State v. Jackson ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,134
10 RICHARD JACKSON,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Don Maddox, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 FRY, Chief Judge.
23 Defendant appeals from an order revoking his probation. In this Court’s notice
24 of proposed summary disposition, we proposed to affirm. Defendant has timely filed
1 a memorandum in opposition. We have considered Defendant’s arguments, and as we
2 are not persuaded by them, we now affirm.
3 Defendant contends that the district court erred in refusing to dismiss the State’s
4 motion to revoke Defendant’s probation. [DS 4] Defendant claims that the district
5 court erred in denying his motion to dismiss because the recommendation to revoke
6 Defendant’s probation was not timely served on the district attorney in accordance
7 with Rule 5-805(E) NMRA. [DS 3] That rule requires that “[i]f there is a
8 recommendation that probation be revoked, within five (5) days of the arrest of
9 probationer the probation office shall submit a written violation or a summary report
10 to the district attorney and the court describing the essential facts of each violation.”
11 Id. As Defendant’s argument relies on the interpretation of a rule of procedure, our
12 review is de novo. See State v. Lohberger, 2008-NMSC-033, ¶ 18, 144 N.M. 297, 187
13 P.3d 162.
14 Defendant’s docketing statement indicates that he was arrested on August 24,
15 2009, but the district attorney’s office was not served until September 4, 2009, eleven
16 days after the arrest. [DS 2-3; but see RP 125-26 (indicating that the district
17 attorney’s office was not served until September 8, 2009—fifteen days after the
18 arrest)] Defendant asserts that dismissal was required because the district attorney’s
19 office was not served within five days as required by the rule. [DS 3]
2
1 In this Court’s notice of proposed summary disposition, we proposed to find no
2 error. There is nothing in the rule that would suggest that dismissal is appropriate
3 when the district attorney is not served within the required period. Cf. Rule 5-805(L)
4 (providing that dismissal with prejudice is required “[i]f an adjudicatory hearing on
5 the alleged probation violation is not held within the time limits prescribed by this
6 rule”). Here, Defendant does not allege that the failure to timely serve the district
7 attorney caused his adjudicatory hearing to be held beyond the prescribed time limits,
8 and he does not assert that he was in any other way prejudiced by the delay. See State
9 v. Chavez, 102 N.M. 279, 282, 694 P.2d 927, 930 (Ct. App. 1985) (indicating that a
10 delay in a probation revocation proceeding will only violate due process if the
11 probationer can establish that the delay prejudiced him). As Defendant’s
12 memorandum in opposition does not provide any argument or authority that would
13 convince this Court that a violation of Rule 5-805(E) necessarily requires dismissal
14 of the motion to revoke probation, we hold that the district court did not err in refusing
15 to dismiss the motion on this basis.
16 Defendant also argues that the revocation of his probation was improper
17 because NMSA 1978, Section 31-21-15(A)(3) (1989), requires that an arresting
18 officer have written notice of a probation violation, and here, the officer who arrested
19 Defendant only had oral notice. [MIO 6-7] We do not address this separate argument
3
1 because it was not squarely raised by Defendant’s docketing statement, which framed
2 the sole issue on appeal as follows: “The probation office did not follow the statutory
3 mandate to submit a written violation or summary report to the district attorney within
4 five days of the probationer’s arrest.” [DS 4] Furthermore, Defendant does not
5 appear to have preserved in the district court any separate argument regarding written
6 notice to the arresting officer. [DS 3 (stating that the motion in the district court was
7 based on Rule [5]-805(E)); RP 125-26 (relying solely on Rule 5-805(E))] We find no
8 error in the district court’s failure to dismiss the motion to revoke probation on a basis
9 that Defendant did not argue below.
10 CONCLUSION
11 Therefore, for the reasons stated in this opinion and in our notice of proposed
12 summary disposition, we affirm.
13 IT IS SO ORDERED.
14
15 CYNTHIA A. FRY, Chief Judge
16 WE CONCUR:
17
18 RODERICK T. KENNEDY, Judge
4
1
2 ROBERT E. ROBLES, Judge
5