IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-089
Filing Date: September 3, 2010
Docket No. 29,425
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
EUGENE BEGAY,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge
Gary K. King, Attorney General
Francine A. Chavez, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
CASTILLO, Judge.
{1} The district court reversed the magistrate court’s order revoking Defendant’s
probation and remanded the case to the magistrate court for a full hearing on the probation
revocation. Defendant appeals, and we reverse. The district court erred in failing to conduct
a de novo hearing on the revocation and in remanding for an additional hearing at the
magistrate court level on this issue. We remand for a de novo hearing by the district court
consistent with this opinion.
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I. BACKGROUND
A. Proceedings in Magistrate Court
{2} Defendant was convicted of DWI, third offense, and was sentenced to 364 days of
incarceration with 306 suspended, followed by a twenty-eight-day stay at a treatment
facility, and then 364 days of supervised probation including an unspecified aftercare
program. An aftercare contract was signed by Defendant and filed with the magistrate court
specifying that Defendant would receive outpatient treatment from the Salvation Army Adult
Rehabilitation Program (Salvation Army Program). After completing a large portion of the
Salvation Army Program, Defendant was terminated. On November 20, 2008, Don Teel, the
adult rehabilitation program residence manager for the Salvation Army Program, sent a letter
addressed “To Whom it May Concern” indicating that on November 19, 2008, Defendant
was terminated from the Salvation Army Program for non-compliance with the established
program policy. The letter alleged violations including “[d]isrespecting staff[,] giving false
statement implicating another beneficiary of misconduct[, and] giving false statement on
conduct report write[-]up.” On the face of the letter, there is what appears to be a
photocopied post-it note to “Ethan” from “Traci” indicating that Teel had died on December
27.
{3} Defendant’s probation was revoked in magistrate court on January 6, 2009, and he
was sentenced to 265 days in jail. Defendant appealed the probation revocation to district
court.
B. Proceedings in District Court
{4} At the initial hearing in district court held on February 17, 2009, Defendant argued
that the magistrate court revoked his probation without an evidentiary basis and that he was
denied a full hearing. The State did not have enough information to respond and requested
the probation violation paperwork from Defendant. The court also requested the paperwork
and requested that Defendant identify the issues on appeal.
{5} The next day, Defendant filed a motion to re-examine revocation of probation. He
argued that his probation should not have been revoked because he did not violate any of the
conditions of probation. He claimed that his attendance in the Salvation Army Program was
entirely voluntary and, as it was not ordered by the magistrate court, his premature
termination from the program did not violate a condition of probation. Defendant also
argued that there was insufficient evidence regarding his termination from the Salvation
Army Program to establish a violation of his probation to a reasonable certainty. He stated
his position that the only evidence introduced at the revocation hearing in magistrate court
was the hearsay evidence of unverified facts consisting of Teel’s letter. He argued that the
hearsay evidence was particularly unpersuasive because it consisted of only a conclusion of
misbehavior, not a “narrative of specific events.”
{6} The district court conducted a hearing on March 2, 2009. The State conceded that
the only evidence supporting termination was Teel’s letter, which was hearsay. Although the
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State and district court determined that there had not been a full hearing in magistrate court,
Defendant informed the court that he was not seeking a remand for another hearing because
there was no evidence for the State to present. He further asserted that a remand was
unwarranted because he was entitled to a new probation revocation hearing in district court
because this was a de novo appeal. The State disagreed because there had yet to be a full
hearing in magistrate court.
{7} The district court found that the propriety of the revocation was questionable because
there appeared to be no admissible evidence to support the magistrate court’s findings. The
district court also found that Defendant was not entitled to a de novo hearing on the
probation revocation so it issued an order remanding to the magistrate court for a new
hearing on the probation revocation. It orally indicated that the magistrate court should be
instructed not to take hearsay into account in redetermining whether Defendant violated his
probation, but there is nothing in the order so stating.
{8} In its order of remand and mandate, the district court included findings that: (1)
Defendant was not entitled to a de novo hearing on the revocation of probation because a
revocation hearing is not a trial; (2) the parties stipulated that revocation was based on Teel’s
letter of November 20, 2008, and that Teel had died prior to the hearing; (3) the parties’
stipulations call into question the propriety of the evidence used at the revocation hearing;
and (4) there appeared to be no appropriate evidence to support the revocation.
{9} Defendant appealed to this Court, and the parties were specifically instructed to brief
two questions: (1) when is an order on probation revocation subject to de novo review and
when is such an order subject to on-record review, and (2) which magistrate and/or district
court rules apply to appeals of probation revocation orders.
II. DISCUSSION
A. Finality
{10} The State contends that Defendant’s appeal is improper because the order remanding
to the magistrate court is not a final order for purposes of appeal. We disagree.
