1998 -NMCA- 158, State v. Ahasteen

• Citation: 1998 NMCA 158,968 P.2d 328,126 N.M. 238
• Decision Date: 30 July 1998
• Docket Number: No. 19029,19029
• Parties: , 1998 -NMCA- 158 STATE of New Mexico, Plaintiff-Appellant, v. Lowell AHASTEEN, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 328

968 P.2d 328

126 N.M. 238, 1998 -NMCA- 158

STATE of New Mexico, Plaintiff-Appellant, v. Lowell AHASTEEN, Defendant-Appellee.

No. 19029.

Court of Appeals of New Mexico.

July 30, 1998.

Certiorari Denied Oct. 14, 1998.

Tom Udall, Attorney General, Bill Primm, Ass't Attorney General, Santa Fe, for Appellant.

Phyllis H. Subin, Chief Public Defender, Susan Gibbs, Ass't Appellate Defender, Santa Fe, for Appellee.

OPINION

PICKARD, J.

¶1 The issue we decide today is whether the district court's order remanding Defendant's misdemeanor driving while intoxicated (DWI) trial to magistrate court is an order from which the State may appeal. We also discuss a prosecutor's discretion to file misdemeanor charges in either magistrate court or in district court and whether the limits placed upon that discretion were violated in this case. We hold that the district court's order effectively dismissed the charges and, under the doctrine of practical finality, this Court has jurisdiction to review the State's appeal. We also hold that the State made an adequate showing that it did not exhibit an improper motive in choosing to file this case in district court. Accordingly, we reverse.

BACKGROUND

¶2 At a DWI roadblock, Defendant was arrested and later charged with DWI, first offense, contrary to NMSA 1978, § 66-8-102(E) (1993). The State originally filed the charge against Defendant in magistrate court, and the case was assigned to Judge Gillson. At a pre-trial conference, Defendant challenged the legality of the roadblock and orally moved to suppress all evidence gathered against him at the stop. The day after the conference, the State dismissed without prejudice the charge against Defendant in magistrate court. Two weeks later, the State refiled the charge in district court.

¶3 Thereafter, Defendant filed a motion to remand the case to magistrate court. Defendant argued that the local district attorney's office had an unwritten policy to charge all misdemeanor crimes in magistrate court. Defendant contended that the State had filed thousands of DWI charges in magistrate court and in only three cases in one particular year did the State choose to file DWI charges in district court. In each of those cases, the defendant challenged a roadblock. Defendant also argued that the prosecutor purposely dismissed the charges and refiled in district court because the case had been assigned to Judge Gillson in magistrate court. Defendant explained that in a different case, Judge Gillson had granted a defense motion to suppress evidence collected at a sobriety checkpoint. Defendant accused the prosecutor of forum shopping and also of denying Defendant his right to a trial de novo in district court.

¶4 The prosecutor denied that he was forum shopping and stated that he moved the case to district court in order to avoid having to hold two hearings on the roadblock issue. The prosecutor also commented on defense tactics to challenge roadblocks in magistrate court and again in district court on appeal thus requiring a hearing in each court. This practice, the prosecutor explained, wasted resources, thereby forcing the State into offering plea bargains. Therefore, the prosecutor argued, because Defendant was entitled to an appeal de novo in district court, it was more economical to bring the case there in the first instance and to have the roadblock issue decided in one proceeding.

¶5 The prosecutor also stated that he had the right to determine in which court to bring charges. The prosecutor noted that the district court had concurrent jurisdiction with the magistrate court over misdemeanors and that Defendant had no right to insist that his case be tried in magistrate court. Also, Defendant would not be prejudiced by having his case heard in district court because he could appeal an adverse decision to the Court of Appeals, the prosecutor argued.

¶6 Defendant responded by urging the district court judge to look beyond the State's right to file charges in district court following a nolle prosequi in magistrate court and to rule that the prosecutor was engaging in impermissible forum shopping. At the conclusion of the hearing, the district court judge, without explanation, remanded the case to magistrate court.

DISCUSSION

¶7 In our notice assigning this case to the general calendar, we asked the parties to discuss whether the order to remand is an appealable order, thus providing this Court with jurisdiction to hear the State's appeal. See Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815, 907 P.2d 994, 996 (1995) (stating that this Court can raise a jurisdictional issue sua sponte). Accordingly, as a threshold issue, we address whether the State's appeal is properly before this Court.

