State v. Gunzelman

Decision Date25 May 1973
Docket NumberNo. 9619,9619
Citation1973 NMSC 55,512 P.2d 55,85 N.M. 295
PartiesSTATE of New Mexico, Petitioner, v. Thomas Jon GUNZELMAN, Respondent.
CourtNew Mexico Supreme Court
David L. Norvell, Atty. Gen., Ronald Van Amberg, Asst. Atty. Gen., Santa Fe, for petitioner

Douglas T. Francis, Louis G. Stewart, Jr., Albuquerque, for respondent.


Upon consideration of the motion for rehearing, the original opinion heretofore filed is withdrawn and the following substituted therefor.


MONTOYA, Justice.

Defendant was convicted of the crime of burglary. On appeal to the Court of Appeals, defendant sought to overturn his conviction because of the trial court's failure to instruct on an essential element of the crime. The Court of Appeals reversed the conviction. State v. Gunzelman, 84 N.M. 451, 504 P.2d 1084 (Ct.App.1972).

The State filed a petition for a writ of certiorari in this case to review the decision of the Court of Appeals. The writ was granted because of conflict with prior decisions of this Court and because of the substantial public interest in the case and its great importance to the administration of our criminal justice system. Our decision to grant a writ of certiorari to the Court of Appeals on behalf of the State was a departure from past decisions of this Court. Because it is important to the administration of criminal justice in this State we will discuss the reasons why certiorari was granted before we reach the merits of the case.

'The office of the common-law writ of certiorari is to bring before the court for inspection the record of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law. * * *'

Annot. 91 A.L.R.2d 1095, 1096, Certiorari, Right of Prosecution.

Generally, the state or the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case, in the absence of a constitutional provision or statute conferring such a right.

Considering the background of the generally accepted view of the limited right of appeal in criminal cases by the prosecution, we need to examine the pertinent constitutional and statutory provisions existing in New Mexico.

While it is more often the case that state statutes or constitutional provisions which set forth the scope or function of the writ of certiorari are found together with provisions relating to the right of the state to appeal or bring error in criminal matters, this is not completely the case in New Mexico.

There are constitutional provisions which provide for this Court's jurisdiction in the instant case. N.M.Const. art. VI, § 2, states:

'Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the Supreme Court. In all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as may be provided by law; provided that an aggrieved party shall have an absolute right to one appeal.'

Article VI, § 3, states:

'The Supreme Court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts; it shall also have power to issue writs of mandamus, error, prohibition, habeas corpus, certiorari, injunction and all other writs necessary or proper for the complete exercise of its jurisdiction and to hear and determine the same. Such writs may be issued by direction of the court, or by any justice thereof. Each justice shall have power to issue writs of habeas corpus upon petition by or on behalf of a person held in actual custody, and to make such writs returnable before himself or before the Supreme Court, or before any of the district courts or any judge thereof.' (Emphasis added.)

Article VI, § 2, supra is the genesis of this Court's appellate jurisdiction, as it provides that '* * * the Supreme Court shall exercise appellate jurisdiction as may be provided by law; * * *.' Therefore, we need to examine the applicable statutes. Section 16--7--14, N.M.S.A., 1953 Comp. (1972 Interim Supp.), states:

'A. The appellate jurisdiction of the Supreme Court is coextensive with the state and extends to all cases where appellate jurisdiction is not specifically vested by law in the court of appeals.

'B. In addition to its original appellate jurisdiction, the Supreme Court has jurisdiction to review by writ of certiorari to the court of appeals any civil or criminal matter in which the decision of the court of appeals:

'(1) is in conflict with a decision of the Supreme Court;

'(2) is in conflict with a decision of the court of appeals;

'(3) involves a significant question of law under the Constitution of New Mexico or the United States; or

'(4) involves an issue of substantial public interest that should be determined by the Supreme Court.

'* * *.'

This statute was interpreted before amendment in State v. Paul, 80 N.M. 746, 461 P.2d 228 (1969). The only difference in the former version of § 16--7--14, supra, is that it stated:

'* * * (t)he Supreme Court has jurisdiction to review by writ or certiorari to the court of appeals any matter * * *.' (Emphasis added.)

