{
  "id": 1584597,
  "name": "STATE of New Mexico, Plaintiff-Appellant, v. Mike GIRAUDO, Joe Dominguez, Defendants-Appellees",
  "name_abbreviation": "State v. Giraudo",
  "decision_date": "1983-03-31",
  "docket_number": "Nos. 6006, 6021",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "WOOD and BIVINS, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellant, v. Mike GIRAUDO, Joe Dominguez, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nNEAL, Judge.\nThis consolidated appeal by the State concerns its right to appeal adverse rulings by the Metropolitan Court, N.M.R. Metro. P. 71(b), N.M.S.A.1978 (1981 Repl.Pamph.).\nMike Giraudo was charged in Metropolitan Court with various misdemeanor violations. His motion to suppress evidence was granted by the Metropolitan Court. Joe Dominguez was charged in Metropolitan Court with aggravated battery, a misdemeanor. The Metropolitan Court dismissed the charge because the State failed to prosecute within six months of filing the original complaint.\nThe district court ruled that neither the ruling suppressing evidence (Giraudo) nor the dismissal for failure to timely prosecute (Dominguez) was appealable by the State. We agree that the ruling suppressing evidence is not appealable and affirm Giraudo (No. 6006). We do not agree that the State cannot appeal the dismissal for failure to prosecute, and reverse Dominguez (No. 6021).\nRule 71(b), supra, states:\nRight of appeal by prosecution. The municipality, county or state may appeal to the district court of the county within which the metropolitan court is located within fifteen days after entry of the judgment of the metropolitan court dismissing the complaint on the basis that an ordinance, statute or section thereof is invalid or unconstitutional, or that the complaint or a part thereof is not otherwise legally sufficient. Notwithstanding any other provision of this rule, no docket fee or other cost shall be imposed upon a municipality, county or the state in any such appeal. (Emphasis added.)\nUnder this rule only a dismissal based on the invalidity or unconstitutionality of an ordinance, statute, or section thereof or a dismissal based on insufficiency of the complaint may be appealed by the State to the district court. Neither the motion to suppress nor the dismissal for failure to timely prosecute falls within Rule 71(b). The right of the State to appeal, if any, must lie elsewhere.\nGenerally, the State cannot appeal proceedings from a judgment in favor of the defendant in a criminal case absent a constitutional provision or statute conferring that right. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). Article VI, \u00a7 27 of the New Mexico Constitution provides for appellate review of decisions rendered by inferior tribunals:\nAppeals shall be allowed in all cases from the final judgments and decisions of the probate courts and other inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law. (Emphasis added.)\nIn Giraudo the State attempted to appeal the Metropolitan Court\u2019s suppression of evidence. Suppression of evidence is not a final judgment or decision. See State v. Garcia, 91 N.M. 131, 571 P.2d 123 (Ct.App.1977). The constitutional provision grants the right to appeal only from final judgments. The State has no right to appeal the Metropolitan Court\u2019s suppression of evidence based on Metro. Rule 71(b), supra, or Article VI, \u00a7 27 of our Constitution.\nNor can the State base its right to appeal the suppression of evidence on N.M. Const. Art. VI, \u00a7 2, which states that \u201can aggrieved party shall have an absolute right to one appeal.\u201d Article VI, \u00a7 2 specifically deals with appeals from the district court.\nFinally, the State cannot base its right to appeal the suppression of evidence on \u00a7 34-8A-6(C), N.M.S.A.1978 (1981 Repl. Pamph.). While \u00a7 34-8A-6(C) states that \u201c[a]ny person aggrieved by any judgment rendered by the metropolitan court may appeal to the district court,\u201d the State is not a \u201cperson\u201d within the meaning of this statute.\nWhether the word \u201cperson\u201d includes a State or the United States depends on its legislative environment. Southern Union Gas Co. v. New Mexico Pub. Serv. Com\u2019n, 82 N.M. 405, 482 P.2d 913 (1971). The context of other provisions of the metropolitan court statute suggests that \u201cperson\u201d does not include the State. See \u00a7\u00a7 34r-8A-4(B) and 34-8A-5(G), N.M.S.A.1978 (1981 Repl. Pamph.). As stated in Southern Union Gas, supra: \u201cWhen the legislature has wanted to include sovereigns or other governmental bodies in its statutes, it has known how to do so.\u201d Given its ordinary meaning, \u201cperson\u201d does not include the State.\nBecause no constitutional provision, statute or rule gives the State the right to appeal the Metropolitan Court\u2019s suppression of evidence, the district court\u2019s order denying the State\u2019s appeal in Giraudo (No. 6006) is affirmed.\nDominguez (No. 6021) presents a different situation. Because no further proceedings in Metropolitan Court are contemplated, the dismissal for failure to timely prosecute is a final judgment. See Texas Pacific Oil Company v. A.D. Jones Estate, Inc., 78 N.M. 348, 431 P.2d 490 (1967).\nRule 71(b), supra, however, promulgated by the Supreme Court, is narrower than Art. VI, \u00a7 27, supra. The constitutional provision requires only a final judgment. Rule 71(b) requires a dismissal based on the unconstitutionality of a statute, or on the insufficiency of a complaint. However, in light of N.M.R. Metro.P. 1(b), N.M. S.A.1978 (1981 Repl.Pamph.) the constitutional provision, rather than the narrower Rule 71(b), supra, controls the State\u2019s right to appeal. Metro. Rule 1(b) provides:\nThese [Metropolitan Court] rules shall be liberally construed to secure the just, speedy and inexpensive determination of every metropolitan court action. They shall not be construed to extend or limit the jurisdiction of any court, or to abridge, enlarge or modify the substan tive rights of any litigant. (Emphasis added.)\nThe right to appeal is a substantive right. State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). Were we to apply Metro. Rule 71(b), instead of Article VI, \u00a7 27 of our constitution, we would be abridging the substantive right of the State to appeal. Consistent with Metro. Rule 1(b), supra, we apply the constitutional provision, which requires only a final judgment. Since the order of dismissal is a final judgment the State may appeal it to the district court. The district court\u2019s order dismissing the State\u2019s appeal in Dominguez (No. 6021) is reversed.\nIT IS SO ORDERED.\nWOOD and BIVINS, JJ., concur.",
        "type": "majority",
        "author": "NEAL, Judge."
      }
    ],
    "attorneys": [
      "Steven Schiff, Dist. Atty., Harry Zimmerman, Asst. Dist. Atty., Albuquerque, for plaintiff-appellant.",
      "Janet Clow, Public Defender, Lynne Corr, Asst. Public Defender, Public Defender Dept., Santa Fe, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "661 P.2d 1333\nSTATE of New Mexico, Plaintiff-Appellant, v. Mike GIRAUDO, Joe Dominguez, Defendants-Appellees.\nNos. 6006, 6021.\nCourt of Appeals of New Mexico.\nMarch 31, 1983.\nSteven Schiff, Dist. Atty., Harry Zimmerman, Asst. Dist. Atty., Albuquerque, for plaintiff-appellant.\nJanet Clow, Public Defender, Lynne Corr, Asst. Public Defender, Public Defender Dept., Santa Fe, for defendants-appellees."
  },
  "file_name": "0634-01",
  "first_page_order": 666,
  "last_page_order": 669
}