Distinguished
Distinguished by STATE v. HUDSON, 2022 OK CR 28 (2022)
The analysis in Young is inapposite in this case because, unlike Section 504.1, the applicable statutes in that case dealing with demurrers were silent regarding whether their applications were limited to cases involving felonies.
The opinion
LUMPKIN, Presiding Judge,
specially concurring:
I concur in the Order of the Court. I write specially only to elaborate on why the State cannot further prosecute this particular action.
Rowell v. Smith, 534 P.2d 689 (Okl.Cr.1975), cited as authority for this bar, comes from a long line of cases making it clear further prosecution is barred, not because of any Jeopardy considerations, but because of statutory ones. The sustaining of a Demurrer to the indictment or information constitutes a statutory bar to another prosecution for the same offense unless it appears of record that the trial court at the time directed the case to be resubmitted or a new information to be filed. Section 508 of Title 22 of the OMahoma Statutes. In fact, as this Court stated in State v. Walton, 30 Okl.Cr. 416 , 236 P. 629, 632 (1925):
A judgment is the final consideration and determination of a court of competent jurisdiction on the matters submitted to it, and a judgment sustaining a demurrer under the statute is as far-reaching and conclusive as to the defendant’s liability for the crime charged as though it has been rendered upon a verdict of not guilty, where the court does not order a resubmission of the case, or direct that a new information be filed.
Id., 30 Okl.Cr. at 422 , 236 P. 629 . See also State v. Mazurek, 546 P.2d 1327, 1328-29 (Okl.Cr.1976), analyzing the applicable statutes; State v. Tyler, 82 Okl.Crim. 112, 118-19, 166 P.2d 1015 (1946) and cases cited therein; State v. Waldrep, 80 Okl.Crim. 230, *60 236-37, 158 P.2d 368 (1945) and cases cited therein.
In other words, since this Court has now held prosecutors enjoy the same advantages in appealing misdemeanors as they do in appealing felonies, prosecutors must also share the same limitations in misdemeanor as in felony cases.
It may seem somewhat unfair to preclude the State from further prosecution in a case simply because the judge erred in his interpretation of the law. However, the proper remedy is better addressed to the Legislature to change the applicable provisions of the law, rather than to this Court to ignore them.