State v. Roybal

• Decision Date: 01 February 2006
• Docket Number: No. 24,897.,24,897.
• Citation: 2006 NMCA 043,132 P.3d 598
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Leroy ROYBAL, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 598

132 P.3d 598

2006 NMCA 043

STATE of New Mexico, Plaintiff-Appellant, v. Leroy ROYBAL, Defendant-Appellee.

No. 24,897.

Court of Appeals of New Mexico.

February 1, 2006.

Certiorari Denied, No. 29,684, March 30, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellant.

John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

FRY, Judge.

{1} The State appeals the dismissal of criminal charges against Defendant for lack of venue. Defendant was in Santa Fe County when a police officer clocked his car speeding and began pursuing him. Defendant pulled over and stopped just after crossing the county line into Rio Arriba County. There, he was arrested on an outstanding warrant. During an inventory search, the police discovered drugs and drug paraphernalia in his car. As a result, Defendant was charged in Santa Fe County with two counts of trafficking in a controlled substance. The trial court dismissed with prejudice the charges filed in Santa Fe County for improper venue, concluding that the charges should have been filed in Rio Arriba County where Defendant was stopped and the drugs were discovered. We hold that venue was proper in Santa Fe County because the crime of trafficking in a controlled substance by possession with intent to distribute is a continuing offense that was committed in both counties in which Defendant traveled while in possession of the drugs. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

DISCUSSION

I. The State's Notice of Appeal Was Timely Filed

{2} Initially, we determine whether the State filed a timely notice of appeal from the trial court's dismissal of the charges. The timely filing of a notice of appeal is a mandatory precondition to this Court's jurisdiction and must be addressed even if neither party raises the issue. Valley Bank of Commerce v. Hilburn, 2005-NMCA-004, ¶ 12, 136 N.M. 741, 105 P.3d 294. Upon assigning this case to the general calendar, we instructed the parties to brief the issue of whether the State's notice of appeal was timely filed. We conclude that the notice was timely filed.

{3} Our review of the record establishes the following facts. After the State rested its case at trial, Defendant moved for a directed verdict on the ground that the State failed to prove that venue in Santa Fe County was proper. After hearing argument from both parties, the trial court granted Defendant's motion, concluding that Defendant's speeding violation was insufficient to establish venue in Santa Fe County for purposes of the trafficking charges, and that venue rested in Rio Arriba County where Defendant was stopped and the drugs were found.

{4} On November 19, 2003, two days after the jury trial was terminated, the trial court entered an order dismissing with prejudice all counts against Defendant on the ground that "the State's evidence failed to support a[v]erdict[.]" The dismissal order, as worded, appeared to be an acquittal on the merits and thus did not accurately reflect the trial court's oral ruling that the charges be dismissed for lack of venue. See State v. Joe, 2003-NMCA-071, ¶ 16, 133 N.M. 741, 69 P.3d 251 (explaining that a directed verdict, based on the State's failure to produce sufficient evidence to carry its burden at trial, amounts to an acquittal); see also State v. Lopez, 84 N.M. 805, 808-09, 508 P.2d 1292, 1295-96 (1973) (explaining that venue is not jurisdictional, and therefore, the defendant's motion for a directed verdict based on the state's failure to prove all essential elements of a prima facie case was insufficient to preserve venue objection); State v. Wise, 90 N.M. 659, 662, 567 P.2d 970, 973 (Ct.App.1977) (discussing that venue need not be proved beyond a reasonable doubt because it is not an essential element of the crime, but a personal right or privilege). On appeal, both parties agree that a dismissal for lack of venue is not an adjudication on the merits, see Bracken v. Yates Petroleum Corp., 107 N.M. 463, 463, 760 P.2d 155, 155 (1988), disagreed with on other grounds by Team Bank v. Meridian Oil Inc., 118 N.M. 147, 151, 879 P.2d 779, 783 (1994), and is thus distinguishable from a directed verdict of acquittal. Cf. Joe, 2003-NMCA-071, ¶ 16, 133 N.M. 741, 69 P.3d 251.