{11} “In general, the right to appeal is restricted to final judgments and decisions.” High
Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 33, 888 P.2d 475, 479 (Ct.
App. 1994) (citing NMSA 1978, § 39-3-2 (1966)), rev’d on other grounds by 1999-NMSC-
050, 126 N.M. 413, 970 P.2d 599. 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. See B.L. Goldberg &
Assocs. v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985). However, finality
“is to be given a practical, rather than a technical, construction.” Kelly Inn No. 102, Inc. v.
Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992), limited on other grounds by
Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065 (1993); see State v.
Apodaca, 1997-NMCA-051, ¶ 15, 123 N.M. 372, 940 P.2d 478 (recognizing that “the
constitutional right to appeal must be given a practical construction”).
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{12} The State notes that the district court’s order does not address sentencing, and the
State asserts that the district court remanded the case to the magistrate court so that
Defendant could be afforded a full hearing in accordance with Rule 6-802(C) NMRA and
NMSA 1978, Section 31-21-15(B) (1989). It then argues that the district court’s order is not
sufficiently final because Defendant is awaiting a new hearing consistent with the order of
remand, and the outcome of the State’s motion to revoke probation has yet to be determined.
We are unpersuaded that the district court’s order is not final.
{13} “Ordinarily, an order remanding a case for further proceedings in a lower court is not
considered ‘final’ for purposes of appeal.” State v. Ahasteen, 1998-NMCA-158, ¶ 11, 126
N.M. 238, 968 P.2d 328. The rationale is that, after remand, the appellant has another
opportunity to obtain review in the district court and then in this Court. See id. However,
this rationale does not apply in a case such as this one where dismissal of Defendant’s appeal
for lack of finality would in effect deny the appeal on its merits. Id. ¶ 12.
{14} Assuming that Defendant is correct and that he is entitled to a de novo hearing in
district court—an issue addressed in the following section of this opinion—then the order
remanding for a new hearing is in error, and Defendant should not be subject to another
revocation hearing at the magistrate court level. See generally id. ¶¶ 12-20 (holding that the
district court’s order refusing to exercise jurisdiction and remanding to the magistrate court
for trial was sufficiently final for purposes of appeal and then determining that the remand
was in error); cf. Collado v. N.M. Motor Vehicle Div., 2005-NMCA-056, ¶ 6, 137 N.M. 442,
112 P.3d 303 (recognizing an exception to the general rule that an order of remand is not
sufficiently final for purposes of appeal pursuant to the doctrine of practical finality “if the
party opposing remand would be unable to have the propriety of the remand heard at a later
date”); Apodaca, 1997-NMCA-051, ¶ 16 (holding that the defendant could appeal the district
court’s order granting a new trial because his “right not to be subjected to a second trial for
the same offense could not be remedied once the second trial has taken place”). Therefore,
because finality depends upon the very question at issue in this case, whether Defendant is
entitled to a de novo hearing in district court on the State’s motion to revoke his probation,
we apply the doctrine of practical finality in this case and proceed to the merits of
Defendant’s appeal. See Ahasteen, 1998-NMCA-158, ¶ 13 (applying the doctrine of
practical finality to allow an appeal from an order of remand).
B. Merits
{15} The question of whether Defendant is entitled to a de novo hearing in district court
on the State’s motion to revoke his probation requires us to interpret and apply Rule 6-
802(D) and, as such, presents a question of law that we review de novo. State v. Foster,
2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824 (“We review de novo questions of law
concerning the interpretation of Supreme Court rules and the district court’s application of
the law to the facts[.]”).
{16} Rule 6-802(D) provides:
The decision of the court to revoke probation may be appealed to the district
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court as otherwise provided in these rules. The only issue the district court
will address on appeal will be the propriety of the revocation of probation.
The district court shall not modify the sentence of the magistrate court.
The State acknowledges that multiple authorities provide that appeals from magistrate court
are subject to de novo review, except as otherwise provided by law. See, e.g., N.M. Const.
art. VI, § 27 (“Appeals shall be allowed in all cases from the final judgments and decisions
of . . . inferior courts to the district courts, and in all such appeals, trial shall be had de novo
unless otherwise provided by law.”); NMSA 1978, § 39-3-1 (1955) (“All appeals from
inferior tribunals to the district courts shall be tried anew in said courts on their merits, as
if no trial had been had below, except as otherwise provided by law.”); NMSA 1978, § 35-
13-2(A) (1996) (“Appeals from the magistrate courts shall be tried de novo in the district
court.”); Rule 6-703(J) NMRA (“Trials upon appeals from the magistrate court to the district
court shall be de novo.”). However, the State argues that this authority should be interpreted
as only applying to de novo trials as opposed to special proceedings such as a probation
revocation hearing which, the State contends, may only be reviewed for errors of law. We
reject this contention.
