Dissent.
¶ 1 I must respectfully dissent to the Court’s decision in this ease. I cannot join in the labyrinth analysis which disregards pertinent facts upon which this decision is based and voids a properly enacted legislative procedure to achieve a result not intended.
¶ 2 The order omits setting out the fact that the preliminary hearing in each of these cases was not conducted pursuant to the automatic termination procedure set out in 22 O.S.Supp.1994, § 258 (Sixth). In each case, the State called its witnesses and rested. Thereafter, in Case No. P-98-506, the defendant made a proper offer of proof, called two (2) witnesses and examined them before the magistrate. However, the defendant desired to call additional witnesses who were not present at that time and had not been subpoenaed. It was at that juncture of the proceeding the magistrate inquired of the *874defendant pursuant to Section 259, regarding the relevance of the proposed testimony to the issues related to the preliminary examination. The defendant then advised the magistrate the offer of proof required under Section 259 concerning the relevance of the testimony could not be made due to the fact the State had not provided the law enforcement reports. The magistrate determined the defendant had failed to comply with Section 259, and terminated the preliminary hearing with a bind over order. In Case No. P-98-505, the magistrate asked the defense if it had witnesses to call. The defense made an offer of proof as to one witness and that witness was allowed to testify. The defense then asked to call witnesses who were present outside the courtroom. When asked to provide an offer of proof as to relevancy, the defense responded it had not spoken with the witnesses and could not provide the Court with an offer of proof. Once again, the preliminary hearing was terminated with a bind over order.
¶ 3 With all due respect to. my colleagues joining in this order, a fair reading of the language of the order indicates rather than following legislative intent and applying the language of the applicable statutes, the Court disregards each.
¶4 Recently, we recognized in State v. Martin, 1998 OK CR 35, ¶ 4, 959 P.2d 982, 983, n. 1, that the amendments to the preliminary hearing procedures and the Oklahoma Criminal Discovery Code (Discovery Code), enacted concurrently in 1994 by the Oklahoma Legislature, must be considered as a whole. 22 O.S.Supp.1997, §§ 2001-2002; 22 O.S.Supp.1997, §§ 258 and 259. The new Discovery Code provides that motions for discovery or disclosure of evidence by both parties in a criminal case cannot be made until after the preliminary hearing. 22 O.S.Supp.1997, § 2002(D). The Legislature has thus established the time period and method for defendants to discover and obtain materials and information contained in the State’s files. The only exception is requests for police reports may be made subject to the ■provisions of Section 258 of Title 22. Id.
¶ 5 Section 258 (Sixth) states that a preliminary hearing shall be terminated and a bind over order entered “once a showing of probable cause is made,” but only if the State made available for inspection all law enforcement reports within its knowledge or possession five (5) working days prior to the preliminary hearing. Because the Discovery Code was enacted concurrently, it is apparent the Legislature did not intend for Section 258 (Sixth), and its provision making available law enforcement reports, to any longer be a discovery forum for a defendant. In fact, it appears the Legislature has voided our prior caselaw on this issue by its enactment. E.g. Beaird v. Ramey, 1969 OK CR 195, ¶ 7, 456 P.2d 587, 589. This interpretation is reinforced by the language of Section 258 (Seventh) which provides “[t]he purpose of the preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime.” 22 O.S.Supp.1997, § 258 (Seventh). Moreover, the enactment of the Discovery Code, together with the amendments to 22 O.S.Supp.1994, § 761 et seq., have now supplanted the preliminary hearing as the vehicles for discovery in criminal cases.
¶ 6 It appears the Legislature intended for Section 258 (Sixth) to be limited to ensuring that, before the preliminary examination is terminated, a defendant is not denied any constitutional requirements and is given adequate means of preparing to confront the witnesses against, him at the preliminary hearing. Thus, a defendant not receiving law enforcement reports five working days prior to the preliminary hearing would be afforded the opportunity to cross-examine the State’s witnesses and present evidence at the preliminary hearing under Section 258 (Sixth) and Section 259 if the evidence was relevant and contradicted the evidence being presented by the State, or if it might indeed prove that one or both of the elements of the preliminary hearing cannot stand.
¶ 7 As previously stated, the Discovery Code does not allow any discovery until after the preliminary examination, but provides an exception for “requests for police reports ... made subject to the provisions of Sections 258 of this title.” 22 O.S.Supp.1997, § 2002(D). Thus, when read in conjunction, Section 2002(D) provides that if the State has *875not provided copies of the police reports, the defendants may request the law enforcement reports referred to by the provisions of Section 258. This procedure allows a defendant access to the information needed to make an offer of proof. However, if the State has complied with the defendant’s request for law enforcement reports, then a magistrate can terminate a preliminary examination pursuant to Section 258 (Sixth). Compare McLaughlin 1996 OK CR 11, ¶ 2, 915 P.2d at 920 (whether the defendant requested law enforcement reports was not at issue, but the state acknowledged an obligation by conceding it had not disclosed one report). If a defendant has made a discovery request and the State has not complied with a request for law enforcement reports, then the defendant can seek sanctions or petition for an extraordinary writ to compel compliance pursuant to the provisions of the Discovery Code. However, the defendants did not attempt to use the Discovery Code in these cases to obtain any reports they viewed as necessary to make their offer of proof for witnesses.
¶ 8 In the present cases, it appears Judge Harris, and now a majority of this Court, have nullified the provisions of 22 O.S.Supp. 1997, § 259, by effectively allowing the defendants to produce witnesses without meeting the requirement in Section 259 of offering proof of the relevancy of the testimony of the witnesses. Even though the State on its own did not make available law enforcement reports for the defendants, the defendants could have requested reports pursuant to Section 2002(D) of Title 22 to have the data they needed to make an offer of proof. Therefore, a remand for further preliminary hearing is not warranted under the law and facts in this case.
¶ 9 The Court in this order disregards the above application of the plain provisions of the statutes in question and proceeds to rewrite these legislative enactments. In substance, the Court tells the Legislature it does not like the way it wrote these statutes. Now the Court says in all preliminary hearings the State must provide law enforcement reports to the defendant five (5) working days prior to the date of the preliminary hearing. By doing that, the Court says all preliminary hearings “shall be terminated” once a showing of probable cause is made. Because the Court now mandates an automatic termination of the preliminary hearing, Section 259 has been judicially repealed. The reason Section 259 is now nullified is due to the fact under Section 258 (Sixth), the magistrate is mandated to terminate the preliminary hearing and enter a bind over order once a showing of probable cause is made in cases where the law enforcement reports were made available for inspection by the defense five days prior to the preliminary hearing. That showing of probable cause may in some situations be made upon the testimony of the State’s first witness, theoretically without cross-examination. Rather than clarifying, the Court now confuses and creates a tangled web of discussion in its order that abrogates a procedure lawfully enacted by the Oklahoma Legislature.
f 10 For these reasons, I must respectfully dissent to the Court’s action in this matter.