November 17, 2011 – State of New Mexico v. Andy L. Valerio, No. 30,199

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	NOVEMBER 17, 2011
NO. 30,199
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
ANDY L. VALERIO,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Sam B. Sanchez, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Joel Jacobsen, Assistant Attorney General
Albuquerque, NM
for Appellant
David Henderson
Santa Fe, NM
for Appellee

OPINION
FRY, Judge.
{1} 	Defendant was charged by criminal complaint in magistrate court with two
misdemeanor counts of criminal sexual contact. After the magistrate court declined
to dismiss the charges on the basis of alleged deficiencies in the criminal complaint,
Defendant filed an emergency petition for a writ of prohibition in district court, which
was subsequently granted. 	We conclude that the writ of prohibition was not
appropriate because the magistrate court had subject matter and personal jurisdiction
in this case, and Defendant failed to establish that he did not have an adequate remedy
at law. We therefore reverse and remand for further proceedings in the magistrate
court consistent with this Opinion.
BACKGROUND
A. 	Magistrate Court Proceedings
{2} 	On January 12, 2009, the State filed a criminal complaint in magistrate court
charging Defendant with two misdemeanor counts of criminal sexual contact in
violation of NMSA 1978, Section 30-9-12(A), (D) (1993). The complaint indicated
that the alleged illegal contact occurred between February 1, 2007, and April 30, 2008.
It also included the following statement: “I swear or affirm under penalty of perjury
that the facts set forth above are true to the best of my information and belief. 	I

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understand it is a criminal offense subject to the penalty of imprisonment to make a
false statement in a criminal complaint.” Following this statement, however, there
was no signature. Instead, the complaint concluded with the prosecutor’s signature.
Defendant was arraigned on the basis of this complaint on April 23, 2009, and he
pleaded not guilty to both charges.
{3} 	On May 20, 2009, the State filed an amended criminal complaint in magistrate
court. Although the charges remained the same, the amended complaint reduced the
time period that the alleged contact occurred by one year to reflect that the alleged
contact occurred between February 1, 2007, and April 30, 2007. 	The amended
complaint also included the statement quoted above, and it was now signed by an
individual that the parties agree was Officer Matthew Martinez. 	In addition, the
amended complaint, like the original, was signed by the prosecutor.
{4} 	On June 24, 2009, Defendant filed the first of two motions to dismiss the case
due to alleged deficiencies in the first criminal complaint and the amended complaint.
Initially, he moved to dismiss due to the lack of a valid charging document, arguing
that the first criminal complaint failed to comply with Rule 6-201 NMRA because it
did not include a sworn statement of facts. See Rule 6-201(A)(1) (providing that one
method of commencing a criminal action in magistrate court is by the filing of “a
complaint consisting of a sworn statement containing the facts”). Defendant filed a

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similar motion to dismiss on July 6, 2009, in which he argued that the State had failed
to file a bill of particulars and also had “failed to allege specific and sufficient facts
to commence a criminal action.”
{5} 	In response to Defendant’s motions, the State argued that all necessary facts
were sufficiently set forth in the complaint through the statutes cited in it;
alternatively, the State argued that even if the first complaint was defective, the proper
remedy was to allow the State to amend that complaint pursuant to Rule 6-303
NMRA—which the State had already done—rather than to dismiss the case. See Rule
6-303(A) (stating that “[t]he court may at any time prior to a verdict cause the
complaint or citation to be amended with respect to any . . . defect, error, omission[,]
or repugnancy if no additional or different offense is charged and if substantial rights
of the defendant are not prejudiced”). After a hearing, the magistrate court denied
both motions filed by Defendant in which he had alleged that the first criminal
complaint was defective due to the lack of a sworn statement.
{6} 	Despite the earlier denial, Defendant later filed two more motions to dismiss,
arguing that the State had failed to file a valid complaint because the first criminal
complaint was defective and the amended complaint was filed outside the applicable
statute of limitations. 	Defendant argued that the failure to timely commence
prosecution was a “jurisdictional bar to the continued prosecution of [Defendant].”

