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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 CLINT WELLBORN, District Attorney
8 for the Seventh Judicial District,
9 Petitioner-Appellee,
10 v. NO. 30,689
11 THE HONORABLE JIM NARANJO,
12 Magistrate Judge for Socorro County,
13 Respondent,
14 IN THE MATTER OF STATE V. ROBERT
15 TORRES, NO. M-52-FR-2010-00130 and
16 NO. M-52-FR-2010-00054,
17 Real Party in Interest/Defendant-Appellant.
18 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
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
2 MEMORANDUM OPINION
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.
10 IT IS SO ORDERED.
11 ___________________________________
12 CELIA FOY CASTILLO, Judge
13 WE CONCUR:
14 __________________________________
15 JAMES J. WECHSLER, Judge
4
1 __________________________________
2 LINDA M. VANZI, Judge
5