree with Defendant that the notice provided of his trial date—six days by
mail—was not sufficient and, therefore, we reverse and remand with instructions to
the district court to dismiss this case with prejudice. 	We do not reach the other
arguments.
BACKGROUND
{3} 	Defendant was arrested on April 12, 2008 for aggravated DWI, first offense,
and arraigned on April 14, 2008. The trial setting was continued twice because the
State was not ready to proceed—first, because the arresting officer was on vacation
and, second, because the officer did not appear at the proceeding. 	Noting that the
State was twice unready to proceed and that the State did not make available witnesses
for pre-trial interviews, Defendant moved to dismiss the case at the second setting.
The metropolitan court granted the motion and dismissed the case without prejudice.
That was on August 21, 2008.
{4} 	On October 8, 2008, the State re-filed the dismissed complaint against
Defendant. The metropolitan court set the trial for October 14, 2008, the last possible
date to commence a trial under Rule 7-506. 	The metropolitan court sent both the
notice of the re-filing and the new trial setting to Defendant by mail. These mailings
were sent on October 8, 2008, six days prior to the trial date. Although Defendant’s
attorney was present at the trial, Defendant did not attend the proceeding. Again the

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State was not ready to proceed because the complaining officer did not appear. In
consequence of Defendant’s absence, the metropolitan court issued a bench warrant.
Two days later, Defendant filed a motion to quash the bench warrant and dismiss the
case pursuant to Rule 7-506. 	Defendant argued that six days notice by mail was
insufficient and asserted that he only received the notice on the day of the proceeding.
The metropolitan court denied Defendant’s motion. Subsequently, Defendant filed
a motion requesting that the bench warrant be cancelled or quashed and included an
apology for his failure to appear. 	The metropolitan court granted this motion and
cancelled the warrant.
{5} 	At the trial setting on February 4, 2009, Defendant again argued that the case
should be dismissed pursuant to Rule 7-506. 	Defendant pointed out that ten days
notice is required for service of a summons, with three additional days for service by
mail. 	The metropolitan court stated that Rule 7-205 NMRA—“the ten-day
stuff”—did not apply to trials. The metropolitan court added that it could “set a trial
the very next day [after notice.]” It denied Defendant’s renewed motion to dismiss
pursuant to Rule 7-506. Defendant was tried and found guilty of DWI, first offense.
Defendant appealed to the district court, which affirmed.

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STANDARD OF REVIEW
{6} 	The application of Rule 7-506 to the facts of this case is a question of law that
we review de novo. State v. Maestas, 2007-NMCA-155, ¶ 9, 143 N.M. 104, 173 P.3d
26; see also State v. Donahoo, 2006-NMCA-147, ¶ 2, 140 N.M. 788, 149 P.3d 104
(reviewing a district court interpretation of a metropolitan court rule de novo).
{7} 	The bench warrant for Defendant was issued by the metropolitan court pursuant
to Rule 7-207(A) NMRA. Rule 7-207(A) provides that a metropolitan court judge
may issue a bench warrant when a person fails to appear at the time and place
specified 	by 	the 	court. 	By 	the 	statutory 	term 	used 	for 	the 	grant 	of
authority—“may”—the choice to issue a bench warrant is an exercise of discretion on
the part of the issuing judge. As such, we review for an abuse of discretion.
RULE 7-506
{8} 	Under Rule 7-506(B) and its sister rules for the municipal and magistrate
courts—each frequently referred to as the six-month rule—the trial of a criminal
defendant must commence within 182 days of the latest of several triggering events.
See also Rule 8-506(B) NMRA (stating that the trial of a criminal defendant in
municipal court must commence within 182 days of the latest of several triggering
events); Rule 6-506(B) NMRA (same for magistrate court). Among the triggering
events are arraignment and the surrender of a defendant after a failure to appear. Rule

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7-506(B)(1) (arraignment); Rule 7-506(B)(5) (surrender in New Mexico); Rule 7-
506(B)(6) (surrender in another state). 	The disposition of this case depends on
whether Defendant’s triggering event was his arraignment or his surrender to the court
in response to the bench warrant. 	Whether arraignment or surrender was the
triggering event pivots on whether the warrant was within the discretion of the
metropolitan court.
{9} 	Defendant contends that the metropolitan court abused its discretion when it
issued a bench warrant on October 14, 2008 for failure to appear when Defendant was
sent notice by mail only six days before the proceeding. 	Defendant points to two
rules. Under Rule 7-104 NMRA, the general rule for notice of a hearing on a motion
is five days with three extra days for service by mail. Under Rule 7-205, a summons
to appear requires at least ten days notice with three additional days for service by
mail. Defendant, arguing by analogy, contends that six days notice by mail of his trial
date was inadequate because a hearing on a motion requires eight days notice by mail
under our rules and a summons to appear requires thirteen days.
{10} 	The State contends that the amount of notice is not relevant. The State argues
that, by the plain language of Rule 7-207(A), the metropolitan court can issue a
warrant if a person fails to appear at the time and place ordered by the court and,
because Defendant did not appear on October 14, 2008 as ordered, the bench warrant