{17} First, there is nothing in the language of Rule 6-802(D) or any other rule or statute
specifically providing that the district court only reviews probation revocation orders for
errors of law. To the contrary, as previously stated, numerous rules and statutes provide that
appeals to district court are de novo unless some rule or provision of law specifically states
otherwise. We are not aware of any such contrary provision; there is no other standard of
review indicated in Rule 6-802(D), and there is no other rule supporting the State’s position
that the district court was correct in holding “a deferential hearing on the magistrate court’s
ruling.” See State v. Garcia, 2003-NMCA-045, ¶ 5, 133 N.M. 444, 63 P.3d 1164 (filed
2002) (observing that “[t]he only law of which we are aware indicates that magistrate court
appeals to district court are to be heard by trial de novo”).
{18} Likewise, we are not convinced that the inability of the district court to alter the
sentence or the limitation on its review to the propriety of the revocation impacts
Defendant’s right to a de novo hearing on the propriety of the revocation. See Rule 6-802(C)
(outlining the magistrate court’s probation and sentencing options once a probation violation
is established); Rule 6-802(D) (stating that when reviewing a probation revocation on
appeal, the district court may not modify the sentence of the magistrate court). To the
contrary, we interpret the limitation as merely reflecting that the district court’s review of
the propriety of a probation revocation does not warrant the additional exercise of its
discretion to determine the effect of that revocation on sentencing. It recognizes that, unless
the district court disagrees with the magistrate court’s revocation decision, the latter court’s
decision as to the effect of revocation on sentencing should be allowed to stand. See State
v. Gallegos, 2007-NMCA-112, ¶ 21, 142 N.M. 447, 166 P.3d 1101 (noting that a common
sense approach should be taken when “determining the jurisdiction of the district court to
entertain de novo appeals”).
{19} Although this case presents an issue of first impression in that it requires us to
interpret Rule 6-802(D), we are guided by previous cases establishing that when a court is
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not of record, de novo review is necessary. For example, although the State contends that
this Court’s opinion in Foster supports its position, we disagree. In Foster, we noted that
“[w]hether a lower court is of record determines whether a trial will be de novo.” Foster,
2003-NMCA-099, ¶ 9. We also observed that “[t]he magistrate court . . . is not a court of
record [and] [t]herefore, appeals from magistrate courts are de novo.” Id. (citations omitted).
{20} We further note that Foster did not concern a de novo trial. Instead, the defendant
was convicted in magistrate court, appealed to district court, and filed a pretrial motion
claiming that the trial in magistrate court had violated double jeopardy. Id. ¶ 4. The state
argued that the district court should not be allowed to consider the defendant’s claim of
double jeopardy because, given that trial was de novo, it was as if the magistrate court trial
never existed. Id. ¶ 10. This Court disagreed and held that a de novo appeal was an
appropriate avenue for the defendant to assert his double jeopardy claim. Id.
{21} In Foster, we recognized the broad appellate jurisdiction of district courts to conduct
trials de novo and, “when called upon, [to] hear pretrial motions in de novo appeals.” Id. ¶
11; see State v. Hicks, 105 N.M. 286, 287, 731 P.2d 982, 983 (Ct. App. 1986) (“[T]he right
of appeal [from courts not of record] is the right to a trial or hearing de novo in the district
court.” (emphasis added)). As in Foster, “[w]e see no justification for limiting the authority
of the district court to hear [the] motion in this case [and] hold that the district court has
jurisdiction as well as a constitutional and statutory obligation to consider [the] motion on
the merits.” 2003-NMCA-099, ¶ 11; see Hicks, 105 N.M. at 287, 731 P.2d at 983.
{22} A similar issue, albeit with the state taking a contrary position, was considered by
this Court in Hicks. In Hicks, the metropolitan court dismissed the complaint filed against
the defendant because the complaint was not filed in a timely manner, and the district court
affirmed the dismissal, finding that the metropolitan court did not abuse its discretion. 105
N.M. at 287, 731 P.2d at 983. On appeal, the state argued that the district court erred in
applying an “appellate standard of review” and that it should have made an independent
determination of whether dismissal was proper. Id. The defendant argued that the district
court proceeding was not a “trial” in the ordinary meaning of that word and, thus, a de novo
proceeding was not required. Id. This Court agreed with the state and found the defendant’s
argument was “not consistent with the meaning of the word ‘appeal’ in the context of
[Article] VI, Section 27.” Hicks, 105 N.M. at 287, 731 P.2d at 983.