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The magistrate court again denied Defendant’s dismissal motions following a hearing.
Defendant then proceeded to file an emergency petition for a writ of prohibition in the
district court. The magistrate court proceedings were stayed pending the outcome of
the writ proceedings in district court.
B. 	Writ of Prohibition
{7} 	In his petition to the district court for an emergency writ of prohibition,
Defendant raised two arguments, only one of which is relevant to this appeal.
Defendant argued that the magistrate court lacked personal jurisdiction to hear
Defendant’s case due to the alleged expiration of the statute of limitations.
Specifically, he argued that the first complaint contained a “critical defect” due to the
failure to include a sworn statement and that it therefore could not form the basis for
initiating criminal proceedings against him. With respect to the amended complaint,
Defendant argued that it too was invalid because it “was filed after the applicable
[two-]year statute of limitations on commencing an action for [a] misdemeanor, [as]
defined by [NMSA 1978, Section 30-1-8(C) (2009)].” 	See § 30-1-8(C) (providing
that for misdemeanors, a “person shall not be prosecuted, tried or punished in any
court of this state unless . . . [the] complaint is filed . . . within two years from the time
the crime was committed”). Defendant concluded that the State’s failure to file a valid

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complaint within the prescribed time period robbed the magistrate court of jurisdiction
and required dismissal of the case.
{8} 	In response to Defendant’s petition, the State argued that a writ of prohibition
was not the proper remedy and that Defendant was “using the writ as a substitute for
an appeal.” 	Asserting that a writ of prohibition is an extraordinary remedy that is
available only under “exceptional circumstances,” the State contended that Defendant
had failed to establish why an ordinary appeal was not an adequate remedy in this case
and further argued that he had not demonstrated any prejudice to him on the merits as
a result of any deficiency in the complaints.
{9} 	On January 20, 2010, the district court held a hearing at which it granted
Defendant’s petition for a writ of prohibition. The court found that the first criminal
complaint was invalid and that the amended complaint was filed after the statute of
limitations ran. Concluding that the magistrate court “cannot proceed with this case
because it lacks jurisdiction,” the district court ordered that the “case be remanded to
[m]agistrate [c]ourt for the entry of an order dismissing the case.” 	This appeal
followed.
DISCUSSION
{10} 	The State argues that the district court erred in granting the writ of prohibition
because (1) Defendant had an adequate remedy at law and (2) the magistrate court’s

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determination regarding the validity of the initial complaint and the alleged expiration
of the statute of limitations did not implicate its jurisdiction, and a writ proceeding
was therefore improper. Although the State claims that the magistrate court correctly
resolved the merits of the underlying dispute concerning the statute of limitations, it
asserts that it is sufficient for purposes of this appeal to address only whether the writ
of prohibition was a proper remedy. 	We agree and therefore limit our analysis
accordingly.
A. 	The District Court’s Order Was Final and Appealable
{11} 	As a preliminary matter, we determine whether the district court’s order issuing
the writ of prohibition is a final, appealable order. Defendant argues that the State’s
appeal is moot because the State filed its notice of appeal in this case prior to the entry
of the order of dismissal by the magistrate court. The district court’s order granting
the writ of prohibition was filed on January 25, 2010, and the State filed its notice of
appeal from that order on the next day, January 26, 2010. 	The following day, on
January 27, 2010, the magistrate court entered an order dismissing the case with
prejudice based on the district court’s order. Defendant’s argument appears to be that
an appeal in this case could only have been properly filed from the magistrate court’s
order and not from the district court’s order, which was filed two days earlier.

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{12} 	The right to appeal is generally restricted to final judgments and decisions.
State v. Begay, 2010-NMCA-089, ¶ 11, 148 N.M. 685, 241 P.3d 1125. For purposes
of appeal, “[a] final order is commonly defined as an order that decides all issues of
fact and law necessary to be determined or which completely disposes of the case to
the extent the court had the power to dispose of it.” 	Id. 	With respect to criminal
cases, a final judgment is “one which either (1) adjudicates the defendant to have been
convicted of a criminal offense and imposes, suspends[,] or defers sentence[;] or (2)
dismisses all of the charges against the defendant.” 	State v. Garcia, 99 N.M. 466,
471, 659 P.2d 918, 923 (Ct. App. 1983). We also note that “finality is to be given a
practical, rather than a technical, construction.” Begay, 2010-NMCA-089, ¶ 11
(internal quotation marks and citation omitted).
{13} 	We conclude that the district court’s order is a final, appealable order. 	It is
clear that the district court’s order, in effect, dismissed all charges against Defendant
because the district court determined that the initial complaint was invalid and that the
amended complaint was filed outside the statute of limitations period. The order also
effectively disposed of all issues in the case by finding that the magistrate court could
not proceed with the case because it “lack[ed] jurisdiction” as a result of the invalid
complaints.

