City of Tulsa v. Ellicott

1981 OK CR 141, 636 P.2d 377, 1981 Okla. Crim. App. LEXIS 302

Opinion

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. 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, 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, 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 Okl.Cr. 35, 210 P.2d 199 (1949), Ex Parte Dodson, 3 Okl.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.