State v. Hovis ( 1997 )

LANE, Judge,

dissents:

I dissent. In so doing, however, I do not disagree with the order when it finds that a judge who heard the preliminary is not precluded from taking the plea as long as his judicial position gives him that authority. However, I do not think that a plea can be taken while the preliminary is in progress unless the record indicates an intelligent and informed waiver of the preliminary examination. This Court has doggedly held to the old concepts of a multi-tiered court system when it deals with criminal procedure. In State v. Gorelick, 746 P.2d 677, 678 (Okl.Cr.1987), we stated “... this Court finds that the examining magistrate in this case does not have authority to accept the plea of the defendant prior to the conclusion of that hearing (preliminary examination)”. Further, in State v. Benson, 661 P.2d 908, 909 (Okl.Cr.1983), we said:

Generally speaking, the duties of a Magistrate are to preside over and conduct the preliminary examination, and determine if a crime has been committed and if there is probable cause to hold the defendant for trial. Respondent Benson, acting as a Magistrate, does not possess the authority vested in a district judge after the defendant has been bound over or “held” for trial.

With this language we determined that a magistrate did not have the power to order discovery during the preliminary and before bind over. That power was reserved to a proper judge to exercise after the magistrate was finished. This premise is reinforced by 22 O.S.1991 § 470 which requires the arraignment or proceeding for entering a plea to be held within 30 days after the date of the bind over order.

Because of this, I do not think that any judge can accept a plea until there has been a proper bind over. In the current case, the record indicates the magistrate was in mid-sentence of announcing his finding when he was interrupted by defense counsel with the statement that the defendant wanted to enter a plea. The order does not indicate that the defendant was ever bound over for plea and trial. In fact, the judge makes a point about his still having jurisdiction because he has not yet bound the defendant over.