State v. Pacheco

OPINION

ALARID, Judge.

Defendant appeals the trial court order disqualifying his counsel. We hold that this order is not a final, appealable order, and dismiss the appeal.

Defendant was one of a number of defendants who were charged with false voting in November 1990. Eleven of these defendants were represented by attorney Don Klein. When a hearing was called in November 1991, neither counsel nor all but one of his clients was present. The district attorney argued to the court that defense counsel should be disqualified because he was causing delays in the cases. Counsel eventually arrived, eight minutes after the hearing commenced, and was asked for an explanation. Counsel argued only that he had difficulty in calendaring these matters. The trial court disqualified counsel from representing all the defendants in these cases. The court found that the delay in the cases was the fault of defendants through counsel. Defendant appealed the order disqualifying his counsel.

Every aggrieved party has the right to one appeal; however, appellate jurisdiction shall be exercised as provided by law. N.M. Const. art. VI, §§ 2, 29 (Repl.Pamp.1992). The phrase “provided by law” means “ ‘provided by statutes.’ ” State v. Watson, 82 N.M. 769, 772, 487 P.2d 197, 200 (Ct.App.1971). A criminal defendant has the right of appeal “from the entry of any final judgment.” NMSA 1978, § 39-3-3(A)(l) (Repl.Pamp.1991). “An order is final if all issues of law and fact necessary to be determined have been determined, and the case has been completely disposed of to the extent that the court has power to dispose of it.” State v. Webb, 111 N.M. 78, 79, 801 P.2d 660, 661 (Ct.App.), cert, quashed, 111 N.M. 164, 803 P.2d 253 (1990). Contrary to Defendant’s assertion, finality is an important prerequisite to the right to appeal in New Mexico. There are important policy considerations underlying the finality rule, including avoiding piecemeal appeals and facilitating speedy and orderly disposition of cases. Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 240, 824 P.2d 1033, 1042 (1992). This second consideration is particularly important in criminal cases. See Flanagan v. United States, 465 U.S. 259, 264-65, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984).

In determining whether a judgment is final, this Court must look to its substance and not its form. See Kelly Inn No. 102, 113 N.M. at 236, 824 P.2d at 1038. A key in determining finality is the effect the judgment has upon the rights of the parties. Id. We do not believe that the disqualification of counsel is a final order. Flanagan v. United States. It does nothing but order that counsel may no longer represent the client in a particular case. The disqualification does not conclude the rights of the parties. In fact, the matters between the parties continue.

The fact that disqualification of counsel implicates Defendant’s constitutional right to counsel does not make the order final and, thus, appealable. Defendant does not have an absolute constitutional right to counsel of his choice; he has the constitutional right to be effectively represented by counsel. State v. Maes, 100 N.M. 78, 82, 665 P.2d 1169, 1173 (Ct.App. 1983). Here, there is no indication that Defendant was denied his right to counsel. Therefore, we cannot say at this time that the disqualification had any effect on the rights of Defendant. We think a disqualification of counsel is no different than the denial of a motion to suppress evidence, which also may implicate a defendant’s constitutional rights. The denial of a motion to suppress evidence is not appealable. State v. Garcia, 91 N.M. 131, 571 P.2d 123 (Ct.App.1977). Likewise, the denial of a motion to dismiss on the grounds of double jeopardy is not appealable as a final order. State v. Mestas, 93 N.M. 765, 767, 605 P.2d 1164, 1166 (Ct.App.1980). More particularly, the United States Supreme Court has held that orders disqualifying counsel are not immediately appealable under the collateral-order exception to the final judgment rule. Flanagan, 465 U.S. at 270, 104 S.Ct. at 1057.

The order disqualifying counsel is not a final, appealable order. Therefore, this Court has no jurisdiction to hear the appeal and the appeal is dismissed.

IT IS SO ORDERED.

APODACA, J., concurs. DONNELLY, J., specially concurring.