A. Jurisdiction

¶8 Defendant argues that this Court does not have jurisdiction to hear the State's appeal because the order remanding the case to magistrate court is not a final, appealable order. On the other hand, the State argues that the district court's refusal to hear the case was in essence a dismissal of the charges from which the State can appeal under NMSA 1978, § 39-3-3(B)(1) (1972) (providing that in a criminal case the State may appeal a district court order that dismisses a complaint, indictment, or information as to any one or more counts). The State explains that there is no provision by which the district court could remand the case to magistrate court after it had been dismissed in that forum. The State contends that we should apply the doctrine of practical finality and allow the appeal to proceed. We agree.

¶9 Ordinarily, the State's appeals are limited by statute to decisions either suppressing evidence or dismissing one or more counts of the charging document. See § 39-3-3(B). However, our Constitution guarantees that the State may appeal "a disposition contrary to law." See State v. Doe, 95 N.M. 90, 92, 619 P.2d 194, 196 (Ct.App.1980). Our determination of whether the remand order is in fact appealable must be informed by considerations of practical finality similar to those present in cases involving the statutory right to appeal in more routine cases.

¶10 The general rule is that this Court's jurisdiction is limited to "appeals from final judgments, interlocutory orders which practically dispose of the merits of an action, and final orders after entry of judgment which affect substantial rights." McKenzie v. Fifth Judicial Dist. Court, 107 N.M. 778, 778, 765 P.2d 194, 194 (Ct.App.1988); see also High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 33, 888 P.2d 475, 479 (Ct.App.1994) (right to appeal is generally limited to final orders and judgments). A final order is commonly defined as an order that decides all issues of fact and law necessary to be determined or which completely disposes of the case to the extent the court had the power to dispose of it. See B.L. Goldberg & Assoc., Inc. v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985). However, as our Supreme Court has acknowledged, this definition is not an "absolute, inflexible rule" but a general statement with various exceptions. See Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992). Additionally, our law on the finality of judgments is clear that the "the term 'finality' is to be given a practical, rather than a technical, construction." Id. In determining whether a judgment is final, our courts are instructed to look to the substance and effect of an order and not to its form. See id.

¶11 In this case, it would be easy to rule that the district court's order remanding the case to magistrate court for trial is not a final order. Ordinarily, an order remanding a case for further proceedings in a lower court is not considered "final" for purposes of appeal. That is because the case has not ended; " '[i]t simply has gone to another forum and may well return again.' " High Ridge Hinkle Joint Venture, 119 N.M. at 34, 888 P.2d at 480 (quoting Mall Properties, Inc. v. Marsh, 841 F.2d 440, 441 (1st Cir.1988) (per curiam)). Allowing an appeal from an order of remand might encourage piecemeal appeals and appeals that would be rendered moot if we had allowed the lower court to address the matter. See High Ridge Hinkle Joint Venture, 119 N.M. at 34, 888 P.2d at 480. Moreover, a party dissatisfied with the results on remand can ordinarily obtain review of that decision in district court and ultimately in this Court. Id. That is, review of the district court's decision to remand " 'is not denied; it is simply delayed.' " Id. (quoting Mall Properties, Inc., 841 F.2d at 443).

¶12 Nonetheless, in this case, to delay the State's appeal may very well act to deny it. In High Ridge Hinkle Joint Venture, we specifically acknowledged that there is an exception to the general rule of finality when an order remanding a case would preclude a party from appealing a decision. See id. at 34, 888 P.2d at 480. "Under the doctrine of practical finality an appellate court will review a remand order if the issue raised on appeal would, as a practical matter, not be available for review after a decision on remand." Id.

¶13 In this case, a trial on remand could result in a judgment of acquittal, which would preclude the State from appealing. See § 39-3-3(C). Additionally, even if Defendant is convicted, the State's ability to have this issue heard on appeal would be hampered because the issue may well be deemed moot or harmless at that time. Thus, we should apply the doctrine of practical finality to allow the State to appeal the district court's order to remand. See Bustamante v. C. De Baca, 119 N.M. 739, 741, 895 P.2d 261, 263 (Ct.App.1995) (allowing appeal from order remanding case if an "appellant would effectively be precluded from a meaningful appeal by [the] Court's refusal to consider the appeal"); Cox v. Municipal Boundary Comm'n, 1998-NMCA-025, p 12, 124 N.M. 709, 954 P.2d 1186 (if ability of party to obtain...