State v. Lohberger

• Decision Date: 28 May 2008
• Docket Number: No. 30,523.,30,523.
• Citation: State v. Lohberger, 187 P.3d 162, 2008 NMSC 33, 144 N.M. 297 (N.M. 2008)
• Parties: STATE of New Mexico, Plaintiff-Petitioner and Cross-Respondent, v. Peter LOHBERGER, Defendant-Respondent and Cross-Petitioner.
• Court: New Mexico Supreme Court

187 P.3d 162

2008 NMSC 033

STATE of New Mexico, Plaintiff-Petitioner and Cross-Respondent, v.Peter LOHBERGER, Defendant-Respondent and Cross-Petitioner.

No. 30,523.

Supreme Court of New Mexico.

May 28, 2008.

Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Petitioner and Cross-Respondent.

The Chacon Law Firm, David M. Chacon, II, Albuquerque, NM, Henry A. Alaniz, Albuquerque, NM, for Respondent and Cross-Petitioner.

OPINION

DANIELS, Justice.

{1} Over the past three years during the rocky history of this case, counsel for the parties and ten judges on four different courts have struggled in good faith with a threshold procedural issue: whether the metropolitan court effectively entered a final order of dismissal that started the clock running for the State to file a timely notice of appeal to the district court.

{2}The State requested the entry of a signed order of dismissal by the metropolitan court judge in order to start its appeal process.Defense counsel argued that the judge's unsigned but handwritten abbreviations on a chronological case history notes form had been a final order and that the State had not timely appealed from the making of those informal notes.

{3} The metropolitan court judge ultimately concluded that a clerk's computer-printed routing slip, and not the notes, constituted a final order for most purposes and that a party wishing to appeal had to make a specific and timely request for an appealable final order to be entered.

{4} The district judge disagreed with and reversed the metropolitan court, holding that neither the case notes nor the routing slip constituted an appealable final order of dismissal and that the State therefore had not forfeited its right to appeal by insisting on such an order.

{5}The Court of Appeals disagreed with and reversed the district court, holding that one or more of the judge's file notations, the routing slip, or a Motor Vehicle Division("MVD") abstract of record reporting form in the court file constituted the functional equivalents of a final judgment and that the State therefore had forfeited its right to appeal by not filing its notice of appeal within 15 days from one of those events.

{6}We disagree with and reverse the Court of Appeals.We hope to put to rest the procedural uncertainty that has unduly consumed the time and attention of all concerned and that has prevented the resolution of the more substantive issues in the case.In doing so, we reaffirm the long-standing requirement in New Mexico law that no appeal will lie from anything other than an actual written order or judgment signed by a judge and filed with the clerk of the court.

I.PROCEDURAL HISTORY

{7} On October 18, 2004, DefendantPeter Lohberger was charged by criminal complaint in the Bernalillo County Metropolitan Court with the misdemeanor offenses of first-offense driving while under the influence and failure to maintain a traffic lane.After the State filed a notice of intent to call as prosecution witnesses the two police officers who had allegedly witnessed the incident, Albuquerque Police Department Officers Brian Werley and Eric Martinez, defense counsel requested discovery interviews with both police officers, pursuant to Rule 7-504(C) NMRA.At a pre-trial conference, the metropolitan court judge directed defense counsel to alert the court with a notice of noncompliance if the State did not produce the witnesses for the requested pre-trial interviews.

{8} At the first trial setting, on February 11, 2005, defense counsel moved to dismiss the case on the ground that Officer Martinez had not been made available to the defense for interview.The judge denied the motion to dismiss, again ordered the State to produce Officer Martinez for interview, and rescheduled the trial.Defense counsel then made further unsuccessful attempts to interview Officer Martinez.

{9} On the second scheduled trial date, March 11, 2005, defense counsel moved for a dismissal on the ground that the State still had not produced Officer Martinez for a defense interview.The judge again declined to dismiss the case, again rescheduled the trial, and explicitly warned that the case would be dismissed if the State did not arrange the interview with Officer Martinez.The judge noted these comments in the chronological "Case History" section of the "CaseNotes" form in the court file.The State amended its witness list on March 18 by removing Officer Martinez as a State's witness.Ten days later, Officer Martinez failed again to appear for his scheduled defense interview.

