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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,391 9 JESSE ALEX, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Karen L. Townsend, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Eleanor Brogan, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 222 Defendant appeals the district court amended order which remands 1 Defendant’s case to the magistrate court. We issued a notice of proposed summary 2 disposition, proposing to reverse on the grounds that magistrate court judgment 3 was an acquittal and that the Double Jeopardy Clause bars review in district court. 4 The State filed a response to our notice, and persuaded this Court that jeopardy had 5 not yet attached, and therefore, the State’s appeal to the district court is not barred 6 by the prohibition against double jeopardy. Our second notice of proposed 7 summary disposition proposed to dismiss for lack of a final, appealable order. 8 Defendant has responded to our second notice with a memorandum in opposition. 9 Defendant has not persuaded us that he may immediately appeal the district court’s 10 remand order. We dismiss. 11 In response to our second notice, Defe ndant continues to argue that the 12 magistrate court judgment and sentence ac quitted Defendant of criminal trespass 13 and that the State could not appeal that acquittal to district court. [MIO 6-8] 14 Defendant argues that jeopardy attached wh en the magistrate court heard argument 15 from the State at the pretrial motions h earing indicating that it had insufficient 16 evidence to proceed to trial. [MIO 7] We cannot agree with Defendant because, as 17 our second notice pointed out, the magistrate court dismissal of the case occurred 18 before trial, and before the jury was empaneled or sworn. See State v. Davis , 1998- 193 NMCA-148, ¶¶ 9-16, 126 N.M. 297, 968 P.2d 808 (holding that the defendant was 1 not twice placed in jeopardy when the Stat e appealed to the district court the 2 metropolitan court pre-trial dismissal of the charges against the defendant). 3 Because a defendant must be placed before th e trier of fact that determines guilt or 4 innocence for jeopardy to attach, see id. ¶¶ 12-14, our second notice proposed to 5 hold that Defendant was not placed in je opardy twice when there was a pretrial 6 dismissal and the State appealed to the di strict court. Defendant’s response does 7 not explain why his case differs from Davis . Therefore, he has not persuaded this 8 Court that the State’s appeal to the distri ct court is barred by the prohibition against 9 double jeopardy. 10 In magistrate court, the State failed to make several of its witnesses available 11 for interview, despite repeated request s from Defendant and an order of the 12 magistrate court. [DS 2] The trial setting was pushed back twice, during which 13 time the State made no effort to rectify the discovery violations. [DS 3] Close to 14 the sixth month since the filing of the criminal complaint and two days before the 15 trial setting, the magistrate court excl uded the testimony of those witnesses the 16 State had failed to make available. [DS 2-3] 17 At the hearing on Defendant’s suppression motion, on the same day as the 18 final trial setting, the State informed the magistrate court that it was unable to 194 present sufficient evidence to secure a conviction based on the testimony of the 1 remaining witness in the case. [Id.] This occurred only a few days before the 2 expiration of the six-month rule period. [Id.] The State did not seek another 3 continuance, file a nolle prosequi and refilethe charge in district court or express 4 an intention to do so, nor did it ever seekto appeal the magistrate court’s order 5 excluding the witnesses’ testimony. [Id.] Rather than hold the suppression hearing 6 or the trial on the charge, the magistrate court dismissed the case based on the 7 State’s stipulation that it had insufficient evidence to convict and entered a form 8 judgment and sentence that purported adjudicate Defendant not guilty of criminal 9 trespass. [DS 3; RP 8] 10 The State appealed the judgment to the di strict court. [RP 1] Contrary to 11 Defendant’s argument in response to our second notice, [MIO 8 (citing State v. 12 Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967); State v. Boyer , 103 N.M. 13 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985))] the State was an “aggrieved” party 14 with the right to appeal the magistrate court’s order. See State v. Montoya , 15 2008-NMSC-043, ¶¶ 9-13, 18-20, 144 N.M. 458, 188 P.3d 1209 (holding that the 16 State has the right to appeal to district court the magistrate court’s dismissal for 17 lack of probable cause, because it was a dismissal on a procedural basis, not a 18 technical acquittal). 