STATE V. PACHECO, 1993-NMCA-033, 115
N.M. 325, 850 P.2d 1028 (Ct. App. 1993)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Daniel PACHECO, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1993-NMCA-033, 115 N.M. 325, 850 P.2d 1028
APPEAL FROM THE DISTRICT COURT OF
SOCORRO COUNTY. LESLIE C. SMITH, District Judge
Tom Udall, Atty. Gen., Anthony Tupler,
Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Don Klein, Jr., Socorro, for
defendant-appellant.
Alarid, Judge. Apodaca, J., concurs.
Donnelly, J., specially concurring.
{1} Defendant appeals the
trial court order disqualifying his counsel. We hold that this order is not a
final, appealable order, and dismiss the appeal.
{2} Defendant was one of a
number of defendants who were charged with false voting in November 1990.
Eleven of these defendants were represented by attorney Don Klein. When a
hearing was called in November 1991, neither counsel nor all but one of his
clients was present. The district attorney argued to the court that defense
counsel should be disqualified because he was causing delays in the cases.
Counsel eventually arrived, eight minutes after the hearing commenced, and was
asked for an explanation. Counsel argued only that he had difficulty in
calendaring these matters. The trial court disqualified counsel from
representing all the defendants in these cases. The court found that the delay
in the cases was the fault of defendants through counsel. Defendant appealed
the order disqualifying his counsel.
{3} Every aggrieved party has
the right to one appeal; however, appellate jurisdiction shall be exercised as
provided by law. N.M. Const. art. VI, §§ 2, 29 (Repl.Pamp.1992). The phrase
"provided by law" means "'provided by statutes.'"
State
v. Watson, 82 N.M. 769, 772,
487 P.2d 197, 200 (Ct.App.1971). A criminal
defendant has the right of appeal "from the entry of any final
judgment." NMSA 1978, §
39-3-3(A)(1) (Repl.Pamp.1991). "An order is
final if all issues of law and fact necessary to be determined have been
determined, and the case has been completely disposed of to the extent that the
court has power to dispose of it."
State v. Webb, 111 N.M. 78, 79,
801 P.2d 660, 661 (Ct.App.),
cert. quashed, 111 N.M. 164,
803 P.2d 253
(1990). Contrary to Defendant's assertion, finality is an important
prerequisite to the right to appeal in New Mexico. There are important policy
considerations underlying the finality rule, including avoiding piecemeal
appeals and facilitating speedy and orderly disposition of cases.
Kelly Inn
No. 102, Inc. v. Kapnison, 113 N.M. 231, 240,
824 P.2d 1033, 1042 (1992).
This second consideration is particularly important in criminal cases.
See
Flanagan v. United States, 465 U.S. 259, 264-65, 104 S. Ct. 1051, 1054, 79
L. Ed. 2d 288 (1984).
{4} In determining whether a
judgment is final, this Court must look to its substance and not its form.
See
Kelly Inn No. 102, 113 N.M. at 236, 824 P.2d at 1038. A key in determining
finality is the effect the judgment has upon the rights of the parties.
Id.
We do not believe that the disqualification of counsel is a final order.
Flanagan
v. United States. It does nothing but order that counsel may no longer
represent the client in a particular case. The disqualification does not
conclude the rights of the parties. In fact, the matters between the parties
continue.
{5} The fact that
disqualification of counsel implicates Defendant's constitutional right to
counsel does not make the order final and, thus, appealable. Defendant
{*327} does not have an absolute
constitutional right to counsel of his choice; he has the constitutional right
to be effectively represented by counsel.
State v. Maes, 100 N.M. 78,
82,
665 P.2d 1169, 1173 (Ct.App.1983). Here, there is no indication that
Defendant was denied his right to counsel. Therefore, we cannot say at this
time that the disqualification had any effect on the rights of Defendant. We
think a disqualification of counsel is no different than the denial of a motion
to suppress evidence, which also may implicate a defendant's constitutional
rights. The denial of a motion to suppress evidence is not appealable.
State
v. Garcia, 91 N.M. 131,
571 P.2d 123 (Ct.App.1977). Likewise, the denial of
a motion to dismiss on the grounds of double jeopardy is not appealable as a
final order.
State v. Mestas, 93 N.M. 765, 767,
605 P.2d 1164, 1166
(Ct.App.1980). More particularly, the United States Supreme Court has held that
orders disqualifying counsel are not immediately appealable under the
collateral-order exception to the final judgment rule.
Flanagan, 465
U.S. at 270, 104 S. Ct. at 1057.
