State v. Young
| Decision Date | 05 April 1999 |
| Docket Number | No. S-98-212, No. S-98-344. |
| Citation | 989 P.2d 949,1999 OK CR 14 |
| Parties | STATE of Oklahoma, Appellant, v. Michael YOUNG, Appellee, and State of Oklahoma, Appellant, v. John Veith, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶ 1 Appellee Young was charged by indictment filed on October 20, 1997, in the District Court of Oklahoma County, Case No. CF-97-6427, with five (5) counts of False Claims Against the State in violation of 21 O.S.1991, § 358. On January 23, 1998, Young's demurrer to the indictment was sustained by Special Judge Charles Humble. The State appealed that ruling to the District Court of Oklahoma County, District Judge Virgil Black. In an order entered February 13, 1998, Judge Black affirmed the magistrate's ruling, finding that funds of the Oklahoma State Insurance Fund (hereinafter "Fund") are not public funds pursuant to 21 O.S.1991, § 358. From this ruling the State appeals.
¶ 2 Appellee Veith was charged by information filed on February 19, 1998, in the District Court of Oklahoma County, Case No. CF-97-6426, with five (5) counts of False Claims Against the State in violation of 21 O.S.1991, § 358. On March 6, 1998, Veith's demurrer to the information was sustained by Special Judge David M. Harbour. The State appealed that ruling to the District Court of Oklahoma County, District Judge Virgil Black. In an order entered April 21, 1998, Judge Black affirmed the magistrate's ruling finding that funds of the Oklahoma State Insurance Fund are not public funds pursuant to 21 O.S.1991, § 358. From this ruling the State appeals.
¶ 3 As the issues presented in both of these appeals were the same, and involved the same factual situation, the cases were combined for purposes of oral argument.
¶ 4 In State v. Young, Case No. S-98-212, the State presented the following proposition of error:
1. Claims for professional services made against the Oklahoma State Insurance Fund are, for the purposes of 21 O.S. § 358, claims against the State for payment of public funds, and the mere fact that the funds of the State Insurance Fund are not subject to legislative appropriation does not change their character as public funds.
¶ 5 In State v. Veith, Case No. S-98-344, the State presented the following proposition of error:
1. The District Court erred in finding that the funds of the Oklahoma State Insurance Fund are not public funds as used in 21 O.S. § 358.
Pursuant to Rule 11.2(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998), these matters were automatically assigned to the Accelerated Docket of this Court. The propositions or issues were presented to this Court in oral argument December 10, 1998, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court.
¶ 6 In response to the State's appeal of the magistrate's ruling, Appellee Young filed a motion to dismiss the State's appeal, alleging the State had no statutory authority to appeal an order sustaining a demurrer to an indictment. Oral argument was heard on Appellee Young's motion to dismiss at the same time this Court considered the State's appeal. We will first address the motion to dismiss filed in State v. Young.
¶ 7 The State is given the power to appeal certain adverse rulings only if specifically provided for by statute. State v. Barnes, 1997 OK CR 81, ¶ 6, 952 P.2d 1001, 1002-1003; Robinson v. State, 1970 OK CR 365, 70 Okla.Crim. 365, 106 P.2d 531, 532-33 (1940). Those limited, appealable matters are enumerated in 22 O.S.1991, §§ 1053 and 1089.1. Section 1053 provides:
Appeals to the Court of Criminal Appeals may be taken by the state or a municipality in the following cases and no other:
¶ 8 Section 1089.1 provides:
The State of Oklahoma, by and through the district attorney or Attorney General, shall have the right to appeal an adverse ruling or order of a magistrate sustaining a motion to suppress evidence, quashing an information, sustaining a plea to the jurisdiction of the court, failing to find prosecutive merit in a hearing pursuant to Section 1112 of Title 10 of the Oklahoma Statutes, sustaining a demurrer to the information, binding the defendant over for trial on a charge other than the charge for the original offense, or discharging a defendant at the preliminary examination because of insufficiency of the evidence to establish either that a crime has been committed or that there is probable cause to believe that the accused has committed a felony. Such an appeal shall be taken in accordance with the procedures provided in this act. (Emphasis added.)
