concurring and dissenting.
I agree that the State cannot, without more, issue a new complaint after an adverse determination on probable cause at a preliminary hearing and that its remedy is to seek review of that' determination if it believes the magistrate erred. Only if it has new or additional information to offer or shows other good cause to justify another preliminary hearing, should the State be entitled to file a new complaint. Having agreed to that proposition, I do not believe that it answers an issue before us.
Although the State professes in its brief that the issue on appeal “is whether North Dakota law allows the State to file a second criminal complaint against a defendant when the first complaint is dismissed for lack of probable cause following a preliminary hearing,” it concedes that “[e]ven if this Court would ultimately adopt some type of curb on a prosecutor’s ability to file subsequent complaints following preliminary hearing dismissals, the facts of this case would not mandate a discharge of this defendant.” The State notes that all of the cased cited by Walker “stand for the proposition that the filing of a subsequent criminal complaint should not be allowed absent a showing of new or additional evidence or other good cause,” and observes that in the present case “a determination regarding whether the State intended to offer new or additional evidence at the second preliminary hearing was never made” because Walker filed the present appeal before the second preliminary hearing was held.
The State contends in its appeal brief that had the second preliminary hearing been held Walker would have discovered the reason for the second complaint was to introduce expert medical evidence on the issue of whether the alleged victim had the mental capacity to understand the nature of the sexual conduct which had occurred between herself and the defendant. Thus the real issue, one the majority does not and should not reach in this proceeding, is whether or not the evidence the State intended to offer was new or additional evidence that would permit the filing of a *176second criminal complaint. Walker contends it is not and the State, of course, contends that it is. Thus, despite the State’s statement of the issues and its pro forma argument to the contrary, it is apparent that the State does not and cannot rely on a bald power to repeatedly refile criminal charges without new evidence or good cause following a dismissal for lack of probable cause. Subsequent to the filing of the briefs on appeal, but prior to oral argument, Judge Schneider determined the evidence at the second preliminary hearing failed to establish probable cause to believe Walker had committed an offense.
Because of the posture of this case, I believe that (1) the majority opinion is an advisory opinion in that it answers a question not before the court on the record of the case before us; (2) that the real issue, i.e., whether or not the additional evidence offered by the State at the second preliminary hearing constituted such new or additional evidence as would permit the filing of a second criminal complaint, is not before us; and (3) that any issue is moot insofar as the second criminal complaint has been dismissed and no review of the dismissal has been sought by the State. I would, therefore, dismiss the appeal.