City of Tulsa v. Ellicott

Full title: THE CITY OF TULSA, APPELLANT, v. RODERICK K. ELLICOTT, APPELLEE

Court: Court of Criminal Appeals of Oklahoma

Date published: Nov 10, 1981

636 P.2d 377 (Okla. Crim. App. 1981)

1981 OK CR 141

Opinion

No. 0-81-307.

November 10, 1981.

An appeal from the Municipal Court of the City of Tulsa; John Turner, Judge.

The City of Tulsa, appellant, has appealed a reserved question of law on the offense of Driving Under the Influence of Drugs from the Municipal Court of the City of Tulsa, Case No. 308554. DISMISSED.

Neal E. McNeill, City Atty., Jeffrey S. Wolfe, Asst. City Atty., City of Tulsa, Tulsa, for appellant.

J. Bradford Griffith, Tulsa, for appellee.

MEMORANDUM OPINION

CORNISH, Judge:

This is an attempt by the City of Tulsa to appeal on a reserved question of law in City of Tulsa Case No. 308554. The appellee, Roderick K. Ellicott, had been charged by Information with the misdemeanor of Driving Under the Influence of Drugs in violation of the Tulsa Traffic Code, Title 37, § 275B [37-275B]. The municipal court sustained a demurrer to the first Information, and then to a second and identical Information.

The basis for the court's rulings was that specific allegations of impermissible driving behavior must be made a part of the charging language of the Information. While it is clear that the Informations as filed were legally sufficient, we are compelled to dismiss this appeal by the City of Tulsa as it is not properly before this Court.

Title 22 O.S.Supp. 1980 § 1053[ 22-1053], permits an appeal on a reserved question of law following an order of the court which bars further prosecution for the offense alleged. The effect, however, of sustaining a demurrer to the Information in a misdemeanor case is not a bar to further prosecution. We have repeatedly held that 22 O.S. 1971 § 508[ 22-508], providing for the effect of finality when a demurrer to an Information is sustained applies only to felony charges, not to misdemeanors. State v. Stout, 90 Okla. Cr. 35, 210 P.2d 199 (1949), Ex Parte Dodson, 3 Okla. Cr. 514, 107 P. 450 (1910). Thus, an Information charging a misdemeanor may be filed more than once.

Therefore, the purported appeal by the City of Tulsa on a reserved question of law is therefore DISMISSED.

BRETT, P.J., and BUSSEY, J., concur.