195 On appeal, the district court ruled that although the magistrate court 1 “attempted to acquit the Defendant of criminal trespass, acquittal was a legal 2 impossibility at that time because jeopardy had not yet attached . . . . because a jury 3 to decide the case had not been empaneled nor sworn.” [RP 83] The district court 4 entered its amended order on the State’s appeal which in pertinent part provides: 5 [T]his case is remanded to the magistrate court for proceedings to 6 continue in that court. The case sh all proceed from that point at which 7 the Magistrate ineffectually declared the Defendant not guilty by entry 8 of the Judgment and Sentenceon July 21, 2008. Rulings made prior 9 to entry of the Judgment and Sentenceremain in effect. Because the 10 State’s appeal is not a nullity, the time limit for commencement of 11 trial in the magistrate court under Rule 6-506 NMRA shall begin anew 12 when the mandate from this Court is filed in the magistrate court. 13 (See Rule 6-506(B)(4) NMRA.) [RP 88] 14 This Court’s jurisdiction lies from final, appealable orders. See Kelly Inn 15 No. 102, Inc. v. Kapnison , 113 N.M. 231, 824 P.2d 1033 (1992); see also Montoya 16 v. Anaconda Mining Co. , 97 N.M. 1, 4, 635 P.2d 1323, 1326 (Ct. App. 1981) 17 (observing that an appellate court will raise jurisdictional questions on its own 18 motion). An order is final if all issues of law and fact necessary to be determined 19 have been determined and the case was dis posed of by the trial court to the fullest 20 extent possible. See Kelly Inn , 113 N.M. at 236, 824 P.2d at 1038. 21 As we have stated, Defendant attempts to appeal from an order of remand. 22 [RP 84-85] In the absence of a double jeopardy violation, the district court order 236 remanding to magistrate court is nota final, reviewable order. See State v. 1 Ahasteen , 1998-NMCA-158, ¶ 11, 126 N.M. 238, 968 P.2d 328 (“Ordinarily, an 2 order remanding a case for further proceedi ngs in a lower court is not considered 3 ‘final’ for purposes of appeal. That is b ecause the case has not ended; it simply has 4 gone to another forum and may well returnagain.” (internal quotation marks and 5 citation omitted)). 6 In response to our second notice, Defendant argues that he has the right to an 7 appeal as an aggrieved party under the doctrine of practical finality. [MIO 5-6] We 8 disagree for the reasons set forth in our second notice. In Ahasteen , we acquired 9 jurisdiction under the doctrine of practicalfinality because if the defendant was 10 acquitted, the State would have no right to appeal its issue, and if the defendant 11 was convicted, the State’s issue on appeal would be moot or deemed harmless. 12 Id. ¶ 13. In the present case, without double jeopardy concerns and given 13 Defendant’s right to appeal in the event of conviction, Defendant will not lose the 14 protection of a constitutional right and th e order is not practically final. See State 15 v. Apodaca , 1997-NMCA-051, ¶¶ 15-17, 123 N.M. 372, 940 P.2d 478 (“We . . . 16 hold that a defendant has a constitutional right to appeal from an order denying a 17 motion to dismiss a charge on the ground that trial of the charge would subject the 18 defendant to double jeopardy.”); State v. Heinsen , 2005-NMSC-035, ¶¶ 7-29, 138 197 N.M. 441, 121 P.3d 1040 (refusing to apply the doctrine of practical finality to the 1 State’s appeal to the district court of the magistrate court’s suppression of the 2 evidence, despite the State’s concerns about acquittal, mootness, and the six-month 3 rule, because there is no constitutional ri ght of the State to appeal the rulings 4 rendered by a court of limited jurisdiction, because the district court had concurrent 5 jurisdiction over the charges, and because the State could file a nolle prosequi in 6 district court). Defendant has not presen ted any new argument to persuade us that 7 the district court’s order is final and immediately appealable. [MIO 6 (citing State 8 v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967); State v. Boyer , 103 N.M. 9 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985))] 10 For these reasons, we dismiss for l ack of a final, appealable order. 11 IT IS SO ORDERED. 12

13 MICHAEL E. VIGIL, Judge 14 WE CONCUR: 15

16 CELIA FOY CASTILLO, Judge 17

18 TIMOTHY L. GARCIA, Judge 198