A. If in open court at the time the adverse ruling or order is made by the magistrate, the state shall give notice of its intention to appeal the decision. The magistrate shall then enter the notice in the proper court docket, continue the preliminary hearing and retain the accused on the present bond or if the person is in custody, return the accused to custody. The state shall file with the court clerk a written application to appeal from the adverse ruling or order of the magistrate within five (5) days from the date of the adverse ruling or order. B. If not in open court at the time the adverse ruling or order is made by the magistrate, within five (5) days from the date of the adverse ruling or order, the state shall file with the court clerk a written application to appeal from the adverse ruling or order of the magistrate. C. A copy of the application to appeal shall immediately be presented by the state to the Presiding Judge of the Judicial Administrative District. The Presiding Judge shall assign the application to another district judge or associate district judge within the same judicial administrative district, and shall order the assigned judge to set said matter for hearing and decision within twenty (20) days from the filing of the written application to appeal and shall provide at least three (3) days’ notice to all parties of the time and place of the hearing. In the absence of the Presiding Judge of the Judicial Administrative District, the Acting Presiding Judge shall perform the duties of the Presiding Judge as set forth above. The identity of the Acting Presiding Judge, if not known locally, may be obtained from the Administrative Director of the Courts at his office in Oklahoma City.
Added by Laws 1987, c. 162, § 2, emerg. eff. June 25, 1987. Amended by Laws 2002, c. 460, § 22, eff. Nov. 1, 2002.
Notes of Decisions
Cited in
8
cases, 1989–2018 · leading case:
Newton v. State, 824 P.2d 391 (Okla. Crim. App. 1991).
Newton v. State, 824 P.2d 391 (Okla. Crim. App. 1991).
· cites it 4× “He states it was not filed within twenty (20) days from the filing of the State's application to appeal as mandatorily required by 22 O.S.Supp. 1987, § 1089.2(C). Section 1089.”
State v. Young, 1999 OK CR 14 (Okla. Crim. App. 1999).
“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.”
State v. Bradley State v. Brodie, 2018 OK CR 34 (Okla. Crim. App. 2018).
“The matter was assigned to Judge Dobbins, as reviewing judge pursuant to 22 O.S.2011, § 1089.2(C), who affirmed Judge Shook's ruling.”
Thomas v. Hopper, 770 P.2d 901 (Okla. Crim. App. 1989).
· cites it 2× “Because 22 O.S.1981, § 1089.2(C) directs that the Chief Judge shall “assign the application to another district judge or associate district judge .”
State v. Barnes, 952 P.2d 1001 (Okla. Crim. App. 1997).
· cites it 4× “22 O.S.1991, § 1089.2(C).In both cases, the State failed to strictly comply with the statutory language requiring that “[a]t least three (8) days prior to the time set for hearing on the state’s application to appeal, the state shall serve, either personally or by certified…”
State v. Murray, 947 P.2d 591 (Okla. Crim. App. 1997).
“In accordance with 22 O.S.1991, § 1089.2(A), the State announced its intent to appeal in open court and filed a written application to appeal on January 17, 1997.”
State v. Bradley State v. Brodie, 2018 OK CR 34 (Okla. Crim. App. 2018).
“The matter was assigned to Judge Dobbins, as reviewing judge pursuant to 22 O.S.2011, § 1089.2(C), who affirmed Judge Shook's ruling.”
State v. Kahle, 859 P.2d 516 (Okla. Crim. App. 1993).
· cites it 2× “Title 22 O.S.1991, § 1089.2(C) states in pertinent part: “The Presiding Judge shall assign the application to another district judge or associate district judge .”
— Okla. Stat. tit. 22, § 1089.2(A) — 1 case
State v. Murray, 947 P.2d 591 (Okla. Crim. App. 1997).
“In accordance with 22 O.S.1991, § 1089.2(A), the State announced its intent to appeal in open court and filed a written application to appeal on January 17, 1997.”
— Okla. Stat. tit. 22, § 1089.2(C) — 7 cases
Newton v. State, 824 P.2d 391 (Okla. Crim. App. 1991).
“He states it was not filed within twenty (20) days from the filing of the State's application to appeal as mandatorily required by 22 O.S.Supp. 1987, § 1089.2(C). Section 1089.”
State v. Young, 1999 OK CR 14 (Okla. Crim. App. 1999).
“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.”
State v. Bradley State v. Brodie, 2018 OK CR 34 (Okla. Crim. App. 2018).
“The matter was assigned to Judge Dobbins, as reviewing judge pursuant to 22 O.S.2011, § 1089.2(C), who affirmed Judge Shook's ruling.”
Thomas v. Hopper, 770 P.2d 901 (Okla. Crim. App. 1989).
“Because 22 O.S.1981, § 1089.2(C) directs that the Chief Judge shall “assign the application to another district judge or associate district judge .”
State v. Barnes, 952 P.2d 1001 (Okla. Crim. App. 1997).
“22 O.S.1991, § 1089.2(C).In both cases, the State failed to strictly comply with the statutory language requiring that “[a]t least three (8) days prior to the time set for hearing on the state’s application to appeal, the state shall serve, either personally or by certified…”
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