Opinion
No. 12448.
November 22, 1977.
APPEAL FROM DISTRICT COURT, THIRD JUDICIAL DISTRICT, CANYON COUNTY, GILBERT C. NORRIS, J.
Wayne L. Kidwell, Atty. Gen., Susan P. Mauk, Asst. Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-appellant.
Mark L. Clark, of Kibler, Hamilton Clark, Nampa, for defendant-respondent.
This is an appeal by the state from the dismissal of an information against the defendant respondent on the ground that the defendant had been denied the right to a speedy trial.
The threshold issue is whether the district court's order dismissing the case is appealable to this Court. In State v. Berlin, 95 Idaho 225, 506 P.2d 122 (1973), we stated:
"The appellate jurisdiction of this Court, granted by Article 5, Section 9, of the Idaho Constitution, provides that, `The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof, . . .' The legislature, pursuant to its constitutional authority in Article 5, Section 13, to provide a proper system of appeals, has established a policy that the State of Idaho may only appeal adverse rulings of district courts in criminal matters under those limited circumstances set out in Section 19-2804, Idaho Code." 95 Idaho at 226-227, 506 P.2d at 123-124.
This case, as the state concedes, does not fall within any of the circumstances set forth in I.C. § 19-2804 in which the state may appeal an adverse ruling of the district court in a criminal matter. We are aware that by virtue of Art. 5, § 9, of the Idaho Constitution this Court has the plenary power to consider this appeal regardless of the limitations of I.C. § 19-2804. However, we do not exercise that discretionary power of review in this case. State v. Verlin, supra; State v. Maddock, 97 Idaho 610, 549 P.2d 269 (1976).
I.C. § 19-2804 was repealed effective July 1, 1977, and thereafter the appealability of an order dismissing an information for lack of a speedy trial, entered after that time, would be governed by Rule 11(C), I.A.R.
The appeal is dismissed.