As mentioned, the amendment changed this to '* * * any civil or criminal matter * * *.' (Emphasis added.)

State v. Paul, supra, held that the State had no right to review, by a writ of certiorari, a decision of the Court of Appeals, reasoning that if the State has no right to appeal it should not be permitted to accomplish by certiorari what it cannot do by appeal. Because we do not believe the change from 'any matter' to 'any civil or criminal matter' alters the meaning of § 16--7--14, supra, since the former is presumed to include the latter, we re-examine our decision in State v. Paul, supra.

In State v. Paul, supra, even though the State based its request for writ of certiorari on the four grounds required by § 16--7--14, supra, the writ was denied. The Court noted that § 21--10--2.1, N.M.S.A., 1953 Comp. (Repl.Vol. 4, 1970), makes no provision for the State to appeal to the Supreme Court where the case had gone to trial, defendant convicted, and such conviction reversed by the Court of Appeals. Since then § 21--10--2.1, supra, has been replaced. See § 21--10--2.1, N.M.S.A., 1953 Comp. (1972 Interim Supp.). The new statute, like the old, makes no provision for an appeal to this Court in the situation presented to the Court in State v. Paul, supra, or in the case at bar. The Court, in State v. Paul, supra, 80 N.M. at 747, 461 P.2d at 229, reasoned that:

'The State should not be permitted to accomplish by certiorari what it cannot do by appeal. The right of the State to prosecute error in a criminal case exists only when such right is conferred by statute. (Citations omitted.)

'Where the State has no right to appeal from an order granting defendant a new trial, certiorari could not be granted as a substitute. To bring up the matter by certiorari, would be to accomplish by indirection what the statute does not expressly permit. (Citation omitted.)'

It was this same reasoning that prompted the United States Supreme Court to deny an application by the United States for a writ of certiorari to review a Circuit Court of Appeals' decision which reversed a lower court conviction in a criminal case. United States v. Dickinson, 213 U.S. 92, 29 S.Ct. 485, 53 L.Ed. 711 (1909).

In United States v. Johnston, 268 U.S. 220, 45 S.Ct. 496, 69 L.Ed. 925 (1925), the Attorney General argued that the statute which precluded the United States from seeking certiorari, referred to in Dickinson, supra, had been amended in such a way as to show that Congress intended that the United States could bring criminal cases to the Supreme Court from the Circuit Court of Appeals. The Supreme Court, without discussing that question, passed on the merits of the case, observing that because the 'decision' was of 'grave importance to the administration of the revenue laws' certiorari would be granted. See also United States v. Gulf Ref. Co., 268 U.S. 542, 45 S.Ct. 597, 69 L.Ed. 1082 (1925).

The statute relating to the jurisdiction of the United States Supreme Court, with respect to the judgments of the Courts of Appeal, provides that:

'Cases in the courts of appeal may be reviewed by the Supreme Court by the following methods:

'(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;

'* * *.'

28 U.S.C.A., § 1254 at 49 (1966). Thus, the question seems settled in favor of the federal government's right to seek certiorari by the language of the present statute. The New Mexico statute relating to the Supreme Court's appellate jurisdiction to review by certiorari decisions of the Court of Appeals is very similar. See § 16--7--14, supra.

There is no reason to believe that the legislature, in passing § 16--7--14, supra, and in its subsequent amendment, intended anything other than to do that which the explicit terms of the statute provide: '* * * review by writ of certiorari to the court of appeals any civil or criminal matter * * *' meeting the requirements of § 16--7--14, supra. Furthermore, there is no reason to assume that the legislature, in limiting the State's right to appeal in a criminal case, intended a like limitation in the granting of a writ of certiorari. On the contrary, § 16--7--14, supra, indicates that these remedies are to be considered separately. Observing that any limitation on the right of the State to apply for a writ of certiorari must arise from some statutory limitation, the Supreme Court of Florida, in State v. Harris, 136 So.2d 633 (Fla.1962), rejected the contention that a statute limiting the right of the State to appeal in criminal cases...

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