This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,067 9 LUCIANO TORRES, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Kenneth H. Martinez, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Allison H. Jaramillo, Assist ant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 23 GARCIA, Judge. 242 Defendant appeals from the district court’s revocation of his probation. 1 Defendant raises several issues on appeal: (1) the district court did not have 2 jurisdiction to hear the State’s allegation that Defendant had vi olated his probation 3 because the hearing was held after Defendant completed his probati onary term; (2) the 4 district court erred in conc luding that he was a fugitive during his probationary period; 5 (3) his due process right was violated when the court heard evidence relating to 6 allegations not contained in the violation reports and then determined he had violated 7 his probation based on that evidence; and (4 ) his due process and confrontation rights 8 were violated when the court allowed the State to call a witness not disclosed on the 9 State’s witness list and when the court allowed her to testify to hearsay. The 10 dispositive issue is whether the State pres ented substantial evidence to prove that 11 Defendant was a fugitive. Weconclude that the State failed to present such evidence, 12 and consequently, the districtcourt erred in determining Defendant was a fugitive, in 13 revoking his conditional discharg e, and in issuing an unsatisfactory discharge from 14 probation. We reverse and remand. 15 BACKGROUND 16 On April 17, 2006, Defendant pled guilty to one count of c ontributing to the 17 delinquency of a minor. The court entere d an order of conditional discharge and 18 placed Defendant on probation fo r a period of one year, fivemonths, and twenty-nine 193 days. As part of his probation, Defendant had to submit to drug tests. In August 1 2007, Defendant submitted a urine sample. Defendant’s probation officer believed 2 the sample had been tamperedwith, and he asked Defendant to repeat the test. Upon 3 the request, Defendant ran out of the probation office. 4 The day after this incident, Defendant’s probation officer went to Defendant’s 5 father’s house, which Defendant had listed as his residence. When the probation 6 officer arrived at the residence, Defendant’s father told the officer that Defendant was 7 not there. The officer asked Defendant’s father to tell Defendant that he had twenty8 four hours to report to her or there would be a bench warrant issued for his arrest. The 9 probation officer did not hear from Defendant , and a bench warrant for Defendant was 10 issued on September 6, 2007. Shortly th ereafter, the State filed a motion to revoke 11 Defendant’s probation. The probation offi cer made no effort to serve the warrant. 12 Additionally, the warrant was never entered into the NCIC database. 13 On July 21, 2008, over two years after Defendant’s original probationary 14 sentence, Defendant was arrested on other ch arges. A hearing wa s held on September 15 17, 2008 on the State’s motion to revoke probati on. The State asked the district court 16 to revoke Defendant’s conditi onal discharge, sentence him to serve the remainder of 17 his original eighteen month sentence, and give him an unsatisfactory discharge from 18 probation. At the hearing, Defendant argue d that he had served all of his time on 194 probation and that the court no longer had jurisdiction to hear the matter. He further 1 argued that the State had not proven that Defendant was a fugitive because no attempt 2 was made to serve him with th e warrant. Therefore, he asserted that the facts in this 3 case were insufficient for the district court to find that he was a fugitive and add 4 additional time to his sentence. The districtcourt found that it had jurisdiction. The 5 court also found that Defendant violated th e terms and conditions of his probation and 6 had absconded. The court ordered Defendant into custody for fifty-four days, revoked 7 Defendant’s conditional disc harge, and issued an unsatisfactory discharge from 8 probation. This appeal followed. 9 ANALYSIS 10 Mootness 11 We begin by addressing the State’s argument that Defendant’s appeal is moot. 12 “Generally, appellate courts do not decide moot cases.” State v. Jose S. , 2007- 13 NMCA-146, ¶ 23, 142 N.M. 829, 171 P.3d 768. “An appeal is moot when no actual 14 controversy exists, and an appellate ruli ng will not grant the appellant any actual 15 relief.” State v. Sergio B. , 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764. The 16 State contends that there is no actual c ontroversy because Defe ndant’s “claims are 17 limited to the revocation of probation and [Defendant] has completed the sentence for 18 violating his probation.” We disagree. 