               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                    Docket Nos. 41997/41998

STATE OF IDAHO,                                  )      2014 Opinion No. 103
                                                 )
       Plaintiff-Appellant,                      )      Filed: December 10, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
JOHN HUEY DANIELS,                               )
                                                 )
       Defendant-Respondent.                     )
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. D. Duff McKee, District Judge. Hon. Brian D. Lee,
       Magistrate. Hon. Karen J. Vehlow, Magistrate.

       Order of the district court dismissing appeal (Docket No. 41997), reversed
       and case remanded; order of the district court dismissing appeal (Docket No.
       41998), affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for respondent. Ben P. McGreevy argued.
                  ________________________________________________
GRATTON, Judge
       A criminal complaint against John Huey Daniels was dismissed by a magistrate after the
preliminary hearing. The State refiled the complaint and a second magistrate again dismissed the
complaint following a preliminary hearing. The State appealed both orders to the district court
and the district court dismissed the appeals. The district court determined that the State could
not appeal the dismissal of a complaint at the preliminary hearing stage.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2009, the State filed a complaint charging Daniels with one count of damage to or
destruction of insured property (Docket No. 41997). Idaho Code §§ 41-294; 18-204. Daniels
allegedly arranged to have a friend’s minivan set on fire so the friend could collect the insurance



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money, although he did not personally set the fire.        The complaint alleged that the crime
occurred in April 2008. Although an arrest warrant was issued the same day the complaint was
filed, Daniels was not arrested until September 2013.
        At the preliminary hearing held in November 2013, the magistrate dismissed the
complaint upon a finding of no probable cause. On the same day, the State refiled the complaint
bringing the same charge (Docket No. 41998).               Following a preliminary hearing in
December 2013, a different magistrate dismissed the complaint because the statute of limitations
had run. 1
        The State appealed to the district court from both orders of dismissal. The district court
subsequently issued conditional notices of dismissal in both cases, raising the question of
whether the State had the right to appeal from a dismissal following a finding of no probable
cause at a preliminary hearing. The State asserted that the appeal should proceed because the
statute of limitations would bar subsequent prosecution of the alleged crime, leaving the State
without the ability to refile the case. The district court rejected the State’s argument and
dismissed the appeals for lack of jurisdiction. The State timely appeals.
                                                II.
                                           ANALYSIS
        When an appeal is taken from a non-appealable order, it should be dismissed--if not by
motion of one of the parties, by the court itself--for lack of jurisdiction. Highlands Dev. Corp. v.
City of Boise, 145 Idaho 958, 960, 188 P.3d 900, 902 (2008). Whether a court lacks jurisdiction
is a question of law over which this Court exercises free review. State v. Jones, 140 Idaho 755,
757, 101 P.3d 699, 701 (2004).
        The Idaho Criminal Rules allow parties to appeal certain orders issued by a magistrate,
including an “order granting a motion to dismiss a complaint.” Idaho Criminal Rule 54.1(c). On
its face, this rule appears to allow a party to appeal any order dismissing a complaint. However,




1
        The five-year statute of limitations applicable here, Idaho Code § 19-402, would have run
in April 2013.


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the Idaho Supreme Court has interpreted the rule more narrowly in order to give effect to the
provisions of related rules. See State v. Ruiz, 106 Idaho 336, 678 P.2d 1109 (1984). 2
       In Ruiz, the State appealed the magistrate’s order dismissing the criminal complaint upon
finding that the State had not shown probable cause that the accused had committed the crimes
charged.   Id. at 336, 678 P.2d at 1109.        The district court dismissed the appeal as being
unauthorized. Id. The district court noted that the State would not be prevented from refiling the
complaint. Id. at 338, 678 P.2d at 1111. The Idaho Supreme Court held that a magistrate’s order
dismissing a criminal complaint at the preliminary hearing stage is not appealable when the
remedy of refiling is available. Id. Noting that its holding was similar to that of the Minnesota
Supreme Court, 3 the Idaho Supreme Court stated, “Our limiting the construction of
I.C.R. 54(a)[4] as not allowing appeals from a dismissal of a complaint when the remedy of
refiling is available is not without precedent.” Ruiz, 106 Idaho at 338, 678 P.2d at 1111.
(Emphasis added.) The Supreme Court specifically acknowledged that the applicable statute of
limitations and speedy trial concerns would not prevent the refiling in that case. Id. The Court
stated that the State’s ability to refile is “in effect having its assertion of error resolved in a new
preliminary hearing.” Id. at 337, P.2d at 1110.
       The issue was revisited by the Idaho Supreme Court in State v. Loomis, 146 Idaho 700,
201 P.3d 1277 (2009). In that case, the magistrate dismissed a complaint for aggravated assault
after a preliminary hearing on the legal ground that the State was required to prove that the
actions of self-defense were not justifiable. Id. at 701, 201 P.2d at 1278. The State appealed the
dismissal to the district court, which held that the State was not required to prove that the actions
of self-defense were not justifiable and remanded the case for a determination as to whether the
State had met its burden of showing probable cause. Id. Loomis then appealed that order to this
Court and, although both parties argued that the holding in Ruiz should be relaxed in the context
of an appeal of a question of law, we held, “[d]espite the legitimate arguments presented against

2
       The Ruiz Court specifically referenced the policy set out in Idaho Criminal Rule 2(a).
Rule 2(a) provides, “These rules are intended to provide for the just determination of every
criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in
administration and elimination of unjustifiable expense and delay.”
3
       State v. Maki, 192 N.W.2d 811 (Minn. 1971).
4
       Idaho Criminal Rule 54(a) was later renumbered to I.C.R. 54.1(c).