{23} In Hicks, this Court held that, because criminal actions in metropolitan court were
not of record at that time, “the right of appeal in such actions is the right to a trial or hearing
de novo in the district court[, and] [i]n de novo proceedings, the district court is not in any
way bound by the proceedings in the lower court.” Id. (citation omitted). We held that the
district court was required to independently determine whether the requirements of the
metropolitan court were complied with and thus remanded the case to district court to make
such a determination. Id. Compare State v. Spillman, 2010-NMCA-019, ¶ 6, 147 N.M. 676,
227 P.3d 1058 (filed 2009) (holding that before a defendant could contest the validity of a
plea entered in metropolitan court by appealing to district court, he had to first move to set
aside his plea in metropolitan court because in an on-the-record appeal to district court, that
court is the equivalent of an appellate court), cert. denied, 2010-NMCERT-001, 147 N.M.
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673, 227 P.3d 1055, with Gallegos, 2007-NMCA-112, ¶¶ 3-8 (conducting an evidentiary
hearing in district court to determine the validity of the defendant’s plea entered in
magistrate court).
{24} In this case, because the probation revocation in magistrate court was not of record,
Defendant was entitled to a hearing de novo in the district court in which the court was in
no way “bound by the proceedings in the lower court.” Hicks, 105 N.M. at 287, 731 P.2d
at 983. After such a hearing, the district court should either reverse the order revoking
probation and remand for enforcement of that judgment or if de novo review indicates that
the probation revocation was proper, remand for enforcement of the sentence imposed by
the magistrate court. See Rule 6-703(P); Rule 6-802(D).
{25} While acknowledging that the magistrate court is not a court of record, the State
argues that a sufficient “record can be made by requiring the party filing an appeal in district
court to request that the magistrate court enter findings of fact and conclusions of law to be
incorporated in [its] judgment and sentence orders following probation revocation hearings.”
The propriety of the revocation proceeding could then be determined from the findings and
conclusions and, if not, remand would be the proper remedy. The State suggests that this
Court could “mandate as a matter of procedure that the magistrate courts make such findings
and conclusions as part of the record on appeal,” and probation revocation orders issued by
magistrate courts could be amended to reflect that on appeal defendants are not entitled to
de novo review.
{26} We construe these procedures and requirements suggested by the State as a request
for a change in the Rules of Criminal Procedure because there are no current magistrate or
district court rules mandating such procedures and requirements. See generally Rule 6-703
(setting forth the requirements for an appeal from magistrate court to district court).
Specifically, there is nothing in the current rules requiring the record on appeal to contain
findings and conclusions when a magistrate court revokes a probationer’s probation. See
Rule 6-703(F) (setting forth the contents of the record in an appeal from magistrate court).
Any development or change in this area should be directed to our Supreme Court, our state’s
rule-making authority. See Pub. Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 23, 129
N.M. 487, 10 P.3d 166 (discussing the law of privilege). Nor do we perceive any need to
adopt such procedures or to require the magistrate court to make findings and conclusions
because the availability of de novo review obviates the need for such new procedures,
findings, and conclusions. See Gallegos, 2007-NMCA-112, ¶ 3 (recognizing that because
the magistrate court is not a court of record, any “record” on appeal would only consist of
papers filed in that court).
{27} Finally, we note that the State is correct that a probation revocation hearing is not a
trial, that a defendant is not entitled to all of the rights afforded during a criminal
prosecution, and that the State’s burden of proof is different for a probation revocation
proceeding. See State v. Phillips, 2006-NMCA-001, ¶ 17, 138 N.M. 730, 126 P.3d 546 (filed
2005) (stating that the trial court’s finding of a probation violation must be based on verified
facts sufficient to establish the violation of probation to a “reasonable certainty” (internal
quotation marks omitted)); State v. Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct.
7
App. 1989) (recognizing that the state must introduce proof which would incline “a
reasonable and impartial mind to the belief that a defendant has violated the terms of
probation”). However, we fail to see how these differences negate the need for a de novo
hearing when the appeal is from a magistrate court proceeding that is not of record.
III. CONCLUSION
{28} Based upon our holding that the district court erroneously remanded to give the
magistrate court another opportunity to conduct a full hearing, we reverse and remand so that
the district court can conduct a de novo hearing on the revocation.
{29} IT IS SO ORDERED.
____________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
____________________________________
CYNTHIA A. FRY, Chief Judge
____________________________________
JONATHAN B. SUTIN, Judge
Topic Index for State v. Begay, Docket No. 29,425
AE APPEAL AND ERROR
AE-RA Record on Appeal
AE-TN Trial de Novo
CA CRIMINAL PROCEDURE
CA-FO Final Order
CA-PB Probation
CA-RV Revocation of Probation
EV EVIDENCE
EV-HR Hearsay Evidence
JD JURISDICTION
JD-AJ Appellate Jurisdiction
JD-CG Courts of Limited Jurisdiction, General
JD-DC District Court
JD-MC Magistrate Court
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