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State v. Hicks2/7/2002
Under New Mexico's failure to appear statute, a person commits up to a fourth degree felony if, while released pending trial or appeal in a criminal action, he or she "fails to appear before any court . . . as required." NMSA 1978, § 31-3-9 (1999). Defendant appeals his conviction for failure to appear. We discuss the meaning of the statutory language "fails to appear" when, as a condition of release from jail, Defendant was ordered to post bond by a date certain, but was not actually ordered to appear in person. Because the facts of this case do not fall within the intended scope of the failure to appear statute, we reverse Defendant's conviction.
BACKGROUND
While driving through Taos, New Mexico, on the evening of March 31, 1998, Defendant was involved in a car accident. He was arrested and charged with great bodily injury by vehicle (driving while intoxicated), in violation of NMSA 1978, Section 66-8-101 (1991). After spending the night in jail, Defendant appeared before the magistrate court the next morning, April 1, 1998. The judge filled out a Release Order and Bond form (Rule 9-303A NMRA 2002 Criminal Form), which was signed by Defendant and provided to him upon his release. On that form, the magistrate judge indicated that a secured bond was set in the amount of $1000, with 10 % cash ($100) required to be posted "by 4-1-98." The form was left blank, however, with regard to any order that Defendant appear personally before the court at any particular time.
Conflicting evidence was presented as to the conditions of release. As the magistrate judge recalled, Defendant was released on the condition that he return later in the day with the required $100 and proof of his address and employment. To qualify for a public defender, Defendant was to return completed indigency forms by April 3, 1998. The magistrate judge testified that he believed Defendant was aware of these conditions. The requirement that bond be posted "by 4-1-98" was written in the judge's own handwriting.
Defendant had a different recollection. He believed that he had been given several days in which to find a job and earn the necessary $100. Defendant, who was not from the area, understood that he had until the following Monday, April 6, to post the cash bond. Upon his release from jail, Defendant arranged to do a couple of days of work on the following Monday and Tuesday. He testified that he returned to the courthouse on Monday morning at 8 o'clock to inform the magistrate judge of the work arrangements he had made. He waited until 8:30 a.m. for the magistrate judge, who had still not arrived. Ultimately, Defendant left a note with the magistrate court's secretary, explaining his intentions to post the money. Defendant worked on Monday and Tuesday, April 6-7, earning $120-$130. At the end of his second day of work, Defendant's employer showed him an article on the front page of the local newspaper, which described the accident and indicated that a warrant had issued for Defendant's arrest. In fact, a bench warrant had been issued on April 3, 1998.
Unsettled by the news of his impending arrest, Defendant used his earnings to take a bus out of state. A little over a year later, he was located in Colorado and arrested on the magistrate court's bench warrant. Defendant was extradited to New Mexico to stand trial on the great bodily injury by vehicle charge, after which he was convicted and sentenced to serve four years incarceration, followed by two years parole. We affirmed Defendant's appeal of that conviction in State v. Hicks, Ct. App. No. 21,553 (filed July 25, 2001), cert. quashed, S.Ct. No. 27,093 (Jan. 24, 2002).
A separate criminal charge was
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