State v. Lowe

Mar 9, 1981
No. O-79-557
Reporters:
, ,
Before:
Bussey

OPINION

BUSSEY, Judge:

The State appeals to this Court under Rule VI of the rules of this Court from *443an order of the District Court of Lincoln County affirming an order of the magistrate in Case No. CRF-7946 granting a motion to quash, or demurrer to the information, in that case on the ground of impermissible joinder of offenses in a single information, in violation of 22 O.S.1971, § 404. This holding conflicts with the previously expressed view of this Court that § 404 was repealed by implication upon enactment of 22 O.S.1971, §§ 436 and 440. See Dodson v. State, 562 P.2d 916 (Okl.Cr.1977) (Brett, J., specially concurring); and Phelps v. State, 598 P.2d 254 (Okl.Cr.1979). Appellee urges the reexamination of the Dodson holding by comparing 22 O.S.1971, §§ 436 et seq. to similar federal rules of criminal procedure. However, we are not persuaded that the Dodson rule should be re-examined. We reaffirm the view expressed therein. The rulings of the trial court and magistrate were in error.

Moreover, the proper method for challenging alleged prejudicial joinder under § 436 and Dodson is by application under 22 O.S.1971, § 439, rather than demurrer. Other arguments urged by appel-lee in support of the orders seem predicated on a characterization of the magistrate’s action as a severance due to prejudicial joinder. However, due to the lower courts’ reliance on § 404 in violation of Dodson, and due to the treatment of the issue in those courts as a Rule VI challenge to the granting of a demurrer or motion to quash the information, we will also deal with the case in that posture, and remand without prejudice to a proper application for relief from prejudicial joinder. The magistrate or trial court may then consider the issue apart from an erroneous reliance on Section 404.

BRETT, P. J., and CORNISH, J., concur.