J. G. J. v. State ex rel. Lamm

1980 OK CR 19, 609 P.2d 787, 1980 Okla. Crim. App. LEXIS 132

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 4, 1980
• Docket: No. H-80-143
• Status: Published

Opinion

ORDER GRANTING WRIT OF PROHIBITION

J. G. J., a male 17 years of age, was charged by preliminary information with Robbery With a Dangerous Weapon in Tulsa County District Court, Cases No. CRF-80-279 and CRF-80-280, and filed a motion to be certified as a child. A preliminary hearing was conducted by Special Magistrate Tony Graham at the conclusion of which, pursuant to 10 O.S.Supp.1979, § 1104.2, the judge entered an order certifying J. G. J. as a child. The State gave notice of intent to appeal to the District Court pursuant to the Rules of the Court of Criminal Appeals, 22 O.S.1971, ch. 18, App., § VI, and the hearing was scheduled to be heard before the Honorable Margaret Lamm. J. G. J. filed a petition styled Petition for Writ of Habeas Corpus, but alleging that the order certifying him as a child was not reviewable by the Honorable Margaret Lamm Under Section VI of the Court of Criminal Appeals, and praying that this Court direct Judge Lamm to dismiss the attempted appeal. We have assumed jurisdiction, stayed the proceedings before the Honorable Margaret Lamm, and, although styled an application for writ of habeas corpus, we will treat the application filed herein as. a petition for writ of prohibition.

The question before us is, may the State appeal under Section VI an order certifying a person under 10 O.S.Supp.1979, § 1104.2, ás a child? The question must be answered in the negative. The attempted appeal does not fall within any of the rulings or orders enumerated in Section VI.¹

IT IS THEREFORE the Order of this Court that the Honorable Margaret Lamm is prohibited from conducting any further proceedings under the attempted Section VI appeal, but said judge is authorized to DISMISS the attempted appeal. The Writ of Prohibition is, accordingly, GRANTED.

WITNESS OUR HANDS and the Seal of this Court, this 4th day of April, 1980.

TOM P. CORNISH, P. J. TOM BRETT, J. HEZ J. BUSSEY, J.

1 . Section VI provides as follows:

“The State of Oklahoma, by and through the District Attorney or Attorney General, shall have the right to appeal an adverse ruling, or order, of a magistrate sustaining a Motion to Suppress Evidence, Quashing an Information, Sustaining a Plea to the Jurisdiction or Demurrer to Information, or an Order Discharging Defendant at preliminary examination because of Insufficiency of the Evidence to establish either that a crime has been committed, or there is probable cause that the accused has committed a felony. . . ”