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{14} 	In addition, although the district court order’s decretal language directed that
the case “be remanded to [m]agistrate [c]ourt for the entry of an order dismissing the
case,” the remand instruction did not render the order non-final. Although ordinarily
an order remanding a case for further proceedings is not considered final for purposes
of appeal, id. ¶ 13, we have previously determined that a remand order is final in
certain circumstances, such as here, where the remand directs the lower tribunal to
perform a task requiring no exercise of discretion. 	See State v. Montoya, 2005-
NMCA-005, ¶ 5, 136 N.M. 674, 104 P.3d 540 (holding that a district court order
remanding to magistrate court to impose the original sentence was a final judgment
because 	the 	magistrate 	court 	lacked 	the 	authority 	to 	make 	any 	substantive
determination regarding the defendant’s sentence on remand and was limited to the
“purely ministerial act of imposing the original sentence”). Here, Defendant does not
dispute that the magistrate court on remand was left with no discretion to revisit the
issue of the validity of the complaints or the statute of limitations and could only
perform the ministerial task of entering an order dismissing the charges against
Defendant. We agree with the State that it would be pointless to require the State to
challenge the writ proceedings by appealing the magistrate court’s order because that
appeal would be to the very court that issued the writ of prohibition and ordered the
magistrate court to dismiss the charges. 	See NMSA 1978, § 35-13-2(A) (1996)

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(stating that “[a]ppeals from the magistrate courts shall be tried de novo in the district
court”). Thus, we conclude the district court order for purposes of this appeal is a
final order.
{15} 	We are not persuaded by Defendant’s arguments to the contrary. Defendant’s
primary contention is that the State should have sought a stay of the district court’s
order once it filed the notice of appeal and that, without such a stay, the magistrate
court properly acted in dismissing the charges. However, Defendant relies on civil
case law and the rules of civil procedure governing district courts in support of his
argument, and we are not convinced that this authority should be applied in the
criminal context. 	The State’s appeal is not moot, and we therefore proceed to the
merits of this appeal.
B. 	The Writ of Prohibition Was Not a Proper Remedy
{16} 	District courts have the authority under Article VI, Section 13 of the New
Mexico Constitution to issue writs of prohibition to courts of inferior jurisdiction. See
N.M. Const. art. VI, § 13 (“The district courts, or any judge thereof, shall have power
to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari,
prohibition and all other writs, remedial or otherwise in the exercise of their
jurisdiction; provided, that no such writs shall issue directed to judges or courts of
equal or superior jurisdiction.”). The State contends that a writ of prohibition was an

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improper remedy in this case for two reasons: 	(1) the magistrate court had proper
subject matter and personal jurisdiction in this case, and (2) Defendant had an
adequate remedy at law. We address each of these arguments in turn.
1. 	The Parties’ Arguments Concerning the Magistrate Court’s Jurisdiction
{17} 	In his petition for a writ of prohibition, Defendant relied on State v. Kerby,
2007-NMSC-014, 141 N.M. 413, 156 P.3d 704, to argue that a criminal statute of
limitations is jurisdictional in nature and, therefore, the magistrate court’s alleged
erroneous ruling on the statute of limitations issue in this case functioned as a
“jurisdictional bar to the continued prosecution” of Defendant. 	The district court
found this reasoning persuasive, as reflected in the court’s order finding that the
magistrate court lacked jurisdiction to proceed further in the case. 	On appeal,
Defendant makes a similar argument in favor of the correctness of the district court’s
decision to enter a writ of prohibition. 	He contends that a court does not have “the
authority to try a person in violation of a limitations statute” and that criminal statutes
of limitations implicate the “fundamental jurisdiction of a trial court to proceed with
a prosecution.” The State argues that Kerby is inapposite because it held that criminal
statutes of limitations are not jurisdictional. The State also contends that any alleged
legal error committed by a court regarding the statute of limitations does not deprive
that court of its jurisdiction to act.

