City of Oklahoma City v. Leonard

PARKS, Judge,

dissenting:

I dissent. Assuming the City of Oklahoma City, appellant, is properly before this Court on a reserved question of law as claimed in the brief filed on its behalf, it is well established that retrial is barred following appeal on a reserved question of law:

The 22 O.S. [1981], § 1053 procedure for appealing on a reserved question of law applies only to review following a judgment of acquittal for the defendant or an order of the court authorized by law as an express bar to further prosecution, (citations omitted)

State v. Ogden, 628 P.2d 1167, 1169 (Okl. Crim.App.1981). The fact of the matter is that appellant is not properly before this Court on a reserved question of law because the district court dismissed the case without prejudice, and therefore this appeal should be dismissed. See State ex rel. Macy v. Jackson, 659 P.2d 361, 362 (Okl.Crim.App.1983). The majority recites no authority for ignoring the foregoing precedent and treating the attempted appeal as an application for relief by mandamus, a remedy not even requested by appellant. Judge Brett has concurred in the view that “the exercise of judicial discretion cannot be reviewed or corrected by mandamus, even though there is no remedy by appeal.” State ex rel. Worthen v. Walker, 668 P.2d 1174, 1175 (Okl.Crim.App.1983). Further, I cannot agree with the majority’s bald assertion that “[t]he lack of need or availability of a transcript is why certain courts are ‘not of record’....” and that appellee has attempted to “create a court of record out of one that is not a court of record by having a transcript made.” Obviously, only the Legislature can create municipal courts of record. Okla. Const, art. VII, § 1. Nothing in the record shows appellee was trying to create a court of record out of a court not of record. Accordingly, I dissent to the majority’s assumption of jurisdiction and remand of this case for a trial de novo.