State v. McCarthy, 24482.

CourtCourt of Appeals of Idaho
Citation982 P.2d 954,133 Idaho 119
Docket NumberNo. 24482.,24482.
PartiesSTATE of Idaho, Plaintiff-Appellant, v. Joseph Patrick McCARTHY, Defendant-Respondent.
Decision Date21 June 1999

982 P.2d 954
133 Idaho 119

STATE of Idaho, Plaintiff-Appellant,
Joseph Patrick McCARTHY, Defendant-Respondent

No. 24482.

Court of Appeals of Idaho.

June 21, 1999.

Rehearing Denied July 27, 1999.

982 P.2d 955
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued

Arkoosh Law Offices, Gooding, for respondent. Eric J. Wildman argued.


After being charged with driving under the influence of alcohol, Joseph P. McCarthy sought suppression of incriminating evidence that was revealed in the course of a traffic stop. McCarthy claimed that the basis for the stop, that he had been speeding, was

982 P.2d 956
invalid because the arresting officer was mistaken as to the speed limit. The magistrate denied the suppression motion, and McCarthy took an interlocutory appeal to the district court, which reversed the magistrate's decision. The district court held that, in view of the officer's mistake about the speed limit, there was no reasonable suspicion justifying the traffic stop. The State now appeals from the district court's decision



At just before midnight on October 18, 1996, McCarthy was driving eastbound on Fourth Avenue, approaching the city limits of Gooding. As McCarthy passed through the intersection of Fourth Avenue and Texas Street, Officer Cowen of the Gooding Police Department was driving southward on Texas Street and observed McCarthy's vehicle go through the intersection. Cowen did not employ a radar device but visually estimated McCarthy's speed to be approximately forty-five miles per hour. Believing the speed limit at that point on Fourth Avenue to be twenty-five miles per hour, Cowen stopped McCarthy for speeding.

Officer Cowen was mistaken, however, about the speed limit. He incorrectly believed that the twenty-five mile per hour speed limit sign on Fourth Avenue was posted to the west of the Texas Street intersection when in fact it was located east of the intersection. Therefore, McCarthy had not yet reached the twenty-five mile per hour zone when he traversed the intersection.

After stopping McCarthy, Cowen noticed that McCarthy smelled of alcohol and had bloodshot eyes and flushed cheeks. When asked if he had been drinking, McCarthy stated that he had "a couple" before driving. The officer then conducted field sobriety tests, some of which McCarthy failed. Based upon the test results and his observations, Cowen arrested McCarthy for driving under the influence of alcohol (DUI), pursuant to I.C. § 18-8004.

McCarthy moved to suppress the evidence gathered as a result of the traffic stop on the ground that there was no reasonable suspicion justifying the stop. Following an evidentiary hearing on the motion, the magistrate found that Officer Cowen was mistaken regarding the location of the speed limit sign and therefore was mistaken as to the effective speed limit. The magistrate concluded, however, that the mistake was reasonable and that the stop therefore was not unlawful. Accordingly, the magistrate denied McCarthy's motion. McCarthy then filed a motion for permission to take an interlocutory appeal, and the magistrate granted the motion. On hearing the appeal, the district court held that the stop was unjustified because McCarthy was not violating the speed limit when observed by Officer Cowen. The district court therefore reversed the magistrate's order on the suppression motion.

The State appeals from the district court's decision and raises two issues. The State asserts, first, that the district court lacked jurisdiction to hear the permissive appeal from the magistrate and, second, that the magistrate correctly determined that the traffic stop was reasonable even though the officer was mistaken about the speed limit.1



A. Subject Matter Jurisdiction of the District Court

We consider first the State's argument that the district court was without jurisdiction because McCarthy did not perfect his permissive appeal to that court in compliance with applicable rules. The State points out that although McCarthy sought and obtained permission from the magistrate to take an

982 P.2d 957
interlocutory appeal as dictated by Idaho Criminal Rule 54.1(i) and Idaho Appellate Rule 12, he did not also obtain an order from the district court accepting the appeal, as required by the same rules. The State suggests that, absent compliance with these rules, the district court lacked subject matter jurisdiction to review the magistrate's decision on the suppression motion

