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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellant, v. NO. 33,038 STEVEN PORTILLO, 6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Kenneth H. Martinez, District Judge Gary K. King, Attorney General Santa Fe, NM for Appellant Jorge A. Alvarado, Chief Public Defender Karl Erich Martell, Assistant Appellate Defender Santa Fe, NM for Appellee 16 MEMORANDUM OPINION VIGIL, Judge.

1 {1} The State appeals the district court’s order dismissing this case on the basis of a violation of the defendant’s right to a speedy trial. This Court issued a notice of proposed summary disposition, proposing to reverse and remand for a consideration of the factors outlined in State v. Garza, 2009-NMSC-038, ¶ 39, 146 N.M. 499, 212 5 P.3d 387. Defendant has filed a memorandum in opposition, which we have duly considered. As we are unpersuaded by Defendant’s arguments, we reverse and remand.

8 {2} The State suggested below that, for speedy-trial purposes, this case could be treated as a case of intermediate complexity. [RP 108] Relying upon that characterization and upon State v. Spearman, 2012-NMSC-023, 283 P.3d 272, the district court determined that the seventeen months that had elapsed since Defendant’s indictment were presumptively prejudicial. [RP 120-21] When a case is pending for longer than the presumptively prejudicial period, New Mexico courts must apply the four factors discussed in Garza to determine whether a speedy-trial violation has occurred. Garza, 2009-NMSC-038, ¶ 23. Instead of performing that analysis, the district court in this case relied upon outdated precedents to hold that—in order to avoid a dismissal—the State must rebut a presumption of prejudice arising from the fact that the case was pending longer than fifteen months. [RP 121]

1 {3} Our notice of proposed summary disposition proposed to reverse in order that the district court may conduct the proper analysis. [CN 4] In his memorandum in opposition, Defendant points out that the four Garza factors were discussed in both the motion to dismiss and in the State’s response thereto. [MIO 2-3; RP 85-91, 106- 113] Defendant also asserts that the district court’s citation to Spearman, which was decided well after Garza and which discusses the proper application of the four-factor test for a speedy-trial violation, establishes that the district court properly considered those factors. [MIO 2] {4} The order appealed, however, explicitly recites that, because of the seventeen months of delay, the State was required to “affirmatively establish that the Defendant’s speedy trial rights [had] not been violated,” before concluding that “the State [had] not made the requisite showing to overcome the presumption of prejudice.” [RP 121] These recitations in the dismissal order misstate the law in New Mexico, as Garza explicitly abolished the presumption relied upon by the district court in this case. Garza, 2009-NMSC-038, ¶ 21. Rather than giving rise to an actual presumption, a “presumptively prejudicial” period of delay merely triggers inquiry into the four-factor test for a violation of the right to a speedy trial. Id. {5} The district court’s reliance upon Spearman for an unrelated proposition—that the presumptive period for a case of intermediate complexity is fifteen months—does

1 not overcome the fact that the dismissal order misstates the law and then explicitly relies upon that misstatement of the law. [RP 121] Thus, for the reasons stated here and in our notice of proposed summary disposition, we reverse and remand this case to the district court for a consideration of the factors described in Garza.

5 {6} IT IS SO ORDERED.

6 __________________________________ 7 MICHAEL E. VIGIL, Judge WE CONCUR:

9 ___________________________________ RODERICK T. KENNEDY, Chief Judge

11 ___________________________________ MICHAEL D. BUSTAMANTE, Judge