State v. Cosentino

Supreme Court of Arkansas

State v. Cosentino

477 S.W.2d 460, 252 Ark. 68, 1972 Ark. LEXIS 1552

Supreme Court of Arkansas·Decided March 13, 1972·No. 5690·Published·Cited by 2 cases

Opinions

George Rose Smith, Justice.

The appellee was charged by information with the unlawful possession of marihuana, an offense described in the information as a felony. The appellee demurred to the information, on the ground that the asserted offense is only a misdemeanor under Article IV, § 1, of Act 590 of 1971, the Uniform Controlled Substances Act. Ark. Stat. Ann. § 82-2617 (Supp. 1971). This appeal is from an order sustaining the demurrer.

The trial court correctly held the offense to be a misdemeanor, for the reasons stated in Bennett v. State, also decided today. 252 Ark. 128, 477 S.W. 2d 497. That holding, however, requires that the present appeal be dismissed, for in a misdemeanor case the State cannot appeal from an interlocutory order, such as the one sustaining a demurrer. State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614 (1960). Without deciding the point, we call attention to the possibility that the State’s privilege of appealing from interlocutory orders in felony cases, under Ark. Stat. Ann. § 43-2706 (Repl. 1964), may have been abrogated by §§ 13 and 14 of Act 333 of 1971. See Ark. Stat. Ann. §§ 43-2706 and -2720.1 (Supp. 1971).

Appeal dismissed.

Fogleman, J., concurs:

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George Rose Smith, Justice.

The appellee was charged by information with the unlawful possession of marihuana, an offense described in the information as a felony. The appellee demurred to the information, on the ground that the asserted offense is only a misdemeanor under Article IV, § 1, of Act 590 of 1971, the Uniform Controlled Substances Act. Ark. Stat. Ann. § 82-2617 (Supp. 1971). This appeal is from an order sustaining the demurrer.

The trial court correctly held the offense to be a misdemeanor, for the reasons stated in Bennett v. State, also decided today. 252 Ark. 128, 477 S.W. 2d 497. That holding, however, requires that the present appeal be dismissed, for in a misdemeanor case the State cannot appeal from an interlocutory order, such as the one sustaining a demurrer. State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614 (1960). Without deciding the point, we call attention to the possibility that the State’s privilege of appealing from interlocutory orders in felony cases, under Ark. Stat. Ann. § 43-2706 (Repl. 1964), may have been abrogated by §§ 13 and 14 of Act 333 of 1971. See Ark. Stat. Ann. §§ 43-2706 and -2720.1 (Supp. 1971).

Appeal dismissed.

Fogleman, J., concurs:

State v. Cosentino, 477 S.W.2d 460, 252 Ark. 68, 1972 Ark. LEXIS 1552 (Ark. 1972).

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