State v. Holtry

PER CURIAM. Following a preliminary hearing, the defendant was bound over to stand trial on a charge of embezzlement. The district court dismissed the charges upon a motion by the defendant, pursuant to I.C. § 19-815A, alleging that the evidence produced at preliminary hearing was insufficient to sustain the magistrate court’s determination that he should be bound over. The state appealed from the dismissal by the district court. This is not an appealable order under the provisions of I.C. § 19-2804. State v. Blair, 97 Idaho 646, 551 P.2d 601 (1976); State v. Jennings, 95 Idaho 724, 518 P.2d 1186 (1974); State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973). Although this court has on occasion entertained such appeals under the plenary power granted by Art. 5, Sec. 9, of the Idaho Constitution, see e. g., State v. Lewis, 96 Idaho 743, 536 P.2d 738 (1975), and State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972), in this case we decline to do so. The appeal is dismissed.