 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 29,391

10 JESSE ALEX,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Karen L. Townsend, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Eleanor Brogan, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.
 1        Defendant appeals the district court amended order which remands

 2 Defendant’s case to the magistrate court. We issued a notice of proposed summary

 3 disposition, proposing to reverse on the grounds that magistrate court judgment

 4 was an acquittal and that the Double Jeopardy Clause bars review in district court.

 5 The State filed a response to our notice, and persuaded this Court that jeopardy had

 6 not yet attached, and therefore, the State’s appeal to the district court is not barred

 7 by the prohibition against double jeopardy. Our second notice of proposed

 8 summary disposition proposed to dismiss for lack of a final, appealable order.

 9 Defendant has responded to our second notice with a memorandum in opposition.

10 Defendant has not persuaded us that he may immediately appeal the district court’s

11 remand order. We dismiss.

12        In response to our second notice, Defendant continues to argue that the

13 magistrate court judgment and sentence acquitted Defendant of criminal trespass

14 and that the State could not appeal that acquittal to district court. [MIO 6-8]

15 Defendant argues that jeopardy attached when the magistrate court heard argument

16 from the State at the pretrial motions hearing indicating that it had insufficient

17 evidence to proceed to trial. [MIO 7] We cannot agree with Defendant because, as

18 our second notice pointed out, the magistrate court dismissal of the case occurred

19 before trial, and before the jury was empaneled or sworn. See State v. Davis, 1998-

                                               2
 1 NMCA-148, ¶¶ 9-16, 126 N.M. 297, 968 P.2d 808 (holding that the defendant was

 2 not twice placed in jeopardy when the State appealed to the district court the

 3 metropolitan court pre-trial dismissal of the charges against the defendant).

 4 Because a defendant must be placed before the trier of fact that determines guilt or

 5 innocence for jeopardy to attach, see id. ¶¶ 12-14, our second notice proposed to

 6 hold that Defendant was not placed in jeopardy twice when there was a pretrial

 7 dismissal and the State appealed to the district court. Defendant’s response does

 8 not explain why his case differs from Davis. Therefore, he has not persuaded this

 9 Court that the State’s appeal to the district court is barred by the prohibition against

10 double jeopardy.

11        In magistrate court, the State failed to make several of its witnesses available

12 for interview, despite repeated requests from Defendant and an order of the

13 magistrate court. [DS 2] The trial setting was pushed back twice, during which

14 time the State made no effort to rectify the discovery violations. [DS 3] Close to

15 the sixth month since the filing of the criminal complaint and two days before the

16 trial setting, the magistrate court excluded the testimony of those witnesses the

17 State had failed to make available. [DS 2-3]

18        At the hearing on Defendant’s suppression motion, on the same day as the

19 final trial setting, the State informed the magistrate court that it was unable to

                                               3
 1 present sufficient evidence to secure a conviction based on the testimony of the

 2 remaining witness in the case. [Id.] This occurred only a few days before the

 3 expiration of the six-month rule period. [Id.] The State did not seek another

 4 continuance, file a nolle prosequi and refile the charge in district court or express

 5 an intention to do so, nor did it ever seek to appeal the magistrate court’s order

 6 excluding the witnesses’ testimony. [Id.] Rather than hold the suppression hearing

 7 or the trial on the charge, the magistrate court dismissed the case based on the

 8 State’s stipulation that it had insufficient evidence to convict and entered a form

 9 judgment and sentence that purported adjudicate Defendant not guilty of criminal

10 trespass. [DS 3; RP 8]

11        The State appealed the judgment to the district court. [RP 1] Contrary to

12 Defendant’s argument in response to our second notice, [MIO 8 (citing State v.

13 Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967); State v. Boyer, 103 N.M.

14 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985))] the State was an “aggrieved” party

15 with the right to appeal the magistrate court’s order. See State v. Montoya,

16 2008-NMSC-043, ¶¶ 9-13, 18-20, 144 N.M. 458, 188 P.3d 1209 (holding that the

17 State has the right to appeal to district court the magistrate court’s dismissal for

18 lack of probable cause, because it was a dismissal on a procedural basis, not a

19 technical acquittal).

