#### STATE of Arkansas v. William COSENTINO

5690

477 S.W. 2d 460

Opinion delivered March 13, 1972

*69 Ray Thornton, Atty. Gen., by John D. Bridgeforth, Asst. Atty. Gen., for appellant.

Paul Johnson and Louis Art Dodrill, for appellee.

George Rose Smith, Justice.

The appellee was charged by information with the unlawful possession of marihuana, an offense described in the information as a felony. The appellee demurred to the information, on the ground that the asserted offense is only a misdemeanor under Article IV, § 1, of Act 590 of 1971, the Uniform Controlled Substances Act. Ark. Stat. Ann. § 82-2617 (Supp. 1971). This appeal is from an order sustaining the demurrer.

The trial court correctly held the offense to be a misdemeanor, for the reasons stated in Bennett v. State, also decided today. 252 Ark. 128, 477 S.W. 2d 497. That holding, however, requires that the present appeal be dismissed, for in a misdemeanor case the State cannot appeal from an interlocutory order, such as the one sustaining a demurrer. State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614 (1960). Without deciding the point, we call attention to the possibility that the State’s privilege of appealing from interlocutory orders in felony cases, under Ark. Stat. Ann. § 43-2706 (Repl. 1964), may have been abrogated by §§ 13 and 14 of Act 333 of 1971. See Ark. Stat. Ann. §§ 43-2706 and -2720.1 (Supp. 1971).

Appeal dismissed.

Fogleman, J., concurs:

*70John A. Fogleman, Justice,

concurring. I agree that the appeal should be dismissed.1 I do not agree that the offense charged was only a misdemeanor for the reasons stated in my opinion in Bennett v. State, 252 Ark. 128 477 S.W. 2d 597.

1

Ark. Stat. Ann. § 43-2706 (Repl. 1964) allowing interlocutory appeals by the State was repealed by Act 333 of 1941.