(dissenting).
{16} Both Defendant and the State agree that for purposes of this appeal, Defendant never missed a hearing in court. Because Defendant never failed to appear for any proceeding related to furthering the disposition of his criminal case, I cannot concur in the majority’s conclusion that resetting the six-month period under Rule 5-604(B)(5) was triggered by his “failure to appear.”
{17} Failing to abide by conditions of release is unrelated to appearing in a place or before an official where any matter in a pending case might be resolved. I use such language recalling that the criminal statute, Section 31-3-9 (Failure to Appear) was expanded after we held that failing to appear for a probation violation hearing was not a failure to appear for a “criminal proceeding” under the former statute. State v. Foster, 1998-NMCA-147, ¶ 1, 125 N.M. 830, 965 P.2d 949. As a trial judge, I have seen persons who did not appear pretrial at places other than court, as “fixed by [my] terms of recognizance” under Section 31-3-2(A), nevertheless appear in court as required by a notice or summons for a scheduled hearing before the court. I might conceive of a situation short of triggering liability under a strict application of the elements of the Failure to Appear criminal statute that might reset the six-month period under Rule 5-604. Here, though, Defendant’s actions do not support splitting hairs, and the Failure to Appear statute and its jurisprudence is instructive. I respectfully dissent, declining to partake in the majority’s misconception in this case.
{18} By July 31, 2006, the State found out that Defendant had not returned to jail and requested a bench warrant, which was ordered by the district court on August 3 for “failing] to return to [jail] as directed” in the furlough order. At the hearing on the motion to dismiss, defense counsel represented to the court that his office had contacted the district court on August 7 and learned that the trial date was “taken off the docket” because “the bench warrant was outstanding.” On August 28, at the arraignment on the warrant and without any discussion as to trial deadlines or new extensions, a trial date was set for January 2007.
{19} Defendant maintains that because he was arrested four days before his August 22 trial date, there was no need to vacate the trial. I regard this argument as irrelevant. By August 22, there was no trial setting to miss. The trial date had been vacated at least ten days before Defendant was arrested. Vacating a trial date is within the district court’s discretion, and nothing here indicates that the court’s discretion was abused or that Defendant was prejudiced thereby. State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. The district court might have waited to see if Defendant actually appeared for trial before vacating the trial date, thus confirming a factual failure to appear by any standard. Had Defendant appeared for trial, considerations concerning the readiness of either side to proceed would likely have called a further rule extension to mind once the warrant was addressed. Regardless, what could have been is not fact for consideration here.
{20} The case of a defendant who, without failing to appear at any hearing or proceeding, absconds but is returned prior to his trial date has not yet arisen in our jurisprudence. Rule 5-604(B)(5) states:
The trial of a criminal case or habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest:
(5) if the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or surrender of the defendant!!]
{21} When construing rules of procedure, we apply the same rules that are applicable to statutory construction. Walker v. Walton, 2003-NMSC-014, ¶ 8, 133 N.M. 766, 70 P.3d 756. We therefore look first to the plain meaning of the rule and refrain from further interpretation when the language is clear and unambiguous. State v. Gutierrez, 2006-NMCA-090, ¶ 7, 140 N.M. 157, 140 P.3d 1106. “When the language of the rule is not defined in the rule, it is given its ordinary meaning.” State v. Granado, 2007-NMCA-058, ¶ 22, 141 N.M. 575, 158 P.3d 1018; State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct.App.1989).
{22} At the hearing on the motion to dismiss in December 2006, the State argued nothing more than that Defendant’s “arraignment on a bench warrant ... triggered [Rule] 5-604.” This might explain vacating the trial date but not the State’s inaction during the time remaining on the rule. A mere “arrest” on a bench warrant is not the only requirement under Rule 5 — 604(B)(5), which triggers resetting the six-month period; the warrant must clearly be issued for “failure to appear.” That is the plain language of the rule. Additionally, Defendant escaped from custody; he did not fail to appear. Hill, 117 N.M. at 808, 877 P.2d at 1111; see NMSA 1978, § 30-22-8 (1963).
{23} The district court’s warrant was for failure to abide by conditions of release. Defendant was arrested on that warrant; he was not arrested for failure to appear. Defendant argues that there is no provision in the rule for failure to return from a furlough and that failure to appear under Rule 5-604(B)(5) occurs only when a defendant fails to appear before a judicial officer at a scheduled hearing..
