Following a preliminary hearing, the defendant-respondent, Robert Molinelli, was held to answer in district court on the charge of delivery of a controlled substance, marijuana, in violation of I.C. § 37-2732(a)(1)(B). An information so charging him was filed in district court. Pursuant to the provisions of I.C. § 19-815A, Molinelli moved the court to dismiss or in the alternative to reduce the charge to possession of a controlled substance, similar to the procedure invoked in Carey v. State,
The only appeal taken is from the order of September 22, 1981, which reduced the charge against Molinelli. Specifically, no appeal was taken from the order withholding judgment, which order was entered on October 23, some six days before the amended notice of appeal was filed.
A threshold issue is whether the district court’s order is appealable to this Court. In its Notice of Appeal and Amended Notice of Appeal the State asserts a right to appeal pursuant to I.A.R. 11(c)(3) and (6). However, in its brief on appeal, the State concedes that “it is difficult to neatly categorize the action [taken by the district court] within one of the subsections of Rule 11,1.A.R.” and thus, the State requests this Court “to exercise its plenary powers, or in the alternative, treat the appeal as a request for a writ of review.” Appellant’s Brief, p. 7. Although this Court has held
I.A.R. 11(c)(6) provides an appeal as a matter of right in criminal proceedings from “[a]ny order made after judgment affecting the substantial rights of the defendant or the state.” However, as noted, the State concedes that the order in this case does not fall within the literal language of the rule. And, where the State did not avail itself of the right to appeal from the order withholding judgment, we will not bend the facts to hold that the appeal is proper under I.A.R. 11(c)(6). Recently in State v. Dennard,
I.A.R. 11(c)(3) provides an appeal as a matter of right in a criminal proceeding from “[a]n order granting a motion to dismiss an information or complaint.” In this case, the district court did not grant Molinelli’s motion to dismiss the information, but simply reduced the charge against him. The State argues that this reduction was “in the nature of the dismissal of the information as filed by the prosecuting attorney,” and thus that “the court’s action is appealable as a matter of right pursuant to Rule 11(e)(3), I.A.R.” Appellant’s Brief, pp. 7-8. We do not agree. The district court’s order clearly does not fall within the literal language of the Rule, and applying the reasoning set forth in Dennard, supra, we decline to so construe the Rule simply to give the State a right of appeal under these circumstances. See State v. Sanchez,
It is argued that although the applicable rules do not provide the State the right to appeal the order in question, this court, by virtue of article 5, § 9 of the Idaho Constitution should exercise its plenary power to hear this appeal regardless of its non-appealability. We decline to do so. See, State v. Dennard, supra; State v. Zarate, supra; State v. Daugherty,
Similarly, we decline to treat this appeal as a petition for a writ of review, I.C. § 7-201. See I.A.R. 43 (“Special writs shall issue only upon petitions verified by the party beneficially interested therein and upon briefs in support thereof....”). We note in passing that the order here in question was not entered ex parte; clearly, the court had jurisdiction to review the record made at the preliminary hearing and determine therefrom whether the evidence there submitted sustained the charge upon which the defendant was held to answer, and if not, upon some included offense. Carey v. State, supra, People v. Orin,
Appeal dismissed.
Notes
. I.C. § 19-2804 provided that “[a]n appeal may be taken by the state:
(5) From an order made after judgment affecting the substantial rights of the prosecution.”