After Appellants appealed their dismissals to the Board, Attorney General Balderas challenged the Board’s subject matter jurisdiction, arguing that Appellants are not employees covered by the Personnel Act. Appellants contend that Attorney General Balderas has the burden of demonstrating a lack of subject matter jurisdiction because he challenged the Board’s jurisdiction and cite State v. Begay, 1987-NMCA-025, ¶ 6, 105 N.M. 498, 734 P.2d 278 ("Demonstrating a lack of jurisdiction is [the] defendant’s burden."). We disagree.
In the complaint, Plaintiff states that the complained of "behavior [wa]s plead, alternatively, as within and without the scope of employment[.]" {14} More importantly given the burden of proof, Defendants' answer brief does no better in assisting the Court to resolve this issue. See State v. Begay, 1987-NMCA-025, ¶ 6, 105 N.M. 498, 734 P.2d 278 ("Demonstrating a lack of jurisdiction is [the] defendant's burden."). Defendants argue that "each [Defendant] was employed by the Pueblo in a managerial capacity and that the first two were acting in that capacity when . . . Plaintiff [was] discharged.")
As the party who challenged the jurisdiction of the district court, Defendant has the burden of demonstrating a lack of jurisdiction. State v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct.App.1987); State v. Cutnose, 87 N.M. 307, 309, 532 P.2d 896, 898 (Ct.App.1974). B. Location of Accident
As the party who challenged the jurisdiction of the district court, Defendant has the burden of demonstrating a lack of jurisdiction. State v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct. App. 1987); State v. Cutnose, 87 N.M. 307, 309, 532 P.2d 896, 898 (Ct. App. 1974). B. Location of Accident
Jurisdiction over the subject matter of a case is an issue that can be raised at any time by a criminal defendant. State v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct.App. 1987). We must dismiss the district court's order of revocation if it had no jurisdiction to issue such an order.
A challenge to the subject matter jurisdiction of the district court may be raised at any time, including on appeal.See State v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct.App. 1987). Defendant's argument, however, has nothing to do with the district court's jurisdiction.
However, the rule is otherwise when jurisdiction is involved."), nor conferred jurisdiction on the district court, see Chavez v. County of Valencia, 86 N.M. 205, 209, 521 P.2d 1154, 1158 (1974); State v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct.App. 1987) (subject matter jurisdiction may be raised at any time), when it stipulated to the jurisdiction of the district court. Although neither party raises the issue of sovereign immunity on appeal, we nevertheless note that, even if we found that the Tribe waived its sovereign immunity, our jurisdictional analysis still would compel reversal of the district court on jurisdictional grounds.
The state also argues merger does not apply because the evidence establishes defendant first took the victim's purse and then threw her to the ground. See State v. Begay, 105 N.M. 498, 734 P.2d 278 (Ct.App. 1987) (no merger because one offense could be committed without committing the other and the two offenses involved required proof of different facts); State v. Williams, 105 N.M. 214, 730 P.2d 1196 (Ct.App. 1986) (no merger because different evidence required to prove the two offenses); State v. Muise, 103 N.M. 382, 707 P.2d 1192 (Ct. App. 1985) (different evidence used to prove the two offenses); State v. Singleton, 102 N.M. 66, 691 P.2d 67 (Ct.App. 1984) (same). However, the evidence in this case shows defendant committed the robbery and the aggravated battery by one act.