The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: __________________ 3 Filing Date: March 30, 2023 4 NO. S-1-SC-38802 5 STATE OF NEW MEXICO, 6 Plaintiff-Respondent, 7 v. 8 TITO LOPEZ, 9 Defendant-Petitioner. 10 ORIGINAL PROCEEDING ON CERTIORARI 11 Cristina T. Jaramillo, District Judge 12 Bennett J. Baur, Chief Public Defender 13 Steven James Forsberg, Assistant Appellate Defender 14 Santa Fe, NM 15 for Petitioner 16 Hector H. Balderas, Attorney General 17 Walter M. Hart III, Assistant Attorney General 18 Santa Fe, NM 19 for Respondent 1 OPINION 2 ZAMORA, Justice. 3 {1} In this opinion, we address whether the tolling provision contained in Rule 7- 4 506.1(D) NMRA of the Rules of Criminal Procedure for the Metropolitan Courts 5 applies to cases that are dismissed without prejudice by the court in addition to cases 6 voluntarily dismissed by the prosecution. In the metropolitan court, “[t]he trial of a 7 criminal citation or complaint shall be commenced within one hundred eighty-two 8 (182) days after” the date of arraignment or after the date of one of six other events 9 enumerated in the rule, whichever occurs last. Rule 7-506(B) NMRA. However, “[i]f 10 a citation or complaint is dismissed without prejudice and the charges are later 11 refiled,” “[t]he time between dismissal and refiling shall not be counted as part of 12 the unexpired time for trial under Rule 7-506.” Rule 7-506.1(D). We hold that this 13 tolling provision applies with equal force to cases dismissed by the court and to cases 14 voluntarily dismissed by the prosecution and conclude that, with the benefit of the 15 tolling provision here, the time for the State to bring Defendant Tito Lopez to trial 16 did not expire before Defendant entered into his conditional plea agreement. We 17 therefore affirm Defendant’s conviction. 18 I. BACKGROUND 19 {2} On January 19, 2018, Defendant was arraigned in the metropolitan court on 1 charges including aggravated driving while intoxicated (DWI) and reckless driving. 2 As applied to this case, Rule 7-506(B) required Defendant’s trial to commence 3 within 182 days of arraignment, which would have run on July 20, 2018, assuming 4 that no extensions of time were granted under Rule 7-506(C) and that no tolling was 5 warranted under Rule 7-506.1(D). 6 {3} The case was initially set for trial on April 30, 2018, but was continued to June 7 4, 2018, because Defendant had not received a police lapel video. The arresting 8 officer did not appear on June 4, and the State could not explain his absence. The 9 State requested a continuance, and Defendant moved …
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