{10} At the final trial setting, on April 4, defense counsel moved a third time to dismiss the case as a result of the failure of the State to secure the interview of Officer Martinez.Over the State's objection, the metropolitan court judge announced that he was granting the motion to dismiss for failure of the State to comply with the court's discovery order.The judge made the following handwritten notations in the "CaseNotes" form: "[Date]4-4-05[Actions] SRFT D mtn to dismiss.PO Martinez FTA for PTI.Granted.[Initials] VEV."A clerk appears to have generated for the court file a computerized document titled "Routing Slip," which contains, in relevant part, the following blocks of printed information:

Charge(s):

DWI FIRST OFFENSE (Dismissed)

DRIVING WITHIN TRAFFIC LANE (Dismissed)

On the 4^th day of April 2005, the court has ordered you to complete and/or to pay the following:

SENTENCE:                                     FEES AND COSTS
                                     P.O. Initials: LM
                  INSTRUCTIONS/BONDS
                  Release Cash/Surety Bond $2000
                  CONDITIONS/COMMENTS
                  I have read the above and I understand if I fail to comply with any part of
                  this order, a WARRANT for my arrest will be issued and an ADDITIONAL
                  $100.00 ADMINISTRATIVE FEE will be assessed
                  ____________________________               MKIE ________________________
                  Signature of Defendant Court Clerk              Court Clerk
                

{11} The "Routing Slip" form does not contain any signature or handwritten entries of a judicial officer or anyone else.The court file also contains a copy of DWI citation form MVD10811, which incorporates a separate section titled "Abstract of Record."That abstract is a reporting form for the information that is required by statute to be compiled in all traffic cases and forwarded to the MVD.NMSA 1978, § 66-8-135(1995).The abstract contains a recap of the case information, culminating in a dismissal on April 4, 2005, attests that it is a correct abstract of court actions, and has a rubber-stamped copy of the judge's signature.There is no indication that it was intended to be distributed to counsel of record or to any addressee other than the MVD.

{12}The State promptly filed a motion to reconsider the dismissal and subsequently filed a request for hearing on the motion to reconsider and for presentment of a proposed written order of dismissal.At a May 6 hearing, the court denied the motion to reconsider but did not address the State's requested order to dismiss.

{13} The metropolitan court judge wrote to counsel on June 7, stating that he had decided to "enter an appropriate order" of dismissal and requesting the parties to submit proposed forms of order.In defense counsel's June 13 cover letter to the court, enclosing a proposed form of dismissal order, defense counsel argued that a final order to dismiss had already been "filed" on April 4 when the judge made his handwritten notations in the "CaseNotes" form in the court file.Accordingly, the defense argued, the State had already forfeited its right to appeal by not filing its notice of appeal within 15 days of those April 4 notations.Defense counsel also argued that since the Rule 7-506 NMRA six-month limit for taking a case to trial would have expired on May 5, a month after the first announcement of the decision to dismiss, the case could no longer proceed for that reason as well.

{14} At the June 22 presentment hearing, defense counsel argued to the court that it was the initialed "notations in the case file" and specifically "not the routing slip that generates" from the "order you enter in open court" that constituted a filed final order and that no further order of the court was necessary.Counsel for the State argued that neither the file notes nor the computer-generated routing slip were the kind of operative final order from which an appeal could be taken.The metropolitan court judge disagreed in part with both parties.After first posing a question to the State as to whether the unsigned April 4 routing slip should be viewed as constituting the operative final order, the judge concluded the discussion by saying:

This is going to be the order of the court....I believe the State waived the request for any formal order when it didn't request it in a timely document, and I think that's the way this court needs to proceed because this court needs to be aware of when the State is intending to appeal or not ... so if the State is interested in appealing any issue of this court it needs to put us on notice that it wants an order.

Accordingly, the judge declined to sign either form of order prepared by counsel.

{15} On the following day, the State filed its notice of appeal to the district court appealing the metropolitan court's "oral orders" concerning the dismissal, the denial of the State's motion to reconsider the dismissal, and the decision not to sign and file with the clerk a written final order.Defendant then filed a motion in the district court to dismiss the appeal as untimely.The district judge determined that a proper final order still had not been filed in the metropolitan court, denied the defense motion to dismiss the appeal, and remanded to the metropolitan court for entry of a final order.

{16} After the metropolitan court judge entered a signed and file-stamped order of dismissal...