State v. Powell
Annotate this Case
Download PDF
1 2 3 4 5 6 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,232 10 FLOYD POWELL, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 13 Jerry H. Ritter, Jr., District Judge 14 Gary K. King, Attorney General 15 Anita Carlson, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Jacqueline L. Cooper, Acting Chief Public Defender 19 Nancy M. Hewitt, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 23 BUSTAMANTE, Judge. MEMORANDUM OPINION 1 This case comes to us on remand from our earlier decision reversing the district 2 court s denial of Defendant s motion to dismiss. Defendant had argued dismissal was 3 required for violations of the six-month rule and his right to a speedy trial. Our 4 Supreme Court has since clarified that the six-month rule no longer applies to pending 5 cases. Accordingly, we now address Defendant s speedy trial argument. 6 Defendant was arraigned in magistrate court on December 5, 2007. On March 7 17, 2008, the State filed a nolle prosequi in magistrate court and refiled in district 8 court the following day. On October 21, 2008, Defendant filed a motion to dismiss 9 for violation of the six-month rule and his right to a speedy trial, arguing that his trial 10 should have commenced on or before June 5, 2008. Defendant entered a conditional 11 plea on October 22, 2008, reserving his right to appeal the denial of his motion to 12 dismiss for violations of the six-month rule and his right to a speedy trial. 13 The district court denied Defendant s motion, and Defendant appealed. After 14 the case had been briefed, our Supreme Court withdrew the six-month rule for all 15 pending cases. State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20. 16 Because we believed that this rule change only applied to cases pending in the district 17 court at the time Savedra was filed, we applied the six-month rule to determine that 18 the charges against Defendant should have been dismissed. Additionally, since we 2 1 decided the issue on the six-month rule, we did not address Defendant s speedy trial 2 argument. 3 Our Supreme Court has since clarified the meaning of pending as used in 4 Savedra. In State v. Martinez, the Court held that Savedra applies to all pending 5 cases that were not yet final as of May 12, 2010, regardless of which court they were 6 pending in. State v. Martinez, 2011-NMSC-010, ¶¶ 10, 12, 149 N.M. 370, 249 P.3d 7 82. Our belief that Savedra did not apply to this case was therefore in error. 8 Accordingly, our previous reversal in this case was remanded to us, and we now 9 address Defendant s speedy trial claim. See id. ¶ 13. 10 Our Supreme Court has adopted the four-factor test from Barker v. Wingo, 407 11 U.S. 514 (1972), for determining whether a defendant s right to a speedy trial has been 12 violated. The review of these factors is triggered by the length of delay involved. See 13 State v. Garza, 2009-NMSC-038, ¶ 21, 146 N.M. 499, 212 P.3d 387. In Garza, our 14 Supreme Court set forth a one-year time period as a guideline to trigger the 15 presumption of prejudice for simple cases. Id. ¶ 48. This guideline[] appl[ies] only 16 to speedy trial motions to dismiss initiated on or after August 13, 2007. Id. ¶ 50. 17 As the motion to dismiss in this case was filed on October 21, 2008, the one-year 18 deadline applies. Because the delay in the instant case was only ten months, there is 3 1 no presumption of prejudice, and we need not examine the four factors to conclude 2 that Defendant s right to a speedy trial was not violated. 3 For the foregoing reasons, we affirm the district court. 4 IT IS SO ORDERED. 5 6 MICHAEL D. BUSTAMANTE, Judge 7 WE CONCUR: 8 9 JONATHAN B. SUTIN, Judge 10 11 LINDA M. VANZI, Judge 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
