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Gooden v. State12/19/1985
The question to be resolved in this case is one of standing to attack the constitutionality of our statute which prohibits driving while under the influence of alcohol and further provides that charges brought under the statute shall not be reduced. The county court and the district court, on appeal to it, upheld the constitutionality of the statute against the claim that it represented a legislative infringement upon the powers of the executive branch of government. We conclude that Debra Jo Gooden has no standing to raise this question, and her appeal must be dismissed. The other appellants attempted to appeal from orders which denied their several motions to dismiss charges against them. Because such orders are not final their appeals also are dismissed pursuant to order of the court.
In a brief presented in support of their cause the appellants stated the issue in this way:
"I. WHETHER SECTION 31-5-233(h), W.S. (1982) VIOLATES THE SEPARATION OF POWERS DOCTRINE OF ARTICLE 2, SECTION 1 OF THE WYOMING CONSTITUTION, OR ARTICLE 3, SECTION 2 OF THE UNITED STATES CONSTITUTION."
In responding to the appellants' brief, the State of Wyoming set forth four issues to be resolved:
"I. DO APPELLANTS HAVE STANDING TO CHALLENGE THE CONSTITUTIONALITY OF SECTION 31-5-233(h), W.S. 1977 (1983 Supp.)?
"II. ARE THE CASES OF APPELLANTS ARNESE, JONES, FISHER AND WILSON, IN WHICH NO FINAL ORDERS HAVE BEEN ENTERED, PROPERLY BEFORE THE COURT?
"III. DOES SECTION 31-5-233(h), W.S. 1977 (1983 Supp.) VIOLATE THE SEPARATION OF POWERS MANDATED BY THE UNITED STATES CONSTITUTION?
"IV. DOES SECTION 31-5-233(h), W.S. 1977 (1983 Supp.) VIOLATE THE SEPARATION OF POWERS MANDATED BY ARTICLE 2, SECTION 1 OF THE WYOMING CONSTITUTION?"
Debra Jo Gooden was cited for driving under the influence of alcohol in violation of § 31-5-233, W.S. 1977 (1983 Cum. Supp.). Subsequently the statute has been amended by ch. 41, § 2, S.L. of Wyoming, 1984. Gooden entered a plea of not guilty to the charge, and she then was tried and convicted in the county court. She filed a motion to arrest judgment pursuant to Rule 32, Wyoming Rules of Criminal Procedure for County Courts, in which she alleged that the statute was unconstitutional and for that reason the county court was without jurisdiction to try her for the offense. Sixty-three other defendants who had been charged with the same offense had filed motions to dismiss the charges against them, also based upon the asserted unconstitutionality of the statute. Gooden's motion to arrest judgment was heard at the same time as the motions to dismiss, and the county court judge denied all of the motions based upon his finding that the statute is constitutional. The appellants John Arnese, Lawrence Jones, Kelvin Fisher, and Nell Wilson were among those who had filed motions to dismiss. Gooden and these four defendants appealed the order of the county court judge denying their motions to the district court. The district court affirmed the order of the county court, and these five appellants then appealed the decision of the district court to this court.
By a contemporaneous order, we dismiss the appeal of Arnese, Jones, Fisher, and Wilson because it is an attempt to appeal from the denial of their several motions to dismiss. The denial of a motion to dismiss is not a final appealable order. Stamper v. State, Wyo., 672 P.2d 106 (1983). The district court was without jurisdiction to entertain their appeals. Rule 1.03, Wyoming Rules of Appellate Procedure for Courts of Limited Jurisdiction. If the district court had no jurisdiction to hear the appeal, this court has no juris
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