Opinion
No. 65877.
October 19, 1979.
The writ application is granted in part, denied in part. Judge's order dismissing the charges is vacated. The judge of the Twelfth Judicial District Court exceeded his powers in ordering the charges against the defendant dismissed. When the court in a preliminary examination finds that the defendant is being held without probable cause the court shall order that the defendant be released from custody or bail. La.C.Cr.P. Art. 296. The court may not order the charges dismissed; this power belongs to the district attorney. La.C.Cr.P. Art. 691, State v. Broussard, 217 La. 90, 46 So.2d 48 (La. 1975). See also State v. Sterling, 376 So.2d 103 (La. 1979).
The District Court did not abuse its discretion in finding that the State failed to present a prima facie case against the defendant in the preliminary examination. This finding, of course, does not prevent the district attorney from proceeding to trial on the Bill of Information filed against the defendant. La.C.Cr.P. Art. 386.
WRIT APPLICATION GRANTED IN PART; DENIED IN PART; REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.