{24} The criminal Failure to Appear statute has just such a provision, and Defendant contends that the statute “connects” to the rule. Section 31-3-9 makes it a crime to “willfully fail[ ] to appear before any court or judicial officer” when that person is “released pending any proceeding related to the prosecution or appeal of a criminal offense.” Id.; see Hicks, 2002-NMCA-038, ¶ 15, 132 N.M. 68, 43 P.3d 1078 (holding that criminal faffing to appear requires not coming to court as directed by a notice, subpoena, summons, or other legal process). Indeed, no conviction has been sustained under the statute without the defendant willfully faffing to appear before a court as specifically ordered. See id. (citing State v. Solano, 1999-NMCA-019, ¶ 2, 126 N.M. 662, 974 P.2d 156 (charging the defendant with failure to appear at trial)); State v. Peppers, 110 N.M. 393, 394, 796 P.2d 614, 615 (Ct.App.1990) (affirming conviction where the defendant failed to appear at a sentencing hearing); State v. Aranda, 94 N.M. 784, 785, 617 P.2d 173, 174 (Ct.App.1980) (affirming conviction where the defendant failed to appear for trial). When a defendant orally promised to appear to enter a plea the following day and was released on his own recognizance without issue of court process, his conviction for failure to appear was reversed. State v. Easterling, 89 N.M. 486, 487-88, 553 P.2d 1293, 1294-95 (Ct.App.1976). Here, we are concerned with Defendant’s failure to return from a furlough.
{25} Despite the cause-and-effect relationship between Defendant’s absconding and the district court’s issuing a bench warrant and vacating the trial date, causing a delay of the trial date is also not something that automatically triggers a new six-month period. Further, we have previously stated that “the purpose of the rule [is] to assure prompt disposition of criminal cases, not to effect dismissals by technical applications of the rule.” Solano, 1999-NMCA-019, ¶ 12, 126 N.M. 662, 974 P.2d 156 (internal quotation marks and citation omitted).
{26} A reset of the six-month period under Rule 5-604(B)(5) requires some action by a defendant that is at least the equivalent of failing to appear in court. Earlier I suggested a workable view shy of the criminal act of failing to appear as directed, at a place or before an official where the resolution of any matter in a pending case might occur. The majority instead joins the State to assert by reference to Section 31-3-2 that being the subject of a warrant for failing to abide by conditions of release requiring one to appear at a time and place is also a failure to appear under Rule 5-604(B)(5). This view is too broad. Section 31-3-2 clearly differentiates between a defendant’s appearing at times and places fixed by “terms of recognizance,” Section 31-3-2(A), and failing to appear at times and places “fixed by the terms of his bail bond,” Section 31-3-2(B). I read Rules 5^101, -402, and -403 NMRA as distinguishing violations of bond for appearance in court, provoking a warrant and possible forfeiture of bond, from violations of the conditions of release, provoking a warrant and a hearing before the court to realign release conditions imposed under Rule 5-401(D). Such realignment to “assure orderly administration of justice” may revoke conditions of recognizance and hold a defendant for trial. Id. Indeed, such realignment happened previously in this case when Defendant was arrested on an earlier warrant for violating conditions of his release, resulting in his pretrial confinement with which we are now concerned. The hearing that followed this prior warrant arrest is analogous to the warrant arraignment that occurred on August 28, 2006. Once apprehended on the prior warrant, Defendant was ordered held for trial. Extensions of the six-month period that were required after this prior warrant arrest were obtained.
{27} Violating conditions of release does not necessarily impact commencement of a trial or judicial proceedings — the subject of Rule 5-604. Our Supreme Court’s opinion in State v. Romero, 2007-NMSC-030, ¶ 5, 141 N.M. 733, 160 P.3d 914, differentiated between failing to appear for a proceeding in court, for which bond could be forfeited, and violating conditions of release, for which it could not. Bond guarantees appearance in court and conditions of release do not. Hence, violating conditions of release does not constitute a failure to appear sufficient to order the forfeiture of a bond. See id.