Although the prosecutor did not raise this objection before the district court, we consider the issue because a lack of subject matter jurisdiction may be raised at any time in the course of judicial proceedings and may not be waived by the parties. Idaho State Ins. Fund v. Turner, 130 Idaho 190, 191, 938 P.2d 1228, 1229 (1997); State v. Heyrend, 129 Idaho 568, 571, 929 P.2d 744, 747 (Ct.App.1996). Issues of subject matter jurisdiction present questions of law over which appellate courts exercise free review. State v. Barros, 131 Idaho 379, 380, 957 P.2d 1095, 1096 (1998); State v. Doyle, 121 Idaho 911, 913, 828 P.2d 1316, 1318 (1992).

An order denying a suppression motion is an interlocutory order, from which no appeal may be taken as a matter of right. I.C.R. 54.1; I.A.R. 11(c). Generally, an interlocutory order of a magistrate may be appealed only "when processed in the manner provided by Rule 12 of the Idaho Appellate Rules and accepted by the district court." I.C.R. 54.1(i).2 Appellate Rule 123 specifies that a party seeking to pursue a permissive appeal from an interlocutory order must obtain permission from both the court from which the appeal is taken and the appellate court. I.A.R. 12(b), (c). Here, McCarthy complied with Rule 12(b) by obtaining an order from

982 P.2d 958
the magistrate authorizing the appeal, but he did not file a further motion with the district court for acceptance of the appeal, and therefore did not satisfy subsection (c) of the rule.

According to the State, this is a fatal flaw in the appellate process depriving the district court of jurisdiction and making its appellate decision void. The State relies upon Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 433, 546 P.2d 382, 388 (1976), for the proposition that compliance with all procedures for perfecting an appeal is a jurisdictional requirement.

We conclude that the State is incorrect in its analysis. The consequence of noncompliance with appellate rules is specified by I.A.R. 21, which states:

[T]he failure to physically file a notice of appeal or notice of cross-appeal with the clerk of the district court ... within the time limits prescribed by the these rules, shall be jurisdictional and shall cause automatic dismissal of such appeal or petition, upon the motion of any party, or upon the initiative of the Supreme Court. Failure of a party to timely take any other step in the appellate process shall not be deemed jurisdictional, but may be grounds only for such action or sanction as the Supreme Court deems appropriate, which may include dismissal of the appeal.

(Emphasis added.) A motion for an appellate court's acceptance of an interlocutory appeal is not a notice of appeal, but qualifies as "any other step" in the appellate process, which I.A.R. 21 provides is not jurisdictional.

The Briggs decision, upon which the State relies, preceded adoption of I.A.R. 21 and is superseded by that rule. More pertinent are Idaho Supreme Court decisions issued since adoption of I.A.R. 21. These include Neal v. Harris, 100 Idaho 348, 597 P.2d 234 (1979), where an appeal was taken from a decision of the Idaho Department of Water Resources to the district court. The appellant did not timely file with the district court a certified copy of the water permit at issue or a cost bond as required by a statute and a court rule. The district court dismissed the appeal due to the appellant's noncompliance with these procedures. The Supreme Court, applying the terms of I.A.R. 21, reversed the district court's dismissal. The Court noted that apart from the timely filing of a notice of appeal, "[a]ll other steps in the appellate process are not jurisdictional, and failure to timely take these steps is only grounds for imposing sanctions where, because of delay and potential prejudice, the court deems them appropriate." Id. at 350, 597 P.2d at 236.

More recently, in North Pacific Ins. Co. v. Mai, 130 Idaho 251, 252, 939 P.2d 570, 571 (1997), and Kindred v. Amalgamated Sugar Co., 118 Idaho 147, 149, 795 P.2d 309, 311 (1990), the Supreme Court considered interlocutory appeals taken to that Court without the appellant having obtained permission as required by I.A.R. 12. In each case, the...

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