1 Implicit in the State’s reasoning is the idea that the calendar was tolled under
Rule 7-506 from the time the metropolitan court issued the bench warrant until
Defendant surrendered to the court because he was a fugitive from justice from the
time he did not appear. Otherwise, the 182-day period in which to commence trial
would have expired after October 14, 2008.
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was not improper. 	According to the State, upon the surrender of Defendant to the
court, the 182-day countdown to commence trial under Rule 7-506 began anew.1
{11} 	We do not agree with the State that the amount of notice given to a defendant
to appear at a trial is irrelevant to whether a bench warrant for failure to appear is
justified. 	The flaw in the State’s position is highlighted by the statement of the
metropolitan court that it could schedule a trial for the very day after notice was sent.
Under the reasoning of the State, a defendant could be sent notice by mail to appear
the next day and issued a warrant for failure to appear before the defendant even
received notice of the proceeding. 	An order to appear that, by design, defies
compliance cannot be the basis of a legitimate warrant. This is especially true when,
as here, the warrant for failure to appear is used as a lever to re-start the countdown
to begin a trial under a rule intended to guarantee a defendant’s right to a speedy trial.
{12} 	Having determined that notice is a relevant consideration in this case, we turn
to the question of whether the six-day notice by mail received by Defendant was
sufficient. 	The State has offered no reason why Defendant should be offered less
notice for his trial than the eight days by mail that would generally be required for a

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hearing on a motion, and we can think of none. See Rule 7-104(C), (D) (stating that
notice of a motion hearing is not less than five days, generally, with three extra days
for service by mail). 	Furthermore, because this case was re-filed after being
dismissed, the notice sent to Defendant of his trial date is akin to a summons. 	See
Black’s Law Dictionary 1436 (6th ed. 1990) (recognizing that a summons to a
criminal defendant commences the state’s action and directs the individual to appear
in court to answer the charge). A summons served by mail must be sent a minimum
of thirteen days prior to the required appearance of a defendant. Rule 7-205(D). The
notice provided to Defendant of his re-filed case and impending trial date—six days
by mail—was not adequate. Because the notice offered to Defendant by the
metropolitan court was not sufficient, the bench warrant for failure to appear was not
within the discretion of the metropolitan court. Accordingly, after October 14, 2008,
the time for the State to commence a trial expired under Rule 7-506(B).
{13} 	Before concluding, we pause to observe the larger picture in this case. 	The
facts cast a pall over the State’s position. The State was never ready to try this case
within the initial 182 days allowed under Rule 7-506(B), including on October 14,
2008, after the State re-filed the case just six days prior. At the trial setting on August
21, 2008, shortly after Defendant’s motion to dismiss was granted, the State
announced that it anticipated re-filing, yet chose not to re-file until October 8, 2008,

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a delay of about six weeks. When the State finally tried the case, about ten months
after arraignment, it did so without the arresting officer whose absence ostensibly
caused the delays in the first place. It is the burden of the State to bring a defendant
to trial within the 182-day requirement. State v. Granado, 2007-NMCA-058, ¶ 14,
141 N.M. 575, 158 P.3d 1018. One purpose of the rule is to “effectuate a criminal
defendant’s right to a speedy trial.” State v. Savedra, 2010-NMSC-025, ¶ 5, 148 N.M.
301, 236 P.3d 20. Although analytically distinct, the six-month rule is rooted in the
right to a speedy trial articulated in the Sixth Amendment of the United States
Constitution and Article II, Section 14 of the New Mexico Constitution. Cf. State v.
Garza, 2009-NMSC-038, ¶ 43, 146 N.M. 499, 212 P.3d 387 (stating that one of the
versions of our six-month rule was “implemented . . . in response to Barker [v. Wingo,
407 U.S. 514 (1972),]” in which the United States Supreme Court laid out the test for
evaluating a potential speedy trial violation under the Sixth Amendment). 	In
metropolitan court, if the State is unable to commence trial within 182 days, it can
petition the court for extensions of time for up to thirty days total under Rule 7-
506(C)(5). 	See Rule 7-506(C)(5) (allowing the court to grant extensions under
“exceptional circumstances”). 	But to re-file a dismissed case just prior to the
expiration of the 182-day period with the hope or intention of gaining an additional
182 days does not comport with the spirit of the rule. See Savedra, 2010-NMSC-025,

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¶ 5 (holding that strategic re-filing in district court “violate[d] the spirit of the six-
month rule” (internal quotation marks and citation omitted)).
CONCLUSION
{14} 	For the foregoing reasons, we reverse the judgment of the district court. We
remand with orders to vacate the conviction of Defendant and dismiss this case with
prejudice pursuant to Rule 7-506(E)(2).
{15} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
RODERICK T. KENNEDY, Chief Judge
________________________________
JONATHAN B. SUTIN, Judge