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{18} 	We need not engage in a careful review of Kerby for two reasons. First, the
discussion in Kerby regarding the statute of limitations is not precisely applicable to
the circumstances in this case because Kerby involved the question whether a criminal
defendant may waive the protection of the statute of limitations, a question not raised
here. Id. ¶¶ 12-19. Second, the inquiry in the present case is whether the district court
misconstrued the term “jurisdiction” as it applies in the context of writs of prohibition,
which is a question not addressed in Kerby.
{19} 	Our Supreme Court has stated a number of times that a writ of prohibition is
“an extraordinary writ, issued by a superior court to an inferior court to prevent the
latter from exceeding its jurisdiction, either by prohibiting it from assuming
jurisdiction in a matter over which it has no control, or from going beyond its
legitimate powers in a matter of which it has jurisdiction.” 	In re Extradition of
Martinez, 2001-NMSC-009, ¶ 7, 130 N.M. 144, 20 P.3d 126 (internal quotation marks
and citation omitted). 	See generally Richard C. Bosson & Steven K. Sanders, The
Writ of Prohibition in New Mexico, 5 N.M. L. Rev. 91, 101-12 (1974). The Court has
defined jurisdiction in this context as “the court’s power to entertain and hear the
suit,” see id. at 101 (internal quotation marks and footnote omitted), and has further
explained that the jurisdictional test is “not whether the court had a right to decide the
issue in a particular way, but did it have the right to decide it at all.” In re Extradition

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of Martinez, 2001-NMSC-009, ¶ 7 (quoting State ex rel. Kermac Nuclear Fuels Corp.
v. Larrazolo, 70 N.M. 475, 481, 375 P.2d 118, 122 (1962)). Thus, the critical inquiry
required in this case is one of subject matter and personal jurisdiction—i.e., whether
the magistrate court had “jurisdiction over the subject matter of the dispute and over
each of the parties to the dispute.” Id.
{20} 	In this case, the parties do not dispute that the magistrate court had jurisdiction
to make determinations regarding the sufficiency of the complaints or the alleged
expiration of the statute of limitations. It is also undisputed that the magistrate court
had jurisdiction to try Defendant on the two misdemeanor charges. 	Defendant
properly filed his motions to dismiss, and the magistrate court held at least two
hearings on this matter before determining that the complaints were valid and did not
violate the statute of limitations. 	Defendant does not argue on appeal that the
magistrate court lacked subject matter or personal jurisdiction at any point during
these proceedings. Thus, we conclude that a writ of prohibition was not appropriate
because the magistrate court had proper subject matter jurisdiction and personal
jurisdiction. 	See 	In 	re 	Extradition 	of 	Martinez, 	2001-NMSC-009, 	¶¶ 	8-11
(determining that a writ of prohibition was not proper where the district court had both
subject matter and personal jurisdiction to hear the defendant’s arguments that he
should not be extradited as a result of an alleged technical deficiency in his warrant);

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Kermac, 70 N.M. at 476, 481-82, 375 P.2d at 119, 122-23 (determining that where
district court had personal and subject matter jurisdiction in a workers’ compensation
case, it was improper to issue a writ of prohibition on the issue of, among other things,
the statute of limitations).
{21} 	Defendant’s primary argument is not that the magistrate court lacked subject
matter or personal jurisdiction, but that its “erroneous” determination on the statute
of limitations issue functioned as a “jurisdictional bar to the continued prosecution”
of Defendant. However, as we have explained, the jurisdictional test is not whether
the court had a right to decide the issue in a particular way, but whether it had the
right to decide the issue at all. See Kermac, 70 N.M. at 481, 375 P.2d at 122 (stating
that the correct rule for the issuance of a writ of prohibition is that “jurisdiction being
present of both the subject matter and the parties, ordinarily prohibition will not issue,
and further that the question was not whether the court had a right to decide the issue
in a particular way, but did it have the right to decide it at all”). 	The fact that the
magistrate court may have reached an erroneous ruling regarding the statute of
limitations 	in 	this 	case—when 	it 	had 	both 	subject 	matter 	and 	personal
jurisdiction—does not give any basis for a writ of prohibition. 	Thus, because the
magistrate court had jurisdiction and authority to make a determination regarding the

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validity of the complaints and the statute of limitations—even if it was in error—a
writ of prohibition was not appropriate.
2. 	Defendant Had an Adequate Remedy at Law
{22} 	We also address the State’s argument that the writ of prohibition was not
appropriate because Defendant had an adequate remedy at law that he could utilize to
correct any allegedly erroneous rulings made by the magistrate court. 	The State
contends that Defendant could have appealed “from the magistrate[ court’s] ruling
upon entry of a final judgment after trial or upon a conditional guilty plea” under
Article VI, Section 27 of the New Mexico Constitution. See N.M. Const. art. VI, § 27
(“Appeals 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.”). 	The State further
claims that the issuance of the writ of prohibition by the district court amounted to “a
piecemeal interlocutory appeal.”
{23} 	It is well established that the extraordinary writ of prohibition is generally
available only in cases where there is no adequate remedy at law. See 63C Am. Jur.
2d Prohibition § 14 (2011) (“In the absence of any statutory provision to the contrary,
it is the general rule that prohibition, being an extraordinary writ, cannot be resorted
to when the ordinary and usual remedies provided by law are adequate and available.”

