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State v. Augustin M.3/5/2003
1. We also noted Carrillo's statement that an order satisfying the collateral order doctrine could be reviewed only pursuant to a writ of error and concluded that our Supreme Court did not adopt "the view of the United States Supreme Court that an order satisfying the collateral order doctrine is a `final decision.'" Apodaca, 1997-NMCA-051, 11. We stated: "At most, Carrillo would permit us to treat Child's notice of appeal as an application for a writ of error." Apodaca, 1997-NMCA-051, 11. However, because Carrillo did not consider Article VI, Section 2, we stated that, at least in a criminal case, "it remains to be decided whether Article VI, Section 2 provides an absolute right to appeal an order satisfying the collateral order doctrine." Apodaca, 1997-NMCA-051, 13.
We noted in Apodaca that in criminal cases a defendant has a right to appeal only from "the entry of any final judgment," see NMSA 1978, § 39-3-3(A)(1) (1972), whereas a civil appellant can appeal from "final judgments or decisions," causing uncertainty as to how our Supreme Court would apply the collateral order doctrine in criminal cases such as Apodaca. Apodaca, 1997-NMCA-051, 12. However, we chose not to address application of the collateral order doctrine to permit the Apodaca appeal. Id. 13. We chose instead to permit the appeal under Article VI, Section 2, relying for this determination on New Mexico Supreme Court cases permitting an immediate appeal by the State from an order granting a new trial in a criminal case. See State v. Griffin, 117 N.M. 745, 750, 877 P.2d 551, 556 (1994) (permitting the State to appeal, but stating "we limit an immediate appeal to an order in which it is claimed the grant of a new trial was based on an erroneous conclusion that prejudicial legal error occurred during the trial or that newly-discovered evidence warrants a new trial"); State v. Chavez, 98 N.M. 682, 683, 652 P.2d 232, 233 (1982) (permitting the State to appeal an order granting a new trial).
Although uncertain about the rationale of Griffin and Chavez in permitting the immediate appeal instead of requiring the State to await the conclusion of the new trial, we determined in Apodaca that the Griffin and Chavez "decisions compel granting a defendant the right to appeal an order denying a motion to dismiss on double jeopardy grounds." Apodaca, 1997-NMCA-051, 14-15. We also determined that the order denying the motion to dismiss on double jeopardy grounds "could not be remedied once the second trial ha taken place." Id. We acknowledged, as Child presently asserts, that " ome interests cannot be adequately protected if an appeal . . . must await the entry of judgment," and, in particular, that "a defendant's right not to be subjected to a second trial for the same offense could not be remedied once the second trial has taken place." Id. 15-16. We stated that " lthough Article VI, Section 2 speaks of the right to one appeal, more than one appeal may be necessary in a single case to serve the purpose of the constitutional provision." Id. 15.
Child additionally argues that Article VI, Section 2 adds a dimension that does not exist in federal collateral order doctrine jurisprudence. According to Child, our State constitutional right to appeal provides greater protection than does federal law when an order meets the requirements of the collateral order doctrine. Child's analysis for these arguments is that it would be anomalous for this Court, as in Carrillo, to permit review by writ of error based on the federal collateral order doctrine, when no federal constitutional right to appeal exists, yet to deny an appeal in state court where a constitutional right to appeal exists and when, if no appeal is allowed,
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