This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 30,158 9 Y’HOSHUA COHEN, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 12 Karen L. Parsons, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Rabbi Y’hoshua Cohen 17 Alto, NM 18 Pro Se Appellant 19 MEMORANDUM OPINION 20 FRY, Chief Judge. 21 Rabbi Y’hoshua Cohen, pro se (Defendant) appeals from the district court’s 22 judgment and sentence and remand to magistrate court for enforcement of sentence. 23 [RP 13] Defendant raises three issues on appeal, contending that (1) the arresting 242 police officer could not prosecute Defendant’s de novo appeal to district court; (2) the 1 evidence was insufficient to convict Defendant of speeding, failure to carry insurance 2 or registration for his vehicle because the officer did not produce his vehicle tape and 3 lied about the events that occurred; and (3) the magistrate court failed to allow 4 adequate discovery and faile d otherwise to give Defe ndant a fair trial. [ See, e.g. , DS 5 numbered as page 13, ¶ 15] 6 This Court’s calendar notice proposed summary reversal on Issue 1. The State 7 has filed a response in which it agrees that reversal is appropriate. We further note 8 that Defendant has filed a motion for extension of time to file the memorandum and 9 a transcript, and a motion for appointment of appellate defense counsel. Since this 10 memorandum opinion disposes of Defendant’s appeal in favor of Defendant, we 11 hereby deny Defendant’s motions as moot. 12 DISCUSSION 13 The record proper indicates that Defendant filed a written motion to dismiss the 14 district court de novo appeal on the issue of whether the arresting police officer could 15 not prosecute Defendant’s de novo appeal to district court. [RP 10-11] The State did 16 not file a written response to the motion. The district court’s order affirming 17 Defendant’s convictions in magistrate c ourt states: “the officer is permitted to 18 prosecute traffic citations under statutes in [m]agistrate [c]ourts in the State of New 193 Mexico and there is no reason to restrict th e officer from doing so in [d]istrict [c]ourt 1 on appeal from [m]agistrate [c]ourt.” We disagree. 2 Attorney General Opinion No. 89-27 construes all of the relevant statutes and 3 rules relating to this issue. See 89-27 Op. Att’y Gen. 1-3 (1989) (advising that police 4 officers may not continue to prosecute crimin al cases in district court after an appeal 5 of the magistrate court judgment has been filed in district court without violating 6 NMSA 1978, Section 36-1-19 (1985). The opinion concludes that, while Rule 6- 7 108(B) NMRA of the Rules of Criminal Pro cedure for the Magistrate Courts allows 8 a police officer to prosecute a criminal case in magistrate court, there is no authority 9 under any statute or Supreme Court rule for th e police officer to do so on behalf of the 10 State in district court on a de novo appeal fro m magistrate court. In fact, there is 11 express statutory authority to the contrary. Section 36-1-19(A) sets out the general 12 rule regarding legal repres entation of governmental entities in criminal prosecutions: 13 no one shall represent the state or any county thereof in any matter in 14 which the state or county is interest ed except the attorney general, his 15 legally appointed and qualif ied assistants or the district attorney or his 16 legally appointed and qua lified assistants and such associate counsel as 17 may appear on order of the court, with the consent of the attorney 18 general or district attorney. 19 In this case, Defendant was prosecuted and convicted in magistrate court for 20 violating state statutes that prohibit speed ing, and require a ve hicle owner to carry 21 proof of insurance and registration. [RP 2] Rule 6-108( B) allows the investigating 224 police officer, Officer Hazen, to prosecute th ese violations in magistrate court. As 1 quoted above, Section 36-1-19, however, requi res “the attorney general, his legally 2 appointed and qualified assistants or the district attorney or his legally appointed and 3 qualified assistants and such associate couns el as may appear on order of the court, 4 with the consent of the attorney general ordistrict attorney.” NMSA 1978, Section 5 36-1-2 (1984) provides that “[e]ach district attorney in this state may appoint one or 6 more suitable persons who sha ll be attorneys-at-law practicing their profession in this 7 state and members of the bar of this state to be his assistants.” The exception provided 8 by Rule 6-108(B) that allows Officer Hazen to prosecute the case against Defendant 9 in magistrate court does not apply to the district courts. Rule 6-703(J) NMRA 10 provides that “appeals from the magistrate court to the district court shall be de 11 novo[,]” and Rule 6-703(N) NMRA provides th at such appeals “shall be governed by 12 the rules of Criminal Procedure for the District Courts.” We know of no provision in 13 the Rules of Criminal Procedure for the Distri ct Courts that modifies the general rule 14 of Section 36-1-19, which does not permit Officer Hazen to appear before the district 15 court to prosecute Defendant’s de novo appeal from the magi strate court in this case. 16 The State’s response to this Court’s cal endar notice agrees with the calendar 17 notice analysis. [State’s response] The St ate requests that this Court reverse and 18 remand to the district court fo r Defendant to be re tried in district court on Defendant’s 195 de novo appeal on the basis that such re trial will not violate Defendant’s double 1 jeopardy rights. [State’s Response, 4-5] We decline the State’ s request and take no 2 position on whether retrial in district court of Defendant’s de novo appeal from his 3 metropolitan conviction would violat e Defendant’s double jeopardy rights. 4 CONCLUSION 5 Accordingly, with regard to Issue 1, we reverse and remand to the district court 6 for further proceedings consistent with this opinion. 7 IT IS SO ORDERED. 8

9 CYNTHIA A. FRY, Chief Judge 10 WE CONCUR: 11

12 RODERICK T. KENNEDY, Judge 13

14 LINDA M. VANZI, Judge 15