¶ 9 The State is required to proceed according to certain rules and procedures in appealing adverse rulings to this Court. See, 22 O.S.1991, § 1089.1 and Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998), Rules 1.0, et seq. Failure to follow the express statutory provisions and steps necessary to perfect an appeal results in the waiver of the right to appeal, and dismissal of the appeal. Barnes, 1997 OK CR 81, ¶ 6, 952 P.2d at 1002-1003.
¶ 10 Under § 1089.1, the State is only allowed to appeal to this Court after it has appealed the magistrate's unfavorable ruling to another district judge or associate district judge within the same judicial administrative district. 22 O.S.1991, § 1089.2(C). In the event the state's application to appeal is denied, and the assigned judge affirms the magistrate's ruling or order, that ruling or order is then appealable to the Court of Criminal Appeals. 22 O.S.1991, § 1089.7. In the event the State appeals an adverse ruling pursuant to § 1053, that adverse ruling is directly appealable to this Court. 22 O.S. 1991, § 1053.
¶ 11 The appeal in Mr. Young's case was from an adverse ruling of the magistrate sustaining the defendant's demurrer to the indictment. The State argues that this ruling was properly appealable pursuant to § 1089.1, alleging that an indictment is the same as an information. Since § 1089.1 allows the State to appeal from an adverse ruling of a magistrate sustaining a demurrer to an information, the State alleges it should be allowed to pursue its appeal via § 1089.1.
¶ 12 We disagree. The statutory provisions allowing the State the right of appeal are limited and very specific. There is a provision allowing the State to appeal from this particular adverse ruling, but it is not § 1089.1. While there are places in our statutes and case law where the terms "information" and "indictment" are used interchangeably, the terms are not used interchangeably in these particular statutes. This particular adverse ruling was appealable only pursuant to § 1053(1), and Rule 2.1(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998).
¶ 13 As noted in the State's brief-in-chief filed in this matter, criminal statutes are to be construed strictly against the State and liberally in favor of the accused. Boutwell v. State, 1983 OK CR 17, ¶ 36, 659 P.2d 322, 329. We will not presume that the Legislature intended to allow the State to appeal a matter not specifically designated in a statute.
¶ 14 The State appealed the matter through the procedure set forth at § 1089.1, et seq. By failing to use the proper vehicle to appeal the magistrate's adverse ruling, the State's appeal to this Court was not timely filed. Filing of the Notice of Intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the appeal. See, Rule 2.1(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998). As the State did not timely file its Notice of Intent to Appeal in the District Court, it has waived its right to appeal this particular ruling. Appellee Young's motion to dismiss the state's appeal is GRANTED.
953"/> ¶ 15 However, even if we found the State's appeal in Young was timely filed, we do not find that the District Court abused its discretion in affirming the magistrate's ruling. The magistrate did not err in ruling that the funds of the State Insurance Fund are not public funds for purposes of 21 O.S. 1991, § 358.
¶ 16 In State v. Veith, the State urges this Court to find, for purposes of criminal statute 21 O.S.1991, § 358, that the funds of the State Insurance Fund are "public funds". The characterization of the funds in question is key to determining whether or not the Appellee can be charged under the referenced statute. Section 358 reads:
In asking this Court to reverse the ruling of the District Court, the State claims Judge Black incorrectly applied the Oklahoma Supreme Court's holding in Moran v. State ex rel. Derryberry, 1975 OK 69, 534 P.2d 1282, to this case. The State alleges that this Court is not bound by the Moran decision, and that a finding that the Fund's monies are public funds for purposes of prosecuting Appellee Veith is not inconsistent with the Moran decision.
¶ 17 We agree that this Court is not bound by the Supreme Court's decision in Moran as it relates to criminal matters. The Court of Criminal Appeals has "exclusive appellate jurisdiction,...
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