195 Defendant’s appeal involves not only th e revocation of his probation but also 1 the revocation of his conditional discharge. Subsequent to Defendant’s guilty plea, 2 the district court entered an order of conditional discharge and placed Defendant on 3 eighteen months of probation. See NMSA 1978, § 31-20-13(A) (1994). The order 4 stated that there would be no adjudication of guilt and that further proceedings were 5 deferred. The district court later found th at Defendant had violated his probation and 6 revoked Defendant’s conditional discharge. Defendant was also sentenced to 7 additional time in custody and received anunsatisfactory discharge from probation. 8 Under a conditional discharge, there is no adjudication of guilt. Once 9 Defendant’s conditional disc harge was revoked, he became subject to all of the 10 collateral consequences associated with a felony conviction. See § 31-20-13(B); 11 Sergio B. , 2002-NMCA-070, ¶ 10. Since Defendant can still receive his conditional 12 discharge if the district court erre d, Defendant’s appeal is not moot. 13 Defendant’s Arguments 14 First, we must consider whether the St ate presented sufficient evidence to prove 15 that Defendant was a fugitive during his probationary period. The district court found 16 that Defendant was an absc onder and refused to credit hi m for time served while on 17 probation. We review the district c ourt’s finding under NMSA 1978, Section 31-21- 18 15(C) (1989) for substantial evidence. See State v. Apache , 104 N.M. 290, 292, 720 196 P.2d 709, 711 (Ct. App. 1986); see also State v. Jimenez , 2004-NMSC-012, ¶ 14, 135 1 N.M. 442, 90 P.3d 461 (“On appeal, the district court’s decision regarding whether 2 the defendant is entitled to credit or is instead a fugitive will be affirmed only if the 3 decision is supported by substantial evidence.”). Under this review, “all disputed facts 4 are resolved in favor of the decision belo w, all reasonable inferences are indulged in 5 support of that decision, and all inferen ces to the contrary are disregarded.” Apache , 6 104 N.M. at 292, 720 P.2d at 711. 7 Preliminarily, Defendant ar gues that because the probation revocation hearing 8 was held after Defendant’s probationary period had expire d, the district court no 9 longer had jurisdiction to consider the matter. Defendant is correct that “[a]s a general 10 matter, . . . a court has no jurisdiction to revoke probation after the probationary term 11 has been served.” State v. Neal , 2007-NMCA-086, ¶ 17, 142 N.M. 487, 167 P.3d 935. 12 However, there is an exception for defendants who have been fugitives during the 13 probationary period because the probationaryperiod tolls while a defendant is in 14 fugitive status. See Apache , 104 N.M. at 291-92, 720 P.2d at 710-11 (holding that 15 “the judicial determination of fugitive status shall be made onl y after the probationer 16 has been found and brought before the court, regardless of whether this occurs before 17 or after the date on which probation was orig inally to have expired”). It would be 18 contrary to the legislative intent of Sec tion 31-21-15(C) and a violation of due process 197 to require the state to hold a probation revocation hearing and determine fugitive 1 status while a defendant is not present. Apache , 104 N.M. at 292, 720 P.2d at 711. 2 Pursuant to Apache , the district court maintained jurisdiction over Defendant to 3 determine whether he was a fugitive during a portion of his probation. See id. 4 Accordingly, the district court properl y conducted the probation revocation hearing 5 where Defendant’s original probationary period would have e nded unless tolling was 6 found to apply by the court. 7 We now consider the merits of Defendant’s argument that the district court 8 erred in determining that he was a fug itive and revoking his probation. A defendant 9 “is entitled to credit for all the time servedon probation unless the [district] court 10 determined that [the defendant] was a fugitive” while on probation. State v. Thomas , 11 113 N.M. 298, 300, 825 P.2d 231, 233 (Ct. App. 1991), overruled on other grounds 12 by Jimenez , 2004-NMSC-012, ¶ 11; see § 31-21-15(B), (C); Jimenez , 2004-NMSC13 012, ¶ 8; Neal , 2007-NMCA-086, ¶ 30

