State v. Fernandez4/14/1994
l. 1990).
Defendant was charged by criminal complaint and arraigned in municipal court on December 5, 1991 on charges of DWI, careless driving, and resisting arrest. On January 16, 1992, the State dismissed the charges in municipal court and, that same day, filed a criminal complaint in district court charging Defendant with committing the same misdemeanor offenses charged in municipal court. On February 18, 1992, Defendant was arraigned on the charges filed in district court.
On April 20, 1992, Defendant was indicted by a grand jury for the felony offenses of embezzlement (count I), bribery or intimidation of a witness (count II), and fraudulent use of a credit card (count III). On June 19, 1992, Defendant entered a waiver of arraignment and plea of not guilty to those charges.
On August 5, 1992, the Supreme Court granted the State's petition for an extension of time pursuant to SCRA 1986, 5-604 (Repl. 1992), allowing the trial to commence through November 18, 1992. On October 26 and 27, 1992, the district court entered written orders severing the count II felony intimidation offense from counts I and III, for purposes of trial, and ordering that the three misdemeanor offenses charged in Taos County Cause No. 92-06CR be tried together with the severed felony intimidation charge in Taos County Cause No. CR 92-27. Defendant's trial in Cause No. 92-06CR, on the three misdemeanor charges and the one felony count, commenced on November 16, 1992.
Under New Mexico law, the trial of a criminal case is required to commence six months after "the date of arraignment, or waiver of arraignment, in the district court of any defendant." SCRA 5-604(B)(1). Defendant argues that, after a motions hearing held July 24, 1992, the district court erred by not dismissing the misdemeanor charges filed in Taos Municipal Court on December 5, 1991. The district court, however, did make a finding, after a hearing, that the State's refiling in district court of the misdemeanor charges originally filed in municipal court was not done to circumvent the rule, that Defendant had not been prejudiced, and that the intent of the six-month rule had not been
violated. See, e.g., (such a finding sufficient under prior rule). Moreover, Defendant raised this argument before the Supreme Court in his opposition to the State's petition for an extension of time. Indeed, the Supreme Court's extension order indicates Defendant's objection was considered. Defendant is thus precluded from now challenging the Supreme Court's ruling. See, e.g., ) (New Mexico Supreme Court's grant of an extension is final and may not be challenged in the Court of Appeals), cert. denied, 86 N.M. 372, 524 P.2d 988, and cert. denied, 419 U.S. 1072, 1092 (1974).
III. THE DECEMBER 5, 1991 LETTER
Defendant contends the district court erred by admitting into evidence a letter dated December 5, 1991 written by Defendant to Romo. Defense counsel argues that this letter constitutes an offer to plea bargain and is therefore inadmissible under SCRA 1986, 5-304(F) (Repl. 1992) and SCRA 1986, 11-410.
It is not clear from the face of the December 5, 1991 letter that it is intended to be an offer to plea bargain. Even if it is viewed as such, however, statements volunteered by the Defendant in contacts he initiated with authorities are beyond the protection of SCRA 11-410. State v. Anderson, N.M. , P.2d (Ct. App. 1993) (No. 18,456); see also 2 David W. Louisell & Christopher B. Mueller, Federal Evidence § 187 (rev. ed. 1985). Nor does Defendant refer to any evidence that he relied on
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