{1} The district court reversed the magistrate court’s order revoking Defendant’s probation and remanded the case to the magistrate court for a full hearing on the probation revocation. Defendant appeals, and we reverse. The district court erred in failing to conduct a de novo hearing on the revocation and in remanding for an additional hearing at the magistrate court level on this issue. We remand for a de novo hearing by the district court consistent with this opinion.
I. BACKGROUND
A. Proceedings in Magistrate Court
{2} Defendant was convicted of DWI, third offense, and was sentenced to 364 days of incarceration with 306 suspended, followed by a twenty-eight-day stay at a treatment facility, and then 364 days of supervised probation including an unspecified aftercare program. An aftercare contract was signed by Defendant and filed with the magistrate court specifying that Defendаnt would receive outpatient treatment from the Salvation Army Adult Rehabilitation Program (Salvation Army Program). After completing a large portion of the Salvation Army Program, Defendant was terminated. On November 20, 2008, Don Teel, the adult rehabilitation program residence manager for the Salvation Army Program, sent a letter addressed “To Whom it May Concern” indicating that on November 19, 2008, Defendant was terminated from the Salvation Army Program for non-compliance with the established program policy. The letter alleged violations including “[disrespecting staff[,] giving false statement implicating another beneficiary of misconduct[, and] giving false statement on conduct report write[-]up.” On the face of the letter, there is what appears to be a photocopied post-it note to “Ethan” from “Traci” indicating that Teel had died on Decembеr 27.
{3} Defendant’s probation was revoked in magistrate court on January 6, 2009, and he was sentenced to 265 days in jail. Defendant appealed the probation revocation to district court.
B. Proceedings in District Court
{4} At the initial hearing in district court held on February 17, 2009, Defendant argued that the magistrate court revoked his probation without an evidentiary basis and that he was denied a full hearing. The State did not have enough information to respond and requested the probation violation paperwork from Defendant. The court also requested the paperwork and requested that Defendant identify the issues on appeal.
{5} The next day, Defendant filed a motion to re-examine revocation of probation. He argued that his probation should not have been revoked because he did not violate any of the conditions of probation. He claimеd that his attendance in the Salvation Army Program was entirely voluntary and, as it was not ordered by the magistrate court, his premature termination from the program did not violate a condition of probation. Defendant also argued that there was insufficient evidence regarding his termination from the Salvation Army Program to establish a violation of his probation to a reasonable certainty. He stated his position that the оnly evidence introduced at the revocation hearing
{6} The district court conducted a hearing on March 2, 2009. The State concedеd that the only evidence supporting termination was Teel’s letter, which was hearsay. Although the State and district court determined that there had not been a full hearing in magistrate court, Defendant informed the court that he was not seeking a remand for another hearing because there was no evidence for the State to present. He further asserted that a remand was unwarranted because he was entitled to a new probation revocation hearing in district court because this was a de novo appeal. The State disagreed because there had yet to be a full hearing in magistrate court.
{7} The district court found that the propriety of the revocation was questionable because there appeared to be no admissible evidence to support the magistrate court’s findings. The district court also found thаt Defendant was not entitled to a de novo hearing on the probation revocation so it issued an order remanding to the magistrate court for a new hearing on the probation revocation. It orally indicated that the magistrate court should be instructed not to take hearsay into account in redetermining whether Defendant violated his probation, but there is nothing in the order so stating.
{8} In its order of remand and mandate, the district court included findings that: (1) Defendant was not entitled to a de novo hearing on the revocation of probation because a revocation hearing is not a trial; (2) the parties stipulated that revocation was based on Teel’s letter of November 20, 2008, and that Teel had died prior to the hearing; (3) the parties’ stipulations call into question the propriety of the evidence used at the revocаtion hearing; and (4) there appeared to be no appropriate evidence to support the revocation.
{9} Defendant appealed to this Court, and the parties were specifically instructed to brief two questions: (1) when is an order on probation revocation subject to de novo review and when is such an order subject to on-record review, and (2) which magistrate and/or district court rules apply to appeals of probation revocation orders.
II. DISCUSSION
A. Finality
{10} The State contends that Defendant’s appeal is improper because the order remanding to the magistrate court is not a final order for purposes of appeal. We disagree.
{11} “In general, the right to appeal is restricted to final judgments and decisions.” High Ridge Hinkle Joint Venture v. City of Albuquerque,
{12} The State notes that the district court’s order does not address sentencing, and the State asserts that the district court remanded the case to the magistrate court so that Defendant could be afforded a full hearing in accordance with Rule 6-802(C) NMRA and NMSA 1978, Section 31-21-15(B) (1989). It then argues that the district court’s order is not sufficiently final because Defendant is awaiting a new hеaring consistent with the order of remand, and the outcome of the State’s motion to revoke probation has yet to
{13} “Ordinarily, an order remanding a case for further proceedings in a lower court is not considered ‘final’ for purposes of appeal.” State v. Ahasteen,
{14} Assuming that Defendant is correct and that he is entitled to a de novo hearing in district court — an issue addressed in the following section of this opinion — then the order remanding for a new hearing is in error, and Defendant should not be subject to another revocation hearing at the magistrate court level. See generally id. ¶¶ 12-20 (holding that the district court’s order refusing to exercise jurisdiction and remanding to the magistrate court for trial was sufficiently final for purposes of appeal and then determining that the remand was in error); cf. Collado v. N.M. Motor Vehicle Div.,
B. Merits
{15} The question of whether Defendant is entitled to a de novo hearing in district court on the State’s motion to revoke his probation requires us to interpret and apply Rule 6-802(D) and, as such, presents a question of law that we review de novo. State v. Foster,
The decision of the court to revoke probation may be appealed to the district court as otherwise provided in these rules. The only issue the district court will address on appeal will be the propriety of the revocation of probation. The district court shall not modify the sentence of the magistrate court.