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(footnote omitted)); see also State ex rel. Miller v. Tackett, 68 N.M. 318, 324, 361
P.2d 724, 728 (1961) (“We recognize the oft-repeated rule that a writ of prohibition
is not a writ of right, but instead, is one of sound judicial discretion that is issued or
withheld according to the circumstances of each particular case, and which is used
with great caution in the furtherance of justice, where it is plain that the court, officer,
or person against whom it is sought is about to exercise some judicial or quasi judicial
power; the exercise of which is clearly unauthorized by law and will result in injury
for which no other adequate remedy exists” (internal quotation marks and citation
omitted)); cf. Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶ 20, 140 N.M. 77, 140
P.3d 498 (referring to the general principle that all extraordinary writs are “available
only in cases wherein other remedies fail or are inadequate” (internal quotation marks
and citation omitted)).
{24} 	We agree with the State that Defendant had an adequate remedy by way of a de
novo appeal to the district court following the entry of a final judgment in the
magistrate court. Rule 6-703(A) NMRA (“A party who is aggrieved by the judgment
or final order in a criminal action may appeal, as permitted by law, to the district court
of the county within which the magistrate court is located.”). Defendant has failed to
explain how this remedy was inadequate or otherwise unavailable to him under the
circumstances of this case. 	His only argument appears to be that he would be

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prejudiced by having to “await conviction” for “crimes that evoke strong public
opinion” and “then await the outcome of a de novo appeal in [d]istrict [c]ourt.” We
are not persuaded. Although the magistrate court denied his motions to dismiss, there
is no indication that further criminal proceedings would result in convictions. Nor are
we persuaded that the time involved in going through trial and a de novo appeal in this
case is a burden significant enough to merit the exercise of a writ of prohibition. See
State ex rel. Harvey v. Medler, 19 N.M. 252, 260, 142 P. 376, 378 (1914) (stating that
“as a general rule, the writ of prohibition cannot be used to correct mere irregularities,
or to perform the functions of an appeal or writ of error”). {25} 	Defendant also argues
that a de novo appeal from a final judgment in magistrate court is not an adequate
remedy for any statute of limitations violation because like double jeopardy, the
statute of limitations in a criminal case is intended to limit exposure to prosecution
altogether, not simply to provide an alternative basis for reversal in a de novo appeal.
Defendant does not cite any authority equating double jeopardy protections to the bar
provided by the statute of limitations. Therefore, we decline to consider the issue.
See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984)
(explaining that appellate court will not consider an issue if no authority is cited in
support of the it).

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{26} 	To hold that a writ of prohibition proceeding is appropriate in any case where
the trial court may have erroneously ruled on a statute of limitations issue—or, for that
matter, any other dispositive issue that might obviate the need for trial—is contrary
to the purposes underlying the use of extraordinary writs and our general policy
disfavoring the use of piecemeal appeals. “[N]either the writ of prohibition nor the
writ of superintending control should be used as a substitute for a decision on direct
or interlocutory appeal.” Chappell v. Cosgrove, 1996-NMSC-020, ¶ 6, 121 N.M. 636,
916 P.2d 836; see also 7 Wayne R. LaFave et al., Criminal Procedure § 27.4(b), at 50
(3d ed. 2007) (“Even in those jurisdictions that [utilize a writ proceeding to] reach a
broad range of issues . . ., courts continue to stress that the writs should be sparingly
allowed. This reluctance reflects both the apprehension that the writs could be used
so frequently that their use would imperil the policies that limit the right of appeal,
particularly the final judgment rule, and the concern that the writs not become a form
of open-ended discretionary review for orders not appealable as of right.”). Defendant
clearly has an adequate remedy at law. For this reason, and because the magistrate
court properly exercised its jurisdiction, we conclude that the district court improperly
issued the writ of prohibition.

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CONCLUSION
{27} 	Based on the foregoing, we reverse the district court’s order granting the writ
of prohibition. We also reverse the magistrate court’s order dismissing all charges
against Defendant as a result of the district court’s order on the writ of prohibition,
and we remand with instructions that the magistrate court reinstate all charges against
Defendant. Defendant may appeal the magistrate court’s determinations regarding the
validity of the initial complaint and the statute of limitations upon entry of a final,
appealable order or judgment by the magistrate court.
{28} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
JONATHAN B. SUTIN, Judge