Brenda Warne is back, but she can't go home. Not yet, anyway.

Warne, whose 2001 Tuolumne County Superior Court murder conviction was overturned on appeal, yesterday lost her bid for release.

And despite a defense motion to dismiss charges against her because of a blown court deadline, Assistant District Attorney Mike Knowles vowed after yesterday's hearing that "she will not walk" under any circumstances.

The 38-year-old Warne waved with a shackled hand to her parents, her brother and her 13-year-old daughter, Kimberley, before the 30-minute hearing began.

But Judge Eric DuTemple ruled that Warne - convicted of second-degree murder in connection with the June 2000 slaying of John Tocalino in the Willow Springs home the two shared - must wait until Aug. 26 for another chance at freedom.

DuTemple will hear arguments on a defense motion to dismiss the murder charge. Public Defender Robert Price and his deputy, Cliff Woodall, argue that the charge should be dropped because a second trial did not begin within 60 days of an Appeals Court notice that the first conviction had been thrown out because of an improperly dismissed juror.

Price argues that District Attorney Donald Segerstrom and his staff did not meet the July 23 deadline for requesting a new trial and that Warne should be freed immediately.

But DuTemple, who presided at Warne's 2001 trial during which graphic testimony described the 53-year-old Tocalinos bludgeoning death, denied Woodall's motion.

Warne, her family and her attorneys have long insisted that the actual killer was Wes Lawrence, a former boyfriend who Warne claims was jealous of her new relationship with Tocalino.

But Lawrence, involved in a host of legal problems of his own, earlier this month committed suicide.

Even if the motion to dismiss the murder charge against Warne is granted on Aug. 26, there is some doubt she will be free anytime soon.

Asked whether Warne could be rearrested and tried again for Tocalinos murder, Knowles declined comment, repeating only that she would not go free.

Woodall differed.

There is an old case that suggests she could be retried, he said outside the courtroom. But that statute has been modified several times and my reading now is that charges cannot be refiled after dismissal.

Meanwhile the District Attorneys Office has until Aug. 22 to file briefs against the motion to dismiss. And DuTemple told Knowles the court is not impressed with prosecution arguments that the appeals courts 60-day limit did not apply because Warne waived her right to a speedy trial in 2000.

Woodall and Price will have until noon on Aug. 26 to file opposing briefs.

Woodall said Warnes appeals attorney, Cara DeVito, approached his office about working on a notice to dismiss.

Warne has served 212 years of a 15-to-life sentence in the Central California Womens Facility in Chowchilla. But she was returned to the Tuolumne County Jail over the weekend and will remain there until at least Aug. 26.

There are two key issues in her case:

In February, the California Fifth District Court of Appeals in Fresno overturned Warnes conviction. The higher court reviewed trial transcripts and ruled that DuTemple wrongly dismissed a juror during deliberations.

That juror deliberated one day with her colleagues, but then decided Warne was not guilty, court records said. The other 11 jurors told DuTemple that the woman refused to deliberate further and the jury was therefore deadlocked.

The judge replaced her with an alternate, and Warne was convicted of second-degree murder six hours later. But the appellate judges ruled that DuTemple should have declared a mistrial.

On May 23, Warnes case was returned to Tuolumne County Superior Court for retrial or dismissal.

By law, the District Attorneys office had 60 days from that date to ask for a new trial, but did not.

Deputy District Attorney John Hansen on vacation until Aug. 18 prosecuted Warne in 2001. He was handling the appeal and had approached the court about setting a trial a few days before the deadline. But no trial actually began.

The Tuolumne County Public Defenders office filed its motion to dismiss on July 30.

Hansens absence yesterday was part of the reason DuTemple continued consideration of the motion until Aug. 26.