In Re Geer

Defendant, charged by way of complaint with possession of cocaine, a felony, filed petition for writ of habeas corpus and for other appropriate extraordinary relief seeking review of an order of the magistrate transferring the case (prior to preliminary hearing) to the superior court for hearing on his demurrer to the felony complaint. On order to show cause we have limited the legal issue to one of jurisdiction to rule on the demurrer.

On September 15, 1979, petitioner was arrested for possession of cocaine, a felony, and for possession of less than one ounce of marijuana, a misdemeanor. He entered a plea of guilty [1] to the misdemeanor charge, and six days later a felony complaint charging petitioner with possession of cocaine was filed. Following a preliminary hearing, petitioner's motion to dismiss was granted and he was discharged on the ground that he "has been subjected to two prosecutions."

Seven days thereafter, the People refiled the felony complaint. Before plea petitioner filed a demurrer to the complaint on the ground that his conviction of the misdemeanor barred his subsequent prosecution for the felony which arose out of the same act or…