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State v. Velasquez12/1/1999
Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
[ ] Leonardo Velasquez appealed from a conviction for two counts of delivery of a controlled substance. We conclude Velasquez's rights to a fair trial were not violated and we affirm.
[ ] Rosvel Gonzalez, after being charged with drug-related felonies, agreed to work with police as an informant. Gonzalez phoned Velasquez and they agreed to exchange drugs for money. Gonzalez was to pay $2,800 to Velasquez for one ounce of cocaine and one ounce of methamphetamine. After phoning Velasquez, Gonzalez notified police he was arranging a purchase of drugs and the police gave him $2,800 and placed a transmitter on him. On May 28, 1998, Gonzalez exchanged the money for drugs at Velasquez's home. Gonzalez notified the authorities of this exchange and Velasquez was arrested. At the jury trial, Gonzalez testified Velasquez sold him methamphetamine and cocaine at Velasquez's home. Velasquez was found guilty.
I.
[ ] Velasquez argues the district court erred in denying his demand for change of Judge prior to trial. The demand for change of Judge was denied because it was untimely.
Section 29-15-21(2), N.D.C.C., reads:
The demand [for change of Judge] is invalid unless it is filed with the clerk of the court not later than ten days after the occurrence of the earliest of any one of the following events:
a. The date of the notice of assignment or reassignment of a Judge for trial of the case;
b. The date of notice that a trial has been scheduled; or
c. The date of service of any ex parte order in the case signed by the Judge against whom the demand is filed.
On October 8, 1998, the district court gave notice to the parties of the Judge assigned to the case, triggering subsection (2)(a). Velasquez did not demand a change of Judge until November 13, 1998, well after the 10- day period had elapsed. Velasquez claims the 10-day period cannot begin to run until a trial is scheduled. This argument is unpersuasive. Subsection (2)(a) of the statute makes no reference to a case being scheduled on the calendar; it only requires a Judge to be assigned for trial of the case to engage the ten day period in which to make the demand for a change of Judge. In some instances a Judge is initially assigned to a case only for the purpose of the preliminary hearing. However, here the parties were notified on October 8, 1998 of the Judge assigned to the case "until its completion." This necessarily includes trial of the case. Thus, Velasquez's demand for change of Judge was untimely according to N.D.C.C. § 29-15-21(2)(a). See Adolph Rub Trust v. Rub, 473 N.W.2d 442, 445 (N.D. 1991) (stating where demand for change of Judge was in excess of ten days after the date of notice, the demand was untimely pursuant to N.D.C.C. § 29-15-21(2)(b)).
II.
[ ] Velasquez offers two reasons why he should not have to pay $2,800 in court-ordered restitution for the fruits of his crime. First, he argues restitution only applies to monetary losses or damages that occur after the commission of the offense. He cites N.D.C.C. § 12.1-32- 02(1)(e), which requires " estitution for damages resulting from the commission of the offense." The words "resulting from" in the statute, Velasquez argues, cover only losses occurring after delivery. Velasquez claims any monetary losses here occurred before the commission of an offense, that is the money was transferred before the drugs. Words in a statute are to be understood
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