. “The state has the burden of proving that a 14 defendant is a fugitive within the meaning of the statute.” Thomas , 113 N.M. at 300, 15 825 P.2d at 233. Under Section 31-21-15(C), a defendant is a fugitive if a bench 16 warrant cannot be served. To prove that a defendant is a f ugitive, the state is required 17 to show “either (1) it unsuccessfully atte mpted to serve the warrant on the defendant 18

or (2) any attempt to serve the defe ndant would have been futile.” Jimenez , 2004- 198 NMSC-012, ¶ 8. “Our cases have made it clear that the state must ordinarily prove 1 that it issued a warrant for the [defendant’s ] arrest and entered it in the National Crime 2 Information Center (NCIC) database in order to support a finding of fugitive status.” 3 Neal , 2007-NMCA-086, ¶ 31. 4 In Neal , the state failed to prove that the de fendant was a fugitive when the state 5 obtained the bench warrant, and entered it into the NCIC database, but the state never 6 attempted to serve the defendant with the warrant or prove that his location was 7 unknown. Id. ¶¶ 32-34. In Jimenez , the defendant was not a fugitive when the state 8 obtained a bench warrant but failed to attempt to serve the warrant or enter it into the 9 NCIC database. 2004-NMSC -012, ¶¶ 3, 15. In Thomas , the state presented 10 insufficient evidence to prove the defe ndant was a fugitive where there was no 11 evidence that the warrant was entered into th e NCIC database or that an effort was 12 made to locate and serve the defendant. 113 N.M. at 302, 825 P.2d at 235. 13 The present case is similar to Neal , Jimenez , and Thomas . After the issuance 14 of the warrant, no efforts were made to lo cate Defendant or to serve him with the 15 warrant. The State did not enter th e warrant in the NCIC database. See Jimenez , 16 2004-NMSC-012, ¶ 15 (noting that the state’s failure to enter the warrant into the 17 NCIC database “weigh[ed] heavily against a finding that the [s]tate acted with due 18 diligence” in attempting to serve a warrant to a defendant on probation). The district 199 court erred in finding that it would have been futile to attempt to serve Defendant and 1 that he was a fugitive because the State failed to enter the warrant into the NCIC 2 database and failed to makeany effort to locate Defendant once the warrant was 3 issued. Defendant’s probation officer’s si ngle conversation with Defendant’s father 4 before the warrant was issued is insufficien t to show reasonable efforts on the part of 5 the State to locate Defendant and issue th e warrant. Consequently, Defendant could 6 not be found to be a fugitive when no efforthad been made to locate him after the 7 warrant has been issued. The district court erred in determini ng that Defendant was 8 a fugitive and in ruling on the State’s motion to revoke probation that was premised 9 upon the tolling of Defendant’s probationary period. 10 The State contends that the evidence pres ented was sufficient to prove that any 11 attempt to serve the warrant on Defendant would have b een futile and attempts to 12 analogize this case to the facts in Apache , 104 N.M. 290, 720 P.2d 709. We are not 13 persuaded. In Apachethe state made efforts to locate the defendant. Id. at 291, 720 14 P.2d at 710. Prior to the issuance of the bench warrant, the probation officer 15 attempted to locate the defendant at the de fendant’s sister’s house where the defendant 16 said he was staying and at a hotel, which the officer believed wa s the defendant’s last 17 known residence. Id. After the warrant was issued, the warrant officer followed 18 standard procedures by sendi ng two bulletins six months ap art to the defendant’s most 1910 recent address on file with the department , and he listed the warrant with the NCIC 1 database. Id. The efforts in Apache , unlike in this case, demonstrated that the state 2 had attempted to serve th e warrant on the defendant. 3 Additionally, the State argues that if Defe ndant is correct in his assertion that 4 his fugitive status was not proven at the h earing then the proper remedy is to remand 5 the case to the district court to determin e the proper credit to be given against the 6 sentence. We disagree. The facts are undisputed that Defendant’s probationary 7 period was scheduled to end well before he was brought be fore the district court on 8 July 21, 2008. A tolling of the probationary period was the stated basis for retaining 9 jurisdiction to revoke probation. Thus, a recalculation of Defendant’s proper credit 10 for time served on his original probation is unnecessary. Once the State failed to 11 prove that Defendant had been a fugitive during the final portion of his probation, it 12 effectively conceded that jurisdiction to revoke probation was lost. Therefore, the 13 district court no longer had jurisdiction over Defendant. See Neal , 2007-NMCA-086, 14 ¶ 17; State v. Lara , 2000-NMCA-073, ¶ 12, 129 N.M. 391, 9 P.3d 74 (“[T]he [district] 15 court is without jurisdiction to enter an order of unsatisfactory completion after the 16 probation period ends.”). Wereverse and remand the case to the district court to 17 reinstate Defendant’s conditional discharge and to issue a certificate of satisfactory 18 completion of probation. Since we are re versing on this issue, Defendant’s other 1911 arguments are now moot, and wedecline to address them. 1 CONCLUSION 2 The State failed to prove that Defendant was a fugitive during his probationary 3 period. Since the State failed to meet its burden and Defendant’s probation period had 4 ended prior to the probation revocation h earing, the district court no longer had 5 jurisdiction to determine that Defendant vi olated his probation. The district court 6 erred when it granted the motion to revokeprobation after the probationary period 7 expired. We therefore remand to the distri ct court to reinstate Defendant’s conditional 8 discharge and to issue a certification of satisfactory completion of probation. 9 IT IS SO ORDERED. 10

______________________________ 11 TIMOTHY L. GARCIA, Judge 12

WE CONCUR: 13

_________________________________ 14 CYNTHIA A. FRY, Chief Judge 15

_________________________________ 16 JAMES J. WECHSLER, Judge 17