{5} On November 21, 2003, the State filed a motion to set aside the order of dismissal, arguing that (1) the order had been entered without first being submitted to the State for approval as required by Rule 5-121(D) NMRA; (2) the order, as entered, did not reflect the ruling of the trial court and was contrary to the applicable law; and (3) the order was signed by a judge other than the presiding judge. Along with the motion to set aside, the State filed a request for a presentment hearing.

{6} On November 26, 2003, the State also filed a motion to reconsider the trial court's ruling on venue. Defendant filed a response to both motions on December 11, 2003. Because no presentment hearing had yet been set by the trial court, the State filed a second request for hearing on February 5, 2004. The trial court finally heard both motions on March 23, 2004, approximately four months after the State's post-dismissal motions were filed. At the conclusion of the hearing, the trial court denied the State's motions but instructed the parties to prepare an amended order clarifying that the charges were dismissed with prejudice based upon the State's failure to prove that venue was proper in Santa Fe County. The amended order of dismissal, accurately setting forth the trial court's ruling on venue, was filed on March 25, 2004. The State's notice of appeal was filed on April 20, 2004, within thirty days of the amended order of dismissal but more than five months after the original dismissal order. Rule 12-201(A)(2) NMRA.

{7} In determining whether the State's appeal was timely filed, we consider the following questions: (A) whether the time for appeal began to run from the original dismissal order and thus the State was required to appeal from that order; and (B) whether the State's motion to set aside and motion to reconsider tolled the time for appeal, thus allowing the trial court to have jurisdiction to enter the amended order of dismissal. For the reasons that follow, we conclude that (A) the time for appeal did not begin to run from the original dismissal order because that order was unappealable on its face and did not accurately reflect the trial court's ruling of improper venue, and (B) the State's post-dismissal motions suspended the finality of the original dismissal order and delayed the time for appeal until the trial court disposed of the State's motions. Therefore, the trial court had jurisdiction to enter the amended order of dismissal.

A. The Time for Appeal Did Not Run From the Original Dismissal

{8} As discussed above, on November 19, 2003, the trial court entered an order upon Defendant's motion for directed verdict, dismissing with prejudice the trafficking counts on the ground that the State's evidence failed to support a verdict. On its face, the dismissal appeared to be an acquittal on the merits and thus was not appealable by the State. See Joe, 2003-NMCA-071, ¶ 16, 133 N.M. 741, 69 P.3d 251. When a defendant is acquitted of a charge, the double jeopardy clause prohibits a second prosecution on the same charge and thus bars appellate review of the final judgment. NMSA 1978, § 39-3-3(C) (1972) ("No appeal shall be taken by the state when the double jeopardy clause of the United States constitution or the constitution of the state of New Mexico prohibits further prosecution."); State v. Archuleta, 112 N.M. 55, 58, 811 P.2d 88, 91 (Ct.App.1991) (explaining that the double jeopardy clause does not permit an appeal of a judgment of acquittal, "whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict" (internal quotation marks and citation omitted)). Consequently, on its terms, the first order of dismissal did not appear to be appealable by the State.

{9} As the transcript of the trial reveals, however, the trial court did not intend to acquit Defendant of the charges but rather sought to dismiss the charges based upon a determination that the State failed to prove that venue was proper in Santa Fe County. Compare Joe, 2003-NMCA-071, ¶ 16, 133 N.M. 741, 69 P.3d 251 (stating that a trial court's determination that the state did not produce sufficient evidence to carry its burden constitutes a judgment of acquittal), with Wise, 90 N.M. at 662, 567 P.2d at 973 (explaining that venue is not an essential element of a crime but "a personal right or privilege of the accused which may be waived"). In dismissing the action for improper venue, the trial court fully anticipated that the State would appeal the ruling on venue and encouraged such an appeal, believing the venue question to be one of first impression in New Mexico. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874, 881 (1985) (indicating that the trial court's verbal comments can be used to clarify ruling). However, the dismissal, as entered by the trial court, not only precluded an appeal by the State but incorrectly stated the legal basis for dismissal.

{10} The State argues that it should not have been required to file a notice of appeal until it obtained an order that correctly set forth the trial court's ruling and was final and appealable on its terms. We agree. Because the first dismissal order failed to accurately state the basis for dismissal, and the State sought to appeal the trial court's ruling on venue, the State had both an interest and a duty to obtain an order that correctly set forth the substance of the trial court's ruling before appealing. State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829...