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State v. Jacquez12/15/1994
Opinion
APODACA, Chief Judge.
The memorandum opinion filed on November 22, 1994 is withdrawn on the panel's own motion, and the following opinion is substituted in its place.
The State appeals from the trial court's dismissal with prejudice of an amended criminal complaint filed against Johnny A. Jacquez (Defendant). The State argues that the trial court erred in dismissing the case: (1) under the six-month rule enunciated in SCRA 1986, 5-604(B) (Repl. 1992); and (2) for a violation of Defendant's Sixth Amendment right to a speedy trial. We hold that the trial court erred in dismissing the charges under SCRA 5-604(B) because only approximately five months had elapsed between Defendant's arrest and the scheduled trial date. We also hold that the trial court erred in dismissing the charges for a Sixth Amendment speedy trial violation because the threshold of a presumptively prejudicial delay was not present. We therefore reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 1992, Defendant was arrested and charged with one count of driving under the influence of an intoxicating liquor (fourth or subsequent offense), in violation of NMSA 1978, Section 66-8-102 (Cum. Supp. 1993) (effective until January 1, 1994). At booking, Defendant gave his current address as P.O. Box 1583, Bloomfield, New Mexico. Later that morning, a magistrate Judge dismissed the complaint without prejudice because she found "that probable cause has not been shown that a crime ha been committed and that . . . Defendant committed it."
The case later was assigned to the trial court's docket and called on June 1, 1992. At this time, the trial court disagreed with the magistrate Judge's determination that no probable cause existed to support Defendant's arrest. He directed the State to either dismiss the original criminal complaint or file an amended complaint against Defendant. On June 2, 1992, the State filed an amended criminal complaint. The case was called for arraignment on July 6, 1992. At this time, the State indicated that it was unable to locate Defendant in order to serve process. The trial court passed the case for lack of personal service.
A detective from the Bloomfield Police Department contacted Defendant's employer in an attempt to locate Defendant. Defendant's employer provided the detective with an address it had on file for Defendant, 1501 Saiz Lane #1, Bloomfield, New Mexico. The San Juan County Sheriff's Office was unable to locate Defendant, however, at either the Saiz Lane address or in the utility computer at that address.
On August 3, 1992, a sheriff's affidavit of non-service was filed indicating that the sheriff was unable to locate Defendant at the Saiz Lane address in Bloomfield and that Defendant was not in the utility computer. When the case was called for arraignment on the same date, the State informed the trial court that it was continuing its attempts to locate an address for Defendant. The trial court again passed the case for lack of personal service.
On August 26, 1992, the State filed a motion to obtain an arrest warrant for Defendant. The motion alleged that the State had made two separate attempts to serve Defendant with notice of the arraignment. The trial court issued a bench warrant on August 28, 1992.
On April 28, 1993, Defendant was arrested in Las Vegas, Nevada, on the bench warrant. Defendant waived extradition and was transferred back to New Mexico on May 5, 1993. On June 8, 1993, Defendant was arraigned in the trial court, where he pled not guilty. Defendant gave the trial court his residence addr
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