dissenting.
Respectfully, I dissent.
We should affirm the Order of the Court of Appeals denying the Commonwealth’s Motion for Intermediate Relief for two reasons, one procedural and one substantive.
Procedurally, the interlocutory appeals statute, KRS 22A.020(4), is erroneously applied here. It is limited to matters “vital to the Commonwealth’s case (Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978)).” The issue here does not fit this description because the dismissal of the charges in Counts 3-16 has no effect on the trial of the remaining Counts, 1 and 2. Although the trial court’s Order used ambiguous language, stating both dismissal and consolidation, the Commonwealth is under no obligation at the forthcoming trial to prove any more than the April incident for conviction on the two remaining counts, the Class D felony charged under KRS 205.850 and a “scheme or plan” to defraud Class C felony charged under KRS 194.505.
There is no reason for an interlocutory appeal because the defendant may still be tried on the remaining counts now dismissed by new indictment if we were to hold (as we have) on Certification of Law that they were improperly dismissed.
The interlocutory appeal statute is directed at orders related to trial of the offense charged, not reinstatement of charges dismissed.
Although I would not agree that this is a proper case for Writ of Prohibition, if the Commonwealth believes, as it claims, that dismissal was irreparable injury, it should have proceeded by seeking a Writ of Prohibition against the trial court’s Order of Dismissal. The trial court was not proceeding outside of its jurisdiction, but such a Writ, not the interlocutory appeal statute, is also an appropriate remedy where a trial court proceeding within its jurisdiction causes irreparable injury, and there is no adequate, remedy by appeal. Crawley v. Kunzman, Ky., 585 S.W.2d 387 (1979); *919Buise v. Barklage, 314 Ky. 308, 234 S.W.2d 959 (1950).
The substantive issue in this case is whether the dismissal was proper. Since we choose to address it, on the record before us we should affirm the trial court. The statutory language in KRS 205.990(5), which is the heart of this issue, includes “or in any combination or aggregation thereof.” This suggests that, where multiple acts occur in furtherance of a single scheme, the statute intends to punish a “course of conduct” rather than individual acts. Cf. United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), wherein the United States Supreme Court facing a problem similar to the present situation stated:
“[Pjenal statutes ... like all other writing should be given, insofar as the language permits a commonsensical meaning.” 344 U.S. at 222, 73 S.Ct. at 230.
The issue is, does the phrase, “or in any combination or aggregation thereof,” refer to the word “payments” or “application” in the preceding phrase. Under the rule of “lenity” that we are suppose to apply in the interpretation of penal statutes, if the statute is ambiguous, it should be interpreted in the defendant’s favor. Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980).
Finally, turning to the right of the trial court to dismiss Count 5 in a multiple count indictment, we should follow the federal practice. This extends to the trial court the right to dismiss some among several separate counts in an indictment before trial in those cases where the trial court believes there is a multiplicity of charges. This implicates no double jeopardy issue. If the trial court is correct, the trial court should not be required to waste judicial time, and money, trying multiple counts when it has decided that such counts are improper. On the other hand, if the trial court improperly decides to try multiple charges which involve double jeopardy, because this problem falls under the “multiple punishments” prong of the double jeopardy principle, the error is subject to adequate remedy by appeal. If the trial court fails to dismiss multiple charges which involve double jeopardy, excessive charges are subject to dismissal on appeal after conviction.
If the Majority Opinion in this case is correct, there is no reason why the Commonwealth can not try this defendant on 1,600 separate counts. I do not think this is what the General Assembly had in mind.