July 29, 2019- State of New Mexico v. Frank Lucero, No. A-1-CA-37482

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	v. 	No. A-1-CA-37482
5 FRANK LUCERO,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 	Dustin K. Hunter, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe , NM
11 	for Appellee
12 	Frank Lucero
13 	Roswell, NM
14 Pro Se Appellant
15 	MEMORANDUM OPINION
16 	VARGAS, Judge.
17 	{I} 	Defendant appeals from the judgment and sentence convicting him of, among
18 	other charges, driving with a suspended licence. We entered a notice of proposed
19 	summary disposition proposing to affirm, and Defendant has responded with a
20 	memorandum in opposition. 	We remain 	unpersuaded that our initial proposed
21 	disposition wa s incorrect and, for the reasons that follow, we affirm the district court.
Court of Appeals of New Mexico
Filed 7/29/2019 9:22 AM

1 {2} 	Defendant continues to argue that the State violated Rule 5-604(A) NMRA,
2 and points to this Court' s failure to rule on the mandatory nature of the rule. [MIO 1-
3 2] In particular, Defendant references the part of the rule that state s: "For cases of
4 concurrent trial jurisdiction originally filed 	in the magistrate, metropolitan, or
5 municipal court that are subsequently dismissed and refiled in the district court, the
6 initiatory pleading in the district court shall state in the caption that it is a refiled case
7 and shall state" certain information li sted therein. Rule 5-604(A). Our calendar notice
8 suggested that even if there was a violation, any remedy was by way of a speedy trial
9 challenge and it did not appear Defendant raised such a challenge in district court.
10 	[CN 1-2] In response, Defendant does not point to any error in fact or law with the
11 	proposed disposition, but asserts that the proposed disposition sends a signal to the
12 	State that it can choose to neither substantially nor strictly comply with the mandatory
13 	requirement of the rule. [MIO 1] See State v. Mondragon , 1988-NMCA-027, ,r 10 ,
14 	107 N.M. 421 , 759 P.2d 1003 (stating that " [a] party responding to a summary
15 	calendar notice must come forward and specifically point out errors oflaw and fact"),
16 superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-
l 7 031 , 297 P.3d 374.
18 	{3} 	Defendant seeks reversal as a remedy for the State 's failure to follow Rule 5-
19 	604(A). However, Defendant cites to no authority for his contention that dis mi ss al is
2

1 the 	proper 	remedy, 	and 	we 	are 	aware 	of 	none. 	See 	State 	v. 	Vigil-Giron,
2 	2014-NMCA-069, 160 ,327 P.3d 1129 ("[A]ppellate courts will not consider an issue
3 	if no authority is cited in support of the issue and that, given no cited authority, we
4 	assume no such authority exists."). To the contrary, it is established law that since the
5 withdrawal of the six-month rule in district court, a defendant 's remedy for any
6 violation of Rule 5-604(A) is through a speedy trial claim. See State v. Savedra,
7 2010-NMSC-025, 19, 148 N.M. 301,236 P.3d 20 (withdrawing the six-month rule
8 	in district court and determining that " [i]n its place, [the] defendants may rely upon
9 	and assert their right to a speedy trial whenever they believe impermissible delay has
10 	occurred; whether that delay is the result of a dismissal and refiling or any other
11 	cause"). To the extent Defendant argues that the speedy trial provisions in Subsection
12 	B of the rule are independent of, and inapplicable to, the directives in Subsection A,
13 	we disagree. We adhere to the Supreme Court's holding that "any inquiry into the
14 	[s]tate' s reasons for dismissing and refiling in district court should be done within the
15 	context of any speedy trial challenge the defendant may raise after the case is refiled
16 	in district court." Id. 18.
17 	{4} 	Moreover, Defendant does not point to evidence in the record to indicate that
18 	the State's dismissal in magistrate court and refiling in district court was done to
19 	circumvent the six-month rule. In fact, it appears that in denying Defendant's motion
3

1 to dismiss, the district court found that the State did not exercise bad faith-the State
2 dismissed the charges and refiled in district court in order to obtain a court of record,
3 and the delay was minimal. [1 RP 205] It further appears that the district court's order
4 expressly found that "[t]aking all the factors in Rule 5-604(B) into account, the
5 [c]ourt finds that Defendant 's right to a speedy trial has not been violated." [2 RP
6 314]
7 	{5} 	Defendant also continues to challenge the sufficiency of the evidence to
8 support his conviction for driving while his license was suspended on the basis that
9 he lacked knowledge of the withdrawal of his driving privileges. See NMSA 1978,
10 	§ 66-5-39 (2013) (requiring proof that one "knows or should have known that the
11 	person's license was suspended"). Defendant asserts that the proposed disposition
12 	does not follow case law requiring that notice must be given by MVD to a license
13 	holder prior to the suspension of their license, and notice cannot be had with
14 presentation of the officer issued citation years later. [MIO 3] Our notice suggested
15 	that there was evidence in the record to support the conclusion that Defendant knew
16 	about the withdrawal of his driving privileges, as evidenced by the properly admitted
17 	motor vehicle department document packet-which included the citation and notice
18 	of withdrawal of driving privileges-that Defendant acknowledged receiving prior
19 to the action. [CN 3-5] See State v. Rojo, 1999-NMSC-001 , 119, 126 N.M. 438,971
4

1 P.2d 829 (stating that we disregard all evidence and inferences that support a different
2 result). Defendant essentially repeats the same argument but does not dispute the
3 evidence in the record relied upon in the proposed disposition. See Mondragon, 1988-
4 NMCA-027, ,-i 10 (stating that the repetition of earlier arguments does not fulfill the
5 requirements of memorandum in opposition). Consequently, we affirm. See State v.
6 Aragon, 1999-NMCA-060, ,-r 10, 127 N.M. 393, 981 P.2d 1211 (stating that we
7 presume correctness in the trial court's rulings and the burden is on the appellant to
8 demonstrate trial court error).
9 	{6} 	For these reasons, and those stated in the notice of proposed disposition, we
10 	affirm the district court.
11 	{7}
12
13
IT IS SO ORDERED.
14 WE CONCUR:
5