IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 28,884 4 DARRYL ROANHORSE, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Karen L. Townsend, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Corey J. Thompson, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 SUTIN, Judge. 17 Defendant appeals from an order dismissing his appeal in district court and 18 remanding to magistrate court for imposition of the original sentence. We proposed 19 to affirm in a notice of proposed summary disposition and, pursuant to an extension, 202 Defendant filed a timelymemorandum in opposition. Remaining unpersuaded by 1 Defendant’s memorandum, we affirm. 2 Defendant contends that the magistratecourt should have dismissed this case 3 because the State failed to bring Defendant to trial in a timely manner. [MIO 2, 4; DS 4 unnumbered page 1] See Rule 6-506(B) NMRA (providing that trial of a criminal 5 case shall be commenced within 182 days after arraignment or other specified 6 triggering events). Pursuant to Rule 6- 506(B)(5), the State may bring a defendant to 7 trial within the 182-day period commencing once a defendant surrenders to the court 8 for failure to appear. In th is case, Defendant claims that he never surrendered to the 9 court for purposes of satisfying Rule 6- 506(B)(5). [MIO 4-8] We disagree. 10 In our notice of proposed summary dispos ition, we expressed uncertainty as to 11 whether Defendant reserved this issue when heentered a plea in magi strate court. [RP 12 15; DS 1] See State v. Hodge , 118 N.M. 410, 416, 882 P.2d 1, 7 (1994) (stating that 13 a conditional plea is the proper procedure for allowing a defendant to reserve a 14 significant pretrial issue for appeal); see also Rule 5-304(A)(2) NMRA. We observed 15 that neither Defendant’s conditional plea inmagistrate court nor the final judgment 16 and sentence specify any issues reserved for appeal. [RP 3-7, 15] See Hodge , 118 17 N.M. at 416, 882 P.2d at 7 (stating that in order to reserve an adverse pretrial ruling 183 for appeal, the defendant should enter a conditional plea agreement in writing 1 specifying the issue or issues reserved for appeal). However, since it appeared that 2 Defendant intended to reserve the issu e of whether the cas e should have been 3 dismissed for lack of timely prosecution, we proceeded to address the merits of 4 Defendant’s appeal assuming that the specifi c issue was reserved orally at the time 5 Defendant entered the conditional plea. See id. at 417, 882 P.2d at 8 (stating that an 6 appellate court can recognize a conditional plea without written evidence when the 7 record reveals that the defendant has me t the requirements for a conditional plea). 8 Neither party has indicated that we were incorrect in this assumption. [MIO 3] 9 Turning to the merits of Defendant’s contention, we apply a de novo standard 10 of review to the lower courts’ application of Rule 6-506. [MIO 4] See State v. 11 Granado , 2007-NMCA-058, ¶ 11, 141 N.M. 575, 158 P.3d 1018. As discussed more 12 fully in our notice of proposed summary disposition, Defendant was arraigned on 13 counts of aggravated driving while under the influence (second offense), concealing 14 identification, and improper backing on August 1, 2007. [MIO 2-3; RP 42] A pretrial 15 conference was set for August 30, 2007, and Defendant failed to appear. [MIO 3] 16 The magistrate court issued a bench warrant for Defendant’s failure to appear. [RP 174 33; MIO 3] Later that day, Defendant appeared and paid a $100 bench warrant fee, 1 and the magistrate court quashed the warrant. [MIO 3] 2 A jury trial was set for February 15, 2008, which was within 182 days of 3 August 30, 2007, when Defendant failed to appear at the pretrial conference and paid 4 the $100 bench warrant fee, but not w ithin 182 days of August 1, 2007, when 5 Defendant was arraigned. [MIO 3] See Rule 6-506(B). Defendant filed a motion to 6 dismiss for lack of timely prosecution which was denied by the magistrate court, and 7 Defendant entered a conditi onal plea. [RP 15, 24] 8 Defendant appealed to the district court which agreed with the State that the 9 payment of the $100 bench warrant fee was a triggering event under Rule 6-506(B)(5) 10 to restart the time for commencement of trial and remanded to the magistrate court for 11 imposition of the original sentence. [RP 72] Defendant appeals. 12 Defendant argues that payment of the $100 bench warrant fee was not a 13 triggering event under Rule 6-506 for purposes of restarting the 182-day period. 14 [MIO 6] He argues that, since he was never arrested on the bench warrant, his 15 voluntary appearance, payment of the bench warrant fee, and th e court’s quashing of 16 the warrant do not constitute a “surrender” as that term is used in Rule 6-506(B)(5). 17 [MIO 6-7] We disagree. 185 In our notice of proposed summary disposition, we directed Defendant’s 1 attention to this Court’s decision in Granado . In Granado , after the defendant failed 2 to appear in court on the morning of trial, the metropolitan court judge made a note 3 to issue a bench warrant. 2007-NMCA-058 , ¶ 4. However, the defendant appeared 4 in court that afternoon and provided an e xplanation that the trial court accepted as 5 reasonable. Id. ¶¶ 4-5. A bench warrant was never issued but , nonetheless, the trial 6 court ordered that the benc h warrant be cancelled. Id. ¶¶ 5, 9. 7 This Court held that the defendant wa s never “arrested” or taken into custody 8 for failure to appear because no bench warrant had been issued for his arrest. Id. ¶ 25. 9 We also held that the defendant did not “s urrender” to the trial court because no legal 10 arrest warrant was issued di recting that the defendant betaken into custody for failure 11 to appear. Id. ¶ 26. 12 In this case, unlike Granado , there was a bench warrant for Defendant’s arrest 13 issued on August 30, 2007. [RP 33] Th e bench warrant was only cancelled after 14 Defendant appeared, and he paid the benc h warrant fee. In our notice of proposed 15 summary disposition, we proposed to hold th at Defendant’s appearance after a bench 16 warrant had issued and his payment of the $100 bench warrant fee constituted 17 “surrender” because the appearance and payment were a voluntary submission to the 186 “legal authority that authorizes or direct s [Defendant] to be taken into custody.” Id. 1 ¶ 26. Therefore, we proposed to hold that , under Rule 6-506, the triggering date was 2 August 30, 2007, the date that Defendantsurrendered for failure to appear. 3 In his memorandum in opposition, Defendant’s only substantive challenge to 4 the analysis set forth in our notice of proposed summary disposition is to argue that 5 our interpretation is contrary to the e xpress language of Rule 6-506(B)(5) which 6 requires arrest or surrender pursuant to the issuance of a warrant. [MIO 7] We are 7 unpersuaded given that a warrant was issued in this case and that Defendant appeared 8 and paid the warrant fee. Although Defendant is correct th at he appeared voluntarily, 9 that only indicates that Defendant was not a rrested; it is insufficient to show that he 10 did not surrender. Moreover, we disagree that our decision leads to random and 11 arbitrary enforcement of the rule. [Id.] If Defendant had appeared before the warrant 12 issued, he could not have been subject to the fee because the warrant would not have 13 had to be quashed. If the warrant had never issued, the pr ovisions of Rule 6- 14 506(B)(5) could not have applied to De fendant, and the time period would have 15 commenced at arraignment. As the warrant did issue and Defe ndant did pay the $100 16 fee to have it quashed, the 182-day period ran from August 30, 2007, because that is 17 the day Defendant surrendered. 187 For the foregoing reasons as well as those set forth in our notice of proposed 1 summary disposition, we affirm. 2 IT IS SO ORDERED. 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5

WE CONCUR: 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

_________________________________ 9 MICHAEL E. VIGIL, Judge 10