{6} The order disqualifying
counsel is not a final, appealable order. Therefore, this Court has no
jurisdiction to hear the appeal and the appeal is dismissed.
DONNELLY, Judge (specially concurring).
{8} I concur in the result
reached by the majority determining that an order of the trial court
disqualifying Defendant's retained counsel in a criminal proceeding does not
constitute a final appealable order within the contemplation of NMSA 1978,
Section
39-3-3(A)(1) (Repl.Pamp.1991), and SCRA 1986, 12-201 (Repl.1992). I
write separately, however, to point out that although our decision here is
grounded upon the rationale applied by the United States Supreme Court in
Flanagan
v. United States, 465 U.S. 259, 268-69, 104 S. Ct. 1051, 1056, 79 L. Ed. 2d
288 (1984), determining that an order disqualifying counsel is a collateral
order which fails to qualify as a final appealable order, nevertheless, in New
Mexico, by constitutional provision, statute, and Supreme Court rule, a party
may seek immediate review of such order by extraordinary writ or writ of error.
See N.M. Const. art. VI, § 3 (Repl.Pamp.1992); NMSA 1978, §
39-3-5
(Repl.Pamp.1991); SCRA 1986, 12-503, -504 (Repl.1992).
{9} In
Carrillo v. Rostro,
114 N.M. 607, 616-17 n. 8,
845 P.2d 130, 139-40 n. 8 (1992), our Supreme Court,
citing
Flanagan, noted that an order disqualifying counsel in a criminal
case may be reviewable, in an appropriate case, under the collateral order
doctrine by a writ of error.
See also State ex rel. Anaya v. Scarborough,
75 N.M. 702, 706,
410 P.2d 732, 734-35 (1966) (writ of prohibition may issue in
criminal proceeding);
State v. Roy, 40 N.M. 397, 420-22,
60 P.2d 646,
661-62 (1936) (discussing authority of Supreme Court to issue writ of
superintending control).
{10} Although the basis for
dismissal of Defendant's appeal here does not reach Defendant's challenge to
the propriety of the order of disqualification, an order disqualifying
Defendant's counsel of choice is a drastic remedy which should be employed only
after the trial court weighs the rights and interests involved and when less
severe sanctions or alternatives are found to be inadequate.
See Alexander
v. Superior Court, 141 Ariz. 157, 161, 685 P.2d 1309, 1313 (1984) (en
banc);
In re Ellis, 822 S.W.2d 602, 605 (Tenn.Ct.App.1991);
Ussery v.
Gray, 804 S.W.2d 232, 236 (Tex.Ct.App.1991);
see also United States v.
Diozzi, 807 F.2d 10, 16 (1st Cir.1986) (burden is on prosecution to
demonstrate that infringement on the defendant's choice of counsel is
justified);
United Nuclear Corp. v. General Atomic Co., 96 N.M. 155,
244,
629 P.2d 231, 320 (1980) (even violation of professional ethics will not
automatically result in disqualification of counsel),
cert. denied, 451
U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981);
Zepeda v. Superior
Court, 7 Cal.App.4th 829, 9 Cal.Rptr.2d 261, 263 (1992) (court's power to
disrupt
{*328} relationship between
attorney and client is narrow);
Anaya v. People, 764 P.2d 779, 781-83
(Colo.1988) (en banc) (declining to adopt harmless error standard of review
where order of disqualification of counsel is found to have been erroneously
entered).
{11} Since the right to be
represented in a criminal case is of constitutional dimension,
United States
v. Mendoza-Salgado, 964 F.2d 993, 1015 (10th Cir.1992), prior to
disqualifying an attorney, the trial court must balance a defendant's interest
in being represented by counsel of his choosing, the public interest in the
effective administration of justice, and the basic concepts of fundamental
fairness.
See United States v. Agosto, 675 F.2d 965, 970 (8th Cir.1982),
modified on other grounds by Flanagan, 465 U.S. 259, 104 S. Ct. 1051, 79
L. Ed. 2d 288;
United States v. Rogers, 471 F. Supp. 847, 853
(E.D.N.Y.1979);
People v. Brady, 275 Cal.App.2d 984, 80 Cal.Rptr. 418,
423 (1969).
{12} In the instant case, the
order of disqualification which is challenged on appeal does not constitute a
final appealable order, nor does it satisfy the criteria of a valid
interlocutory appeal, and Defendant did not seek to test the propriety of the
trial court's order by applying for an extraordinary writ or writ of error.