Rufener v. Shaud , 98 Idaho 823 ( 1977 )

DUNLAP, District Judge (Ret.)

Defendants-appellants Ernest and Griselda Rufener were charged by criminal complaint with first degree murder, kidnapping, and embezzlement. Preliminary hearing was held and magistrate Granata bound the defendants over on involuntary manslaughter and false imprisonment rather than first degree murder or kidnapping. The prosecuting attorney filed an appropriate information against each defendant in district court, but later each information was dismissed by the district court on motion of the prosecuting attorney. The prosecuting attorney then refiled complaints alleging first degree murder and kidnapping. Respondent, Magistrate Russell C. Shaud, was assigned to the case on second filing. Defendants moved to dismiss the complaint, or in the alternative, to require the original magistrate to hear the case again; respondent denied the motion. Defendants then sought alternative writs of prohibition and/or mandate from the district court to require Judge Shaud to either dismiss the cases or re-assign them to the original magistrate. The district court denied the motions and defendants appeal. This case comes before this court as two appeals, which were consolidated by the Court.

Defendants assign error to the procedure of dismissing and refiling a charge once a defendant has been through preliminary hearing and probable cause has been found lacking on that charge.

This question was raised and disposed of in the recent case of Stockwell v. State, 98 Idaho 797, 573 P.2d 116 (1977), which held in substance that such a refiling is not prohibited unless done without good cause or in bad faith. The record in this case reflects neither and therefore we believe defendants’ claim in this respect to be without merit.

Defendants also assign error to the refusal of the district judge to order the preliminary hearing on the refiled charges to be held before Judge Granata. They cite as authority the Oklahoma cases of Chase v. State, Okl.Cr.App., 517 P.2d 1142 and Jones v. State, Okl.Cr.App., 481 P.2d 169. These cases do not persuade us that Idaho should adopt the rule that the same judge who heard the first preliminary hearing must hear the one on the refiled charge if he is still available. In this state judges are assigned through the administrative procedures of the Court and not selected by the parties.

The state contends that writs of mandate and prohibition are not available in this situation. We agree with the latter position and affirm.

Writs of mandate and prohibition are provided for by statute.¹ Each may be issued only when there is no plain, speedy and adequate remedy in the ordinary course of the law, I.C. §§ 7-303, and 7-402,² or when the court has no jurisdiction or exceeds its jurisdiction.

This court has held that

“A right of appeal is regarded as a plain, speedy and adequate remedy at law in the absence of a showing of exceptional circumstances or of the inadequacy of an appeal to protect existing rights.” Smith v. Young, 71 Idaho 31, 33, 225 P.2d 466, 468 (1950).

See also, Coeur d’Alene Turf Club Inc. v. Cogswell, 93 Idaho 324, 461 P.2d 107 (1969); Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). Nothing in this case precludes defendants from their normal right to appeal. Defendants contend that appeal is inadequate to prevent them from being subjected to the remainder of the criminal process and that the writ is necessary to prevent them from having to negotiate the second preliminary hearing and possible eventual trial. This court long ago recognized that “The adequacy of a remedy is not to be tested by the convenience or inconvenience of the parties to a particular case. If such a rule were to obtain, the law of appeals might as well be abrogated at once.” Willman v. District Court, 4 Idaho 11, 35 P. 692 (1894). There are no circumstances shown in this case to be exceptional nor is it shown that defendants will be subjected to any hardships over and above those ordinarily borne by a defendant in a criminal prosecution. Smith v. Young, supra. Either writ was consequently improper under the circumstances in this case.

The writ of prohibition additionally is available upon a showing that the body to be enjoined by the writ is in some manner in excess of its jurisdiction. I.C. § 7-401. The magistrate clearly had jurisdiction. I.C. § l-2208(3)(d).

Affirmed.

SHEPARD, J., concurs. DONALDSON, J., concurs in the result.

1 . I.C. § 7-302 provides for the issuance of writs of mandate:

“When and by what courts issued. — It may be issued by any court except a justice’s or probate court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and the enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.

I.C. § 7-401 defines the writ of prohibition:

“Definition. — The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.”

2 . I.C. § 7-303 provides:

“Absence of adequate remedy. — The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested.”

I.C. § 7-402 provides:

“When and how issued. — It may be issued by any court except probate or justice’s courts, to an inferior tribunal, or to a corporation, board or person in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit on the application of the person beneficially interested.”