                                               4
 1        On appeal, the district court ruled that although the magistrate court

 2 “attempted to acquit the Defendant of criminal trespass, acquittal was a legal

 3 impossibility at that time because jeopardy had not yet attached . . . . because a jury

 4 to decide the case had not been empaneled nor sworn.” [RP 83] The district court

 5 entered its amended order on the State’s appeal which in pertinent part provides:

 6        [T]his case is remanded to the magistrate court for proceedings to
 7        continue in that court. The case shall proceed from that point at which
 8        the Magistrate ineffectually declared the Defendant not guilty by entry
 9        of the Judgment and Sentence on July 21, 2008. Rulings made prior
10        to entry of the Judgment and Sentence remain in effect. Because the
11        State’s appeal is not a nullity, the time limit for commencement of
12        trial in the magistrate court under Rule 6-506 NMRA shall begin anew
13        when the mandate from this Court is filed in the magistrate court.
14        (See Rule 6-506(B)(4) NMRA.) [RP 88]

15        This Court’s jurisdiction lies from final, appealable orders. See Kelly Inn

16 No. 102, Inc. v. Kapnison, 113 N.M. 231, 824 P.2d 1033 (1992); see also Montoya

17 v. Anaconda Mining Co., 97 N.M. 1, 4, 635 P.2d 1323, 1326 (Ct. App. 1981)

18 (observing that an appellate court will raise jurisdictional questions on its own

19 motion). An order is final if all issues of law and fact necessary to be determined

20 have been determined and the case was disposed of by the trial court to the fullest

21 extent possible. See Kelly Inn, 113 N.M. at 236, 824 P.2d at 1038.

22        As we have stated, Defendant attempts to appeal from an order of remand.

23 [RP 84-85] In the absence of a double jeopardy violation, the district court order

                                              5
 1 remanding to magistrate court is not a final, reviewable order. See State v.

 2 Ahasteen, 1998-NMCA-158, ¶ 11, 126 N.M. 238, 968 P.2d 328 (“Ordinarily, an

 3 order remanding a case for further proceedings in a lower court is not considered

 4 ‘final’ for purposes of appeal. That is because the case has not ended; it simply has

 5 gone to another forum and may well return again.” (internal quotation marks and

 6 citation omitted)).

 7        In response to our second notice, Defendant argues that he has the right to an

 8 appeal as an aggrieved party under the doctrine of practical finality. [MIO 5-6] We

 9 disagree for the reasons set forth in our second notice. In Ahasteen, we acquired

10 jurisdiction under the doctrine of practical finality because if the defendant was

11 acquitted, the State would have no right to appeal its issue, and if the defendant

12 was convicted, the State’s issue on appeal would be moot or deemed harmless.

13 Id. ¶ 13. In the present case, without double jeopardy concerns and given

14 Defendant’s right to appeal in the event of conviction, Defendant will not lose the

15 protection of a constitutional right and the order is not practically final. See State

16 v. Apodaca, 1997-NMCA-051, ¶¶ 15-17, 123 N.M. 372, 940 P.2d 478 (“We . . .

17 hold that a defendant has a constitutional right to appeal from an order denying a

18 motion to dismiss a charge on the ground that trial of the charge would subject the

19 defendant to double jeopardy.”); State v. Heinsen, 2005-NMSC-035, ¶¶ 7-29, 138

                                              6
 1 N.M. 441, 121 P.3d 1040 (refusing to apply the doctrine of practical finality to the

 2 State’s appeal to the district court of the magistrate court’s suppression of the

 3 evidence, despite the State’s concerns about acquittal, mootness, and the six-month

 4 rule, because there is no constitutional right of the State to appeal the rulings

 5 rendered by a court of limited jurisdiction, because the district court had concurrent

 6 jurisdiction over the charges, and because the State could file a nolle prosequi in

 7 district court). Defendant has not presented any new argument to persuade us that

 8 the district court’s order is final and immediately appealable. [MIO 6 (citing State

 9 v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967); State v. Boyer, 103 N.M.

10 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985))]

11        For these reasons, we dismiss for lack of a final, appealable order.

12        IT IS SO ORDERED.


13
14                                          MICHAEL E. VIGIL, Judge

15 WE CONCUR:


16
17 CELIA FOY CASTILLO, Judge


18
19 TIMOTHY L. GARCIA, Judge

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