State ex rel. Edmondson v. Bass-Jones , 75 O.B.A.J. 625 ( 2004 )

ORDER DENYING RELIEF

¶ 1 Petitioner filed an application requesting this Court to assume jurisdiction and issue an extraordinary writ of prohibition in Oklahoma County District Court Case No. CF-2003-2026.

¶ 2 Petitioner argued Respondent's order granting a preliminary hearing to the defendants in the aforementioned District Court case is not supported by legal authority. Petitioner made such argument on the fact that the felony charges in the District Court case were brought by an Indictment issued by the Multi-County Grand Jury of Oklahoma, not upon the filing of an Information by the District Attorney. Thus, Petitioner claimed the defendants do not have a state constitutional right to receive a preliminary hearing because such right is conferred by statute, and the defendants did not comply with the statutory requirements, thereby forfeiting their right to a preliminary hearing.

¶ 3 This Court directed a Response from Respondent on November 18, 2008. Responses were filed on December 3, 2008. After a review of the pleadings filed in this case, 22 0.8.2001, § 524 and Stone v. Hope, 1971 OK CR 302, 488 P.2d 616, we find the statutory language is clear and unambiguous and specifically requires a written notice be filed in accordance with the statute prior to a defendant being eligible for a preliminary hearing on an indictment. A review of Stone and the jurisprudence set out in the Petitioner's Reply Brief reveal the Court in Stone was not addressing the ten (10) day written notice requirement of the statute, but the judicial problem of that time regarding magistrate shopping in preliminary hearings. Therefore, the judge in this case should not have automatically set a preliminary hearing conference, or a preliminary hearing. The judge's authority to set a preliminary hearing on a grand jury indictment is based solely on the statutory authorization. Absent the filing of the written request for a preliminary hearing, the judge should set an indictment for trial. However, based on the judge's actions, and the failure of the State to object, we find the doctrine of estoppel applies. The defendant has now filed a written request for preliminary hearing, outside the ten (10) day period. The failure to timely file is attributable to the action of the judge and the failure of the State to object. As such, the petition for extraordinary relief is DENIED. The stay of proceedings previously entered by this Court is hereby LIFTED, and the preliminary hearing on the indict, ment may proceed.

¶ 4 IT IS SO ORDERED.

¶ 5 Witness our hands and the Seal of this Court the 12th day of February, 2004.

Is) Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s) Steve Lile STEVE LILE, Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge, concurs and dissents in part.

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge, concurs in result only.