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applying Ruiz, we are constrained to follow its precedent” because the State conceded it had the
remedy to refile the case before another magistrate. Id. at 702, 201 P.3d at 1279.
       Subsequently, the State filed a petition for review, which was granted by the Idaho
Supreme Court. Id. Both the State and Loomis argued that the State should be able to appeal.
The State argued that legal rulings by magistrates could evade review, serial refiling may draw
accusations of bad faith or malicious prosecution, refiling requires re-arrest, the magistrates may
repeatedly misapply the law, and some counties have only one magistrate. Id. at 704, 201 P.3d at
1281. Ultimately, the Court rejected all of these arguments. The Court noted that in Ruiz it had
two options, which were to allow an appeal of any dismissal order, or to “hold that so long as the
State could re-file the complaint before another magistrate, it had no right to appeal a
complaint’s dismissal during the preliminary hearing phase.” Id. at 703, 201 P.3d at 1280.
(Emphasis added.) The Court stated: “We adopted the second option.” Id.
       The Supreme Court stated that other jurisdictions are split on how they deal with
dismissals of criminal complaints at the preliminary hearing stage, with several states allowing
the prosecution to appeal the dismissal (California, Colorado, Kansas, Utah, and Wisconsin), and
others not allowing the appeal of a magistrate’s dismissal at the preliminary hearing stage
(Minnesota and Georgia). Id. at 704, 201 P.2d at 1281. The Court stated that it was “not
persuaded to depart from our holding in Ruiz” and, in so holding, specifically noted that “The
State has a remedy available to it after such a dismissal--re-filing the complaint.” Id.
       Here, in dismissing Daniels’ appeal, the district court relied on the following statement in
Loomis: “The better rule is to strictly prohibit the State’s right to appeal from dismissals of
criminal complaints at the preliminary hearing stage so as to prevent lengthy and expensive
criminal proceedings and the squandering of public resources.” Id. (Emphasis added.) It
reasoned that while both Ruiz and Loomis discuss the alternate remedy of refiling by the State,
they did not go so far as to say that when the remedy of refiling is not available, the State may
appeal from a dismissal of criminal complaints at the preliminary hearing stage. Due to the
language in Loomis, the district court declined to hold that the State could appeal when it could
not refile the complaint.
       The State argues that since the holdings in Ruiz and Loomis limiting the right to appeal
are expressly contingent on the ability of the State to refile the complaint, where, as here, the
statute of limitations bars the State from refiling, the reasoning of those cases dictates that the


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State may, then, pursue an appeal. Daniels contends that the “strictly prohibit” language in
Loomis prohibits any appeal.        In addition, he contends that although the prior decisions
prohibited the State from appealing when the remedy of refiling was available, it does not
logically follow that they stand for the proposition the State may appeal when the remedy of
refiling is not available. He further asserts that the concerns of unjustifiable delay and expense
expressed in Ruiz and Loomis should preclude the State from appealing where its lack of action
caused the statute of limitations to expire. 5 We agree with the State.
       We hold that the State may appeal the dismissal of a complaint at the preliminary hearing
stage when the remedy of refiling is not available. Our holding is consistent with the holdings in
Ruiz and Loomis, which foreclose the right to appeal the dismissal of a complaint so long as the
remedy of refiling is available. Ruiz, 106 Idaho at 338, 678 P.2d at 1111; Loomis, 146 Idaho at
704, 201 P.2d at 1281. While the district court relied on the “strictly prohibit” language from
Loomis in dismissing Daniels’ appeal, the Loomis Court did not go so far as to prohibit all such
appeals. The policy behind the limitations imposed by Ruiz and Loomis was to require the State
to pursue the most expedient remedy available to it; namely, refiling, rather than proceeding
through the appellate process. In affirming the Ruiz decision, the Loomis Court determined that
the means to achieving this end is to strictly prohibit the State’s right to appeal so long as the
remedy of refiling is available. Loomis, 146 Idaho at 704, 201 P.2d at 1281. The Loomis Court
did not otherwise modify the application of Ruiz. Accordingly, we are constrained to follow the
precedent of Ruiz and Loomis, allowing the State to appeal the dismissal of a complaint when the
remedy of refiling is not available and foreclosing the right to appeal when it is. 6




5
        Daniels argued that he was in fact incarcerated in Idaho for much of the time the statute
of limitations was running and the State failed to serve his arrest warrant sooner.
6
        We are mindful that Daniels argues the State created its own delay by failing to serve him
with an arrest warrant while he was incarcerated locally and thus should not be permitted to
refile or appeal outside the statute of limitations. However, while a substantial period passed
from filing to service, the circumstances are not apparent in our record. Whether the delay
presents some remedy to Daniels other than preventing the appeal is a matter on which we
express no opinion.

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                                                III.
                                         CONCLUSION
       We conclude that the State may appeal the dismissal of a complaint at the preliminary
hearing stage where the statute of limitations has lapsed and the State is therefore without the
remedy of refiling the complaint. Accordingly, we reverse the district court’s dismissal of the
appeal in Docket No. 41997 and remand to the district court. In Docket No. 41998, the statute of
limitations had lapsed and, therefore, we affirm the district court’s dismissal of the appeal.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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