State v. Griego

2004 NMCA 107, 96 P.3d 1192, 136 N.M. 272
CourtNew Mexico Court of Appeals
DecidedJune 30, 2004
Docket23,701, 23,706, 23,612
StatusPublished
Cited by24 cases

This text of 2004 NMCA 107 (State v. Griego) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Griego, 2004 NMCA 107, 96 P.3d 1192, 136 N.M. 272 (N.M. Ct. App. 2004).

Opinion

OPINION

KENNEDY, J.

{1} These cases concern whether the State may appeal non-final orders from the district court. In Defendant Griego’s ease, the State asks this Court to accept its appeal of the district court’s order denying its motion in limine seeking to restrict impeachment of the victim based on (among other things) his admissions that as a paid police informant, he had falsely stated and exaggerated facts in cases which he worked. In Defendant Coffey’s case, the State asks us to review an order allowing Defendant to withdraw his plea. We hold that neither order constitutes a final order from which the State may appeal, and therefore dismiss these appeals owing to our lack of jurisdiction to consider them. These two cases are consolidated for purposes of this opinion only. DISCUSSION

State v. Griego

{2} In Defendant Griego’s case, the State missed the deadline for an interlocutory appeal, conceding in its brief that an interlocutory appeal does not lie in this case. The State now asks us to accept this appeal as a direct appeal from a dismissal of a criminal complaint pursuant to NMSA 1978, § 39-3-3(B)(1) (1972). There was no dismissal or disposition by the district court.

{3} The order from which the State appeals denied the State’s motion in limine to prevent Defendant Griego from impeaching the State’s witness with the use of “extrinsic evidence” of conduct. Rule 11-608(B) NMRA 2004. The order was filed on November 20, 2002; the notice of appeal was filed on December 3, 2002. The district court stated at the time of its order that the prosecutor “can take his interlocutory appeal.” The district court’s granting permission for the State to act, however, does not give us jurisdiction to hear this appeal. Sanchez v. Bradbury & Stamm Constr., 109 N.M. 47, 48, 781 P.2d 319, 320 (Ct.App.1989) (holding that the “court of appeals only has jurisdiction to review matters as provided by law”); see N.M. Const, art. VI, § 29. Twelve days after the order was filed the State appealed it as an appeal from a final order. See § 39-3-3(B)(l). The State thus did not file an interlocutory appeal from the order pursuant to Section 39-3-3(B)(2), which states that an appeal may be taken within ten days, and only from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property.

{4} The State appealed the court’s order without the case being tried or dismissed. Immediately prior to trial, the State’s victim informed the State that Griego’s eodefendant had actually not been involved in the incident, contrary to his prior identification of him as a perpetrator of the alleged armed robbery against him. The State dismissed the case against the eodefendant. With the jury in the courthouse, just prior to trial, the defense informed the district court that it intended to impeach the victim’s testimony, using his recent problems with identification of the codefendant. Also, the victim’s prior statement that he had been a paid police informant who had made false reports to the police and exaggerated the severity of crimes in which he was informing would be used to impeach his testimony. These statements were made when defense counsel interviewed victim in jail, where victim was incarcerated for other matters. Additionally, the defense intended to impeach the victim with evidence that he had committed other crimes; all of which the defense considered to be legitimate fodder for impeachment under Rule 11-608. The State represented to the district court that if questioned about his activities as an informant, the victim would refuse to testify or commit perjury. It moved for the district court to prohibit the defense from using the victim’s status as a paid informant and his conduct while he was an informant to impeach his testimony. The district court denied the motion, and continued the trial for the State to take an interlocutory appeal, which it did not take.

Interlocutory Appeal in Defendant Griego’s Case

{5} We are allowed by statute to hear interlocutory appeals from non-final orders. See State v. Ahasteen, 1998-NMCA-158, ¶ 10, 126 N.M. 238, 968 P.2d 328. However, in order for this Court to hear the State’s interlocutory appeal, the requirements of Section 39-3-3(B)(2) must be met. The State concedes that they were not.

{6} First, the State did not appeal within the ten day period allowed by Section 39-3-3(B)(2). Second, the subject matter allowed under Section 39-3-3(B)(2) for such an appeal does not include a denial of a motion that had nothing to do with exclusion or suppression of evidence. Therefore, the type of order on the evidentiary matter at issue in this ease is not considered a final order from which the State may take a direct appeal. See Sims v. Sims, 1996-NMSC-078, ¶ 59,122 N.M. 618, 930 P.2d 153 (stating that “[a]n interlocutory decision is any decision made by the court prior to the final judgment”). The State concedes in its brief that these defects are “fatal to any theory of interlocutory appeal.” Because the State failed to comply with the requirements of Section 39-3-3(B)(2), we lack subject matter jurisdiction and therefore do not accept this as an interlocutory appeal.

The District Court’s Order in Griego’s Case is not a Final Order

{7} Without specific authorization for an interlocutory appeal, the right to appeal is generally limited to final judgments and orders. See High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 33, 888 P.2d 475, 479 (Ct.App.1994).

{8} Conceding its failure to establish entitlement to an interlocutory appeal under Section 39-3-3(B)(2), the State urges this Court to hear this appeal under Section 39-3-3(B)(l), which allows the State to appeal “within thirty days from a decision, judgment or order dismissing a complaint, indictment or information as to any one or more counts[.]” However, there must be a final order to appeal under Section 39-3-3(B)(1). “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.” Ahasteen, 1998-NMCA-158, ¶ 10, 126 N.M. 238, 968 P.2d 328. Section 39-3-3(B)(l) requires that the order dismiss the indictment or information. However, our Supreme Court has noted that there are exceptions to this general rule. Ahasteen, 1998-NMCA-158, ¶ 10, 126 N.M. 238, 968 P.2d 328 (noting that “the term finality is to be given a practical, rather than a technical construction”) (internal quotation marks and citation omitted). In this case, the order was not a final order dismissing the case. In fact, the only mention of dismissal in this case came in the prosecutor’s comment to the court of how the State intended to handle the victim’s impending perjury: “The State would have no other option at that point, but in all likelihood to dismiss since I can’t support perjury.” This “likelihood” did not' come to pass.

{9} Under limited circumstances, this Court will review an otherwise non-final order pursuant to the doctrine of practical finality. Id., ¶ 12.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 107, 96 P.3d 1192, 136 N.M. 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-griego-nmctapp-2004.