{28} Failing to appear itself does not trigger resetting the six-month period under Rule 5 — 604(B)(5), nor is issuing a bench warrant for failure to appear a triggering event under a rule identical to Rule 5 — 604(B)(5). Granado, 2007-NMCA-058, ¶¶ 21, 27, 141 N.M. 575, 158 P.3d 1018. What is required by the plain language of the rule is that the defendant be “arrested or surrender [ ] ... for failure to appear[.]” Rule 5 — 604(B)(5) (emphasis added). In this case, Defendant never failed to appear in court. There was no bench warrant issued for failure to appear, and Defendant was not arrested for failure to appear.
{29} We stated clearly in State v. Guzman, 2004-NMCA-097, ¶ 11, 136 N.M. 253, 96 P.3d 1173, that when time remains on the rule and the state does not take appropriate action within those limits to ensure that a trial occurs, then the defendant has no more obligation than to file a motion to dismiss. In Guzman, the defendant did not request a dismissal until after the district court granted a rule extension nunc pro tunc and forfeited her entitlement to a dismissal under Rule 5-604. Guzman, 2004-NMCA-097, ¶¶ 11-13, 136 N.M. 253, 96 P.3d 1173. We see little in the record that indicates consequences of Defendant’s actions other than the assumption that a warrant would automatically vacate the trial date. More to the point, even assuming that the State was not aware of Defendant’s arrest before his arraignment on the warrant, the State was certainly aware of his arrest by the time of the arraignment on August 28. If we are to give full credence to the purpose of the rule being to further prompt trials of criminal cases, see Mendoza, 108 N.M. at 448, 774 P.2d at 442, we are correct to ask why, after learning before August 28 of Defendant’s return, the State did nothing by September 27 to either secure a trial date or another extension.
{30} The majority opinion calls attention to Flores and Jammillo in particular as two of the multiple eases it has cited “in which our courts have eschewed a technical interpretation of the rule,” noting that in each case the state had foregone seeking an extension of the six-month limitation, “as was true in this case also.” While espousing a concept for failure to appear that is broader than the criminal statute, I disagree with the majority; neither Jaramillo nor Flores lacked a triggering event, as does this case, for rule-specific reset of the six-month period. It is also significant that a special concurrence in Jaramillo points out the necessity of limiting Jammillo, advocating that “whether a Rule 5-604 violation has occurred should be decided on a case-by-case basis” and that the Jammillo case “can be decided using settled applicable doctrines without trying to anticipate how to decide other Rule 5-604 cases that [have] come before us.” Jaramillo, 2004-NMCA-041, ¶21 (Vigil, J., specially concurring). The majority discusses Jammillo, which dealt with severance of trials, an appeal by one co-defendant, and its effect on the other co-defendant who waited out the rule but ran afoul of it; and the case involved a reset of the six-month period under Rule 5-604(B)(3). Jammillo, 2004-NMCA-041, ¶¶ 23-26 (Vigil, J., specially concurring). This Court held that under Rule 5-604(B)(4) the “operative date to commence trial was six months after the mandate was filed in [the district court on] co-defendant’s appeal.” Jammillo, 2004 NMCA-041, ¶30 (Vigil, J., specially concurring). The application of Jammillo beyond its facts in this case is inapposite. The majority also discusses Flores, in which the Supreme Court upheld the trial court’s order to reset the six-month period as of the date of defendant’s arrest for “failure to appear at the pretrial conference [as prescribed under Rule 5-604(B)(5) ].” Flores, 99 N.M. at 46, 653 P.2d at 877. Flores did not require the manufacturing of a failure to appear before the court. Unlike Jaramillo and Flores, in which a specific event prescribed under the rule triggers a resetting of the six-month period, this case lacks the triggering event under Rule 5-604.
{31} Defendant was arrested on the district court’s warrant for failing to abide by conditions of release. See § 31-3-2. In this case, as in Granado, no warrant existed to arrest the defendant for failure to appear, nor did there exist any legal authority to take him into custody for failure to appear. When he appeared, it was for arraignment on the warrant concerning conditions of release. Therefore, he did not surrender for failure to appear, nor was he arrested for it. Granado, 2007-NMCA-058, ¶26, 141 N.M. 575, 158 P.3d 1018. No triggering event occurred in this case to reset the six-month period, and it expired without extension on September 27, 2006. Therefore, bearing no affection for Defendant’s derailing this process to his benefit, I view the facts as failing to support the triggering event necessary to re-start the period for trial and respectfully dissent.