Opinion
No. 0-80-510.
April 13, 1981.
An appeal from the District Court of Tulsa County; Robert Frank, Judge.
The State of Oklahoma, appellant, has appealed to this Court on a motion to quash the information in the District Court of Tulsa County, Case No. TR-79-6806. DISMISSED.
S.M. Fallis, Jr., Dist. Atty., Ken Cunningham, Asst. Dist. Atty., Tulsa, for appellant.
William C. Kellough, Boone, Smith, Davis Minter, Tulsa, for appellee.
MEMORANDUM OPINION
The appellee was charged by information in the District Court, Tulsa County with the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. On the 29th day of May, 1980, the trial court, on its own motion, dismissed the case for lack of subject matter jurisdiction. The court found that because the accused was a minor at the time of the offense, the proper forum to initiate the action was in the Juvenile Division of the District Court.
The court's ruling was made prior to this Court's decision in Fanshier v. Oklahoma City, 620 P.2d 1347 (Okla. Cr. 1980), wherein we held proper an adult prosecution for a juvenile charged with D.U.I.
The State is now seeking to appeal the decision of the district court by attempting to construe the trial judge's order as one sustaining a motion to quash the information. Title 22 O.S.Supp. 1980 § 1053[ 22-1053]. We find the State's attempt to categorize the judge's action as a motion to quash to be improper.
Section 1053 provides that:
"Appeals to the Court of Criminal Appeals may be taken by the State or a municipality in the following cases and no other:
1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
2. Upon an order of the court arresting the judgment.
3. Upon a question reserved by the state or a municipality." [emphasis added]
An order by the trial court, on its own motion, dismissing an action is authorized by 22 O.S. 1971 § 815[ 22-815]. An order issued under the authority of the above section is not a bar to a subsequent prosecution for the same offense. See 22 O.S. 1971 § 817[ 22-817]. The order is therefore not final and the State has no standing to appeal under 22 O.S.Supp. 1980 § 1053[ 22-1053], See State v. Gary, 594 P.2d 796 (Okla. Cr. 1979); State v. Robinson, 544 P.2d 545 (Okla. Cr. 1975).
Since the State is not barred from refiling the information we find this purported appeal be and the same is, hereby DISMISSED.
BRETT, P.J., and BUSSEY, J., concur.