The State acknowledges that multiple authorities provide that appeals from magistrate court are subject to de novo review, except as otherwise provided by law. See, e.g., N.M. Const. art. VI, § 27 (“Appeals shall be allowed in all cases from the final judgments and decisions of ... inferior courts to the district courts, and in all such appeals, trial shаll be had de novo unless otherwise provided by law.”); NMSA 1978, § 39-3-1 (1955) (“All appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law.”); NMSA 1978, § 35-13-2(A) (1996) (“Appeals from the magistrate courts shall be tried de novo in the district court.”); Rule 6-703(J) NMRA (“Trials upon appeals from the magistrate court to the district court shall be de novo.”). However, the State argues thаt this authority should be interpreted as only applying to de novo trials as opposed to special proceedings such as a probation revocation hearing which, the State contends, may only be reviewed for errors of law. We reject this contention.
{17} First, there is nothing in the language of Rule 6-802(D) or any other rule or
{18} Likewise, we are not convinced that the inability of the district court to alter the sentence or the limitation on its review to the propriety of the revocation impacts Defendant’s right to a de novo hearing on the propriety of the revocation. See Rule 6-802(C) (outlining the magistrate court’s probation and sentencing options once a probation violation is established); Rule 6-802(D) (stating that when reviewing a probation revocation on appeal, the district court may not modify the sentence of the magistrate court). To the contrary, we interpret the limitation as merely reflecting that the district court’s review of the propriety of a probation revocation does not warrant the additional exercise of its discretion to determine the effect of that revocation on sentencing. It recognizes that, unless the district court disagrees with the magistrate court’s revocation decision, the latter court’s decision as to the effect of revocation on sentencing should be allowed to stand. See State v. Gallegos,
{19} Although this case presents an issue of first impression in that it requires us to interpret Rule 6-802(D), we are guided by previous cases establishing that when a court is not of record, de novo review is necessary. For example, although the State contends that this Court’s opinion in Foster supports its position, we disagree. In Foster, we noted that “[wjhether a lower court is of record determines whether a trial will be de novo.” Foster,
{20} We further note that Foster did not concern a de novo trial. Instead, the defendant was convicted in magistrate court, appealed to district court, and filed a pretrial motion claiming that the trial in magistrate court had violated double jeopardy. Id. ¶ 4. The state argued that the district court should not be allowed to consider the defendant’s claim of double jeopardy because, given that trial was de novo, it was as if the magistrate court trial never existed. Id. ¶ 10. This Court disagrеed and held that a de novo appeal was an appropriate avenue for the defendant to assert his double jeopardy claim. Id.
{21} In Foster, we recognized the broad appellate jurisdiction of district courts to conduct trials de novo and, “when called upon, [to] hear pretrial motions in de novo appeals.” Id. ¶ 11; see State v. Hicks,
{22} A similar issue, albeit with the state taking a contrary position, was considered by this Court in Hicks. In Hicks, the metropolitan court dismissed the сomplaint filed against the defendant because the complaint was not filed in a timely manner, and the district court affirmed the dismissal, finding that the metropolitan court did not abuse its discretion.
{23} In Hicks, this Court held that, because criminal actions in metropolitan court were not of record at that time, “the right of appeal in such actions is the right to a trial or hearing de novo in the district court[, and] [i]n de novo proceedings, the district court is not in any way bound by the proceedings in the lower court.” Id. (citation omitted). We held that the district court was required to independently determine whether the requirements of the metropolitan court were complied with and thus remanded the case to district court to make such a determination. Id. Compare State v. Spillman,
{24} In this case, because the probation revocation in magistrate court was not of record, Defendant was entitled to a hearing de novo in the district court in which the court was in no way “bound by the proceedings in the lower court.” Hicks,
{25} While acknowledging that the magistrate court is not a court of record, the State argues that a sufficient “record can be made by requiring the party filing an appeal in district court to request that the magistrate court enter findings of fact and conclusions of law to be incorporated in [its] judgment and sentence orders following probation revocation hearings.” The propriety of the revocation proceeding could then be determined from the findings and conclusions and, if not, remand would be the proper remedy. The State suggests that this Court could “mandate as a matter of procedure that the magistrate courts make such findings and conclusions as part of the record on appeal,” and probation revocation orders issued by magistrate courts could be amended to reflect that on appeal defendants are not entitled to de novo review.
{26} We construe these procedures and requirements suggested by the State as a request for a change in the Rules of Criminal Procedure because there are no current magistrate or district court rules mandating such procedures and requirements. See generally Rule 6-703 (setting forth the requirements for an appeal from magistrate court to district court). Specifically, there is nothing in the current rules requiring the record on appeal to contain findings and conclusions when a magistrate court revokes a probationer’s probation. See Rule 6-703(F) (setting forth the contents of the record in an appeal from magistrate court). Any development or change in this area should be directed to our Supreme Court, our state’s rule-making authority. See Pub. Serv. Co. of N.M. v. Lyons,
{27} Finally, we note that the State is correct that a probation revocation hearing is not a trial, that a defendant is not entitled to all of the rights afforded during a criminal prosecution, and that the State’s burden of proof is different for a probation revocation proceeding. See State v. Phillips,
III. CONCLUSION
{28} Based upon our holding that the district court erroneously remanded to give the magistrate court another opportunity to conduct a full hearing, we reverse and remand so that the district court can conduct a de novo hearing on the revocation.
{29} IT IS SO ORDERED.