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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,077
5 TOMMY VALDEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 Stephen D. Pfeffer, District Judge
9 Gary K. King, Attorney General
10 Albuquerque, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Sergio L. Viscoli, Assistant Appellate Defender
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
1 Tommy Valdez (Defendant) appeals his conviction for aggravated assault
2 entered pursuant to a conditional guilty plea reserving the right to appeal the denial
3 of his motion to dismiss for a speedy trial violation. In our notice of proposed
4 summary disposition, we proposed to affirm. Defendant has filed a memorandum in
5 opposition, as well as a motion to amend the docketing statement, both of which we
6 have duly considered. As we are not persuaded by Defendant’s arguments, we deny
7 his motion to amend, and we affirm.
8 Speedy Trial
9 In our notice of proposed summary disposition, we pointed out that it appeared
10 that the only motion Defendant actually made in the district court based on a claimed
11 speedy trial violation was an oral motion he made on June 6, 2011, less than one year
12 after the indictment. Since less than a year had passed since the date of the
13 indictment, we proposed to conclude that the time was insufficient to trigger a speedy
14 trial analysis under State v. Garza, which provides that, even in a simple case, the
15 speedy trial analysis is not triggered until there has been at least twelve months’ delay.
16 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387. Therefore, we proposed to hold
17 that the district court did not err in denying the June 6, 2011 motion.
18 In Defendant’s memorandum in opposition, he does not assert that the district
19 court erred in denying the June 6, 2011 motion. Instead, he argues that the district
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1 court erred in failing to subsequently dismiss the case for a speedy trial violation as
2 of February 6, 2012, when Defendant entered his plea. [MIO 3] However, Defendant
3 does not assert that he actually made a motion to dismiss on that date or sought any
4 other ruling on a renewed claim of a speedy trial violation. Instead, Defendant
5 suggests that because he reserved the right to appeal the speedy trial issue in his plea
6 agreement, the district court should have known that the issue he sought to appeal was
7 not the denial of the June 6 motion, but some later implied motion that he never
8 actually made in the district court. We decline to find any error based on the district
9 court’s failure to rule on a motion that was never made. “It is well-settled law that in
10 order to preserve a speedy trial argument [for appellate review], [the d]efendant must
11 properly raise it in the lower court and invoke a ruling.” State v. Lopez, 2008-NMCA-
12 002, ¶ 25, 143 N.M. 274, 175 P.3d 942. Even when a defendant has filed a motion to
13 dismiss based on speedy trial grounds, this Court will not review the issue if the
14 district court has not made a ruling on the motion, since the speedy trial analysis
15 requires factual determinations that must be made in the first instance in the district
16 court. Id.; see also State v. Olivas, 2011-NMCA-030, ¶ 22, 149 N.M. 498, 252 P.3d
17 722 (same), cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.
18 We recognize that Defendant attached a “memorandum of understanding” about
19 certain facts to his plea agreement [RP 51], but this memorandum has no impact on
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1 our decision in this case. First, it is not clear what effect this memorandum of
2 understanding was intended to have, other than to ensure that Defendant reserved his
3 right to appeal the speedy trial issue, a right that was already reserved in the plea and
4 disposition agreement itself. Although the memorandum recites certain facts, it is not
5 an agreement between Defendant and the State about the factual predicate of a speedy
6 trial claim, since the prosecutor’s signature is “[n]oted as to form only.” [RP 53] The
7 memorandum is not signed by the district court, and it therefore cannot be construed
8 as a set of factual findings relevant to any speedy trial claim Defendant may have had.
9 Because the district court did not err in denying Defendant’s June 6, 2001
10 motion to dismiss on speedy trial grounds, and because it did not err in declining to
11 rule on a subsequent motion that was never made, we find no reversible error on the
12 basis of Defendant’s claim of a speedy trial violation.
13 Motion to Amend the Docketing Statement
14 Valdez moves this Court to permit him to amend his docketing statement to add
15 a claim that his conviction in this case violated his right to be free from double
16 jeopardy because he had already been punished for the assault on the prison guard
17 when he was administratively disciplined by the prison. [MIO 6-11] We deny
18 Defendant’s motion to amend because the issue he seeks to raise is not viable. See
19 State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the
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1 defendant’s motion to amend the docketing statement to add a new issue when the
2 issue sought to be added was not viable). The law in New Mexico is that solitary
3 confinement and other disciplinary actions taken by a correctional facility do not give
4 rise to double jeopardy protections. See Washington v. Rodriguez, 82 N.M. 428, 429,
5 483 P.2d 309, 310 (Ct. App. 1971) (holding that disciplinary action by penitentiary
6 authorities, including “solitary confinement, restricted diet, and the denial of certain
7 privileges,” did not bar subsequent prosecution in a criminal action for the act that was
8 the basis of the prison discipline).
9 Therefore, for the reasons stated in this Opinion and in our notice of proposed
10 summary disposition, we affirm.
11 IT IS SO ORDERED.
12 _______________________________
13 RODERICK T. KENNEDY, Judge
14 WE CONCUR:
15 ___________________________
16 MICHAEL E. VIGIL, Judge
17 ___________________________
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1 TIMOTHY L. GARCIA, Judge
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