Wellborn v. Naranjo

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

7 CLINT WELLBORN, District Attorney 8 for the Seventh Judicial District,

9 Petitioner-Appellee,

10 v. NO. 30,689

12 Magistrate Judge for Socorro County,

13 Respondent,

15 TORRES, NO. M-52-FR-2010-00130 and 16 NO. M-52-FR-2010-00054,

17 Real Party in Interest/Defendant-Appellant.

19 Kevin Sweazea, District Judge

20 Gary K. King, Attorney General 21 Santa Fe, NM

22 for Appellee

23 Patrick J. Martinez 24 Albuquerque, NM 1 for Appellant

3 CASTILLO, Judge.

4 Defendant appeals from the district court’s order granting District Attorney’s

5 (the State) petition for writ of prohibition or superintending control. [RP 20] Our

6 notice proposed to dismiss for lack of a final order. Defendant filed a timely

7 memorandum in opposition. Unpersuaded by Defendant’s arguments, we dismiss.

8 The order from which Defendant appeals quashes the magistrate court’s orders

9 disqualifying the Seventh Judicial District Attorney’s Office (DA’s office) from

10 prosecuting Defendant in two separate cases. See M-52-FR-2010-00130 and M-52-

11 FR-2010-00054. [RP 20] The district court’s order also remands both matters to the

12 magistrate court for further proceedings. [RP 21] Because further matters remain to

13 be adjudicated, we dismiss for lack of a final order. See generally State v. Montoya,

14 2005-NMCA-005, ¶¶ 4-5, 136 N.M. 674, 104 P.3d 540 (discussing that when the

15 district court enters an order of remand to the magistrate court that requires further

16 substantive determinations, the order is not final for purposes of appeal); Bd. of

17 Trustees of Vill. of Los Ranchos de Albuquerque v. Sanchez, 2004-NMCA-128, ¶¶ 1,

18 14, 136 N.M. 528, 101 P.3d 339 (holding that a peremptory writ of mandamus is not

2 1 a final order for purposes of appeal when an issue of damages in connection with the

2 activity covered by the writ has not been resolved).

3 Moreover, as noted, in both cases the district court has remanded for

4 preliminary hearings. It is entirely possible that Defendant may not be bound over to

5 the district court or, if he is, Defendant may still be acquitted in the district court. In

6 either event, Defendant’s issues would be rendered moot. See State v. Wyrostek, 117

7 N.M. 514, 523, 873 P.2d 260, 269 (1994) (recognizing that this Court will not issue

8 advisory opinions).

9 While Defendant would prefer to be able to challenge the district court’s ruling

10 before being subjected to a preliminary hearing and the possibility of being bound

11 over to district court [MIO 2], the lack of finality and possibility for mootness

12 preclude us from addressing the merits. Because Defendant’s arguments may be

13 considered in a direct appeal in the event he is ultimately convicted, we decline to

14 address them now. See generally State v. Armijo, 118 N.M. 802, 806, 887 P.2d 1269,

15 1273 (Ct. App. 1994) (recognizing that a defendant may raise a disqualification issue

16 on direct appeal following conviction, whereas the state may appeal the

17 disqualification of a prosecutor pursuant to the collateral order doctrine due to double

18 jeopardy implications). Similarly, we acknowledge Defendant’s argument that the

19 district court’s order was procedurally defective because it was entered before he was

3 1 given the opportunity to file an answer to the State’s petition for writ of prohibition

2 or superintending control. [MIO 2] This too, however, is a matter related to the

3 underlying merits of Defendant’s appeal that we are precluded from addressing until

4 finality requirements have been met. See, e.g., Kelly Inn No. 102, Inc. v. Kapnison,

5 113 N.M. 231, 238, 824 P.2d 1033, 1040 (1992) (providing that a judgment is not

6 final if a question remaining to be decided thereafter could alter, revise, or moot the

7 decisions embodied therein), limited on other grounds by Trujillo v. Hilton of Santa

8 Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065 (1993).

9 Based on the foregoing discussion, we dismiss for lack of a final order.

11 ___________________________________ 12 CELIA FOY CASTILLO, Judge

13 WE CONCUR:

14 __________________________________ 15 JAMES J. WECHSLER, Judge

4 1 __________________________________ 2 LINDA M. VANZI, Judge