District, Utah County The Honorable Judge Claudia Laycock No.
Appeal of Interlocutory Order
D. Reyes, Att'y Gen., Tera J. Peterson, Asst. Solic.
Gen., Salt Lake City, Christine Scott, Provo, for appellee
S. Baron, Salt Lake City, for appellant
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Justice Petersen joined.
1 The State has charged Miguel Hernandez with aggravated
sexual abuse of a minor. Hernandez subpoenaed his alleged
victim to testify at his preliminary hearing. The district
court quashed the subpoena and bound Hernandez over for
trial. Hernandez appeals the decision to quash the subpoena,
but not the district court's determination that probable
cause existed for him to face trial. Hernandez's gambit
creates a procedural quandary. The decision Hernandez appeals
has been mooted by the subsequent bindover. And we lack
jurisdiction to consider the decision Hernandez has not
appealed. For these reasons, we must dismiss this appeal and
await another opportunity to answer the question we granted
interlocutory review to address.
2 The facts necessary to understand our disposition of this
matter are simple and few. The State charged Hernandez with
ten counts of aggravated sexual abuse of a minor. Hernandez
sought to subpoena the alleged victim (Victim) to testify at
the preliminary hearing. The State moved to quash that subpoena,
arguing that calling the witness would violate her
constitutional rights, and would "eviscerate" Utah
Rule of Evidence 1102 and Utah Rule of Criminal Procedure
15.5. The court quashed the subpoena. Hernandez requested a
stay so he could appeal that decision. The district court
denied the stay. The court held the preliminary hearing that
day and bound Hernandez over for trial.
3 Hernandez sought interlocutory appeal of the order quashing
the subpoena, but not the bindover. He "petition[ed]
this [c]ourt for permission to appeal from an order entered .
. . granting the State's Motion to Quash the Subpoena
served by the Defendant on the alleged child victim."
Hernandez attached only the order quashing the subpoena, and
asked "this Court [to] order the trial court to enforce
his subpoena of the alleged victim and to reopen the
preliminary hearing to permit [Hernandez] to call [Victim] as
4 In its briefing opposing interlocutory review, the State
argued that the district court's decision to bind
Hernandez over for trial had mooted its prior decision to
quash the subpoena. We granted the petition for interlocutory
appeal, but asked the parties to address the State's
concerns. We instructed:
Recently, this Court granted the petition for interlocutory
appeal in this case. In its response, the State asserted the
petition is moot because Petitioner was bound over and did
not file a motion to quash. In their briefing on the merits
the parties are requested to address that contention and the
Petitioner's assertion that a district court may reopen a
preliminary hearing after a defendant has been bound over.
5 Hernandez asserted that the case was not moot because if
the court reopened the preliminary hearing, the
"requested relief will affect the defendant's
rights." The State reworked Hernandez's argument for
him, arguing that although "not expressly cast in these
terms, [Hernandez] essentially asserts that he had a right to
discover the child victim's testimony by forcing her to
testify at the preliminary hearing . ...