N o . 80-449
& 80-450
I N THE SUPREME COURT O THE STATE O MONTANA
F F
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
ROBERT RENZ,
D e f e n d a n t and Respondent.
A p p e a l s from: District Court of t h e F i f t h J u d i c k a l D i s t r i c t ,
I n and f o r t h e County o f J e f f e r s o n ,
The Honorable F r a n k B l a i r , J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
P a t r i c k F l a h e r t y , County A t t o r n e y , B o u l d e r , Montana
For Respondent :
Henningsen, P u r c e l l & G e n z b e r g e r , B u t t e , Montana
S u b m i t t e d on B r i e f s : April 2, 1981
Decided :
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The State of Montana appeals from two orders of the
Fifth Judicial District Court, Jefferson County. In both
orders, the District Court set aside previous orders granting
leave to file an information against defendant. The court
set aside its first order and dismissed the information
without prejudice, after defense counsel moved to strike the
information. Defense counsel asserted that the information's
accompanying affidavit alleged insufficient facts to support
the information's common scheme forgery charge. Following
the entry of this order, leave of court was requested by the
State again to file a common scheme forgery information
against defendant. In support of this request, the State
filed an affidavit identical to the one used to support the
previous information. Leave to file this second information
was granted by order of the District Court, but was later
set aside on defense counsel's motion that the information's
accompanying affidavit again insufficiently supported the
information's charge. After the second order was set aside
and dismissed without prejudice, the State appealed for this
Court's review.
The issue raised is whether the District Court erred
by holding that the affidavits were insufficient to support
an application to file a common scheme forgery information.
We hold the court committed no error. We affirm the orders
of the District Court.
The defendant, Robert Renz, a Butte home builder, was
accused of committing common scheme forgery. The informations,
filed with the District Court, alleged defendant violated
the forgery statute, section 45-6-325 (1), MCA, in that:
". . . on or about: the 28th day of May, 1980,
the Defendant as part of a common scheme and
with the purpose to defraud knowingly and
without authority made or altered 2 money
orders and an application for a permit to do
plumbing and/or electrical work by signing
the name of Larry Watts to said documents
(who was unaware his name was being used) and/or
delivered said documents to the State Plumbing
Board knowing it [sic] to have been thus made or
altered." (Emphasis added.)
The identical affidavits filed in support of these
informations contain the following facts and allegations to
support the forgery accusations.
1. The state electrical inspector and state plumbing
inspector gave the county attorney documents relating to an
application for state permits to do the plumbing and electrical
wiring for a residential home under construction by defendant
for Larry Watts in Boulder. The documents included two
permit application forms and two signed money orders.
2. These documents bear Watts' signature, although
Watts claims never to have signed the documents.
3. Defendant is not a licensed electrician or plumber.
He would save considerable construction costs by having a
homeowner apply for the wiring and plumbing permits and by
completing the work himself, rather than hiring licensed
plumbers and electricians to do the work.
4. The money orders sent with the permit applications
were obtained by defendant from the First Boulder Valley
Bank.
5. The facts which indicate that this activity is part
of a common scheme can be seen by case histories of defendant's
home construction activity in the Boulder area:
a. Defendant builds homes in the Boulder area. Defendant
could save money by having a homeowner purchase the required
electrical and plumbing permits.
b. Defendant asked the local plumber if he would allow
plumbing permits to be taken in defendant's name, to which
the plumber allegedly responded, "I wouldn't touch it with a
10 foot pole."
c. The records of the State Plumbing Bureau indicate
that Alan Jones applied for a permit to do the plumbing work
on his home, constructed by defendant, and that the application
was not signed by Jones.
d. Homes have been built with construction defects
by defendant in the Boulder area.
We agree with the District Court that these facts and
allegations do not support leave for filing this charge
against defendant. The code of criminal procedure requires
that an affidavit be filed for application for leave to file
an information. The affidavit must include sufficient facts
to convince a judge that there is probable cause to believe
the named defendant may have committed the crime described
in the information. Section 46-11-201, MCA. This Court has
held that a showing of a mere probability that defendant
committed the crime charged is sufficient for establishing
probable cause to file a criminal charge. Judges, when
reviewing probable cause affidavits, should use their common
sense in determining whether probable cause exists. State
v. Hamilton (1980), - Mont . -, 605 P.2d 1121, 37 St.Rep.
70; State v. Miner (1976), 169 Mont. 260, 546 P.2d 252.
The allegations proffered in these affidavits, however,
do not indicate a probability that defendant committed the
crime of common scheme forgery.
In State v. Adams (1980), - Mont. , 620 P.2d 856,
37 St.Rep. 2053, we recently described "common scheme"
criminal activity as follows:
"The concept of 'common scheme' appears in
several sections of Montana's Criminal Code.
Section 45-2-101 (7), MCA, defines the term
as a series of acts or omissions 'motivated
by a purpose to accomplish a single criminal
objective or by a common purpose or plan which
results in the repeated commission of the same
offense or affects the same person or same
persons or the property thereof.' This
definition, as applied in the bad check,
deceptive practices, and forgery statutes, imposes
a higher penalty for offenses committed pursuant
to an elaborate plan, in contrast to the penalties
imposed for the single fraudulent act. See
Annotator's Note, Montana Criminal Code 1973
Annot., (1980 rev. ed.). See also sections
45-6-316, 45-6-317 and 45-6-325, MCA."
In Adamstthis Court reversed a common scheme theft
conviction. We held, inter alia, that proof of "common
scheme" required proof that the suspect series of acts
constitute a common criminal scheme. These acts must be
either individually incomplete such that they show that a
single crime had been committed, or be acts which closely
follow one another evidencing a continuing criminal design.
In this case, the facts and allegations included in the
affidavits are not sufficient to support a charge of common
scheme forgery. There is an insufficient connection indicated
between the money orders/permits forgery activity and defendant's
other activities described in the affidavits, to indicate
common scheme forgery activity under the Adams analysis.
Defendant's activities are not a continuation of one another,
a continual design, showing that only one crime was probably
committed by defendant.
We affirm the judgment of the District Court.
< 0
Justice
W e Concur:
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Chief