.O .
T
N 22-268
X N TIIE SUFREi4E COURT O ?-'HE STXI'E Or' %ONTA?JA
F
1983
STATE O F PIONTANA,
P l a i n t i f f and A p p e l i a n t ,
-vs-
ALBERT OLIVER LINDSE'TH, J R . ,
Def enSian t and R e s p o ~ l d e i l t .
Appeal from: D i s t r i c t C o u r t 02 t h e Ninch J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f T e t o n ,
The I I o ~ i o r a b l eR. 3. M c P h i l l i p s , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
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
L a r r y J u e l f s , County A t t o r n e y , C h o t e a u , Montana
For Respondent :
Charles !dl. J o s l y n , C h o t e a u , Montana
- -- .-
S u b m i t t e d on B r i e f s : Xovember 5, 1 9 8 2
Decided: March 7 , 1933
Filed: MAR 7
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The State appeals an order of the Teton County District
Court dismissing two counts of misdemeanor assault against
defendant, Albert Oliver Lindseth, Jr. The order of
dismissal was based on the double jeopardy clauses.
Defendant had been charged with four counts of
misdemeanor assault in Justice Court. The jury acquitted
defendant of two counts but found him guilty on the two other
counts. After sentence was imposed, defendant appealed to
District Court where he has the right to trial de novo.
Rather than proceeding to trial, defendant filed a motion
that the two charges be dismissed, and the District Court
granted the motion. The court apparently reasoned that all
four counts of assault arose from one transaction, and that
the acquittal on two of the charges precluded a conviction on
the other two charges. The court did not explain why it
thought double jeopardy attached to the two counts on which
defendant was convicted. We vacate the order and remand for
trial in District Court.
Just as the Pioneer Bar in Choteau was being closed on
March 2, 1981, a fight broke out and within two or three
minutes at most, the events took place out of which four
assault charges were filed against defendant. Defendant was
charged in the sequence in which the events allegedly took
place. All charges were filed under section 45-5-201(1) (a),
MCA, which provides in substance that it is a misdemeanor for
one to purposely or knowingly inflict bodily injury on
another.
Count I charged defendant with "striking Craig Henderson
in the mouth ---
with his fist." Count I1 charged defendant with
"cutting Brian Georqe Peterson horizontally above Brian
George Peterson's chin - - a knife."
with Count I11 charged
defendant with "cutting Craig Henderson across the right side
of Craig Henderson's face and across the left side of Craig
Henderson's throat - - a knife."
with And Count IV charged
defendant with "throwing - pool ball at Brian George Peterson
a
which struck Brian George Peterson on - - behind his
his head
right ear."
The Justice Court jury acquitted defenda.nt of Count I
assault wj.th a fist and Count IV assault with a pool ball.
However, the jury found defendant guilty of Count 11, cutting
Brian George Peterson with a knife and Count 111, cutting
Craig Henderson with a knife. After defendant was sentenced
in Justice Court for these crimes defendant appealed the
convictions to District Court where he has a right to trial
de novo. As stated, the District Court then dismissed both
charges based on the double jeopardy clauses.
It cannot be doubted that Counts I1 and I11 charged
separate offenses--in each count defendant was charged with
cutting a different person with a knife. In convicting
defendant on both counts, the jury obviously found that
defendant did cut both people with a knife. Defendant was
convicted of these charges only once. Defendant ha-d no right
to dismissal of these charqes on double jeopardy grounds.
His right to trial de novo in District Court is merely a
continuing jeopardy arising from the Justice Court
proceedings. Sta-tev. Keerl (19061, 3 3 Mont. 501, 516, 85 P .
862, 865.
Although double jeopardy violations do not exist in this
case, we note a trend in prosecutions to use multiple count
pleadings. Prosecutors and trial courts should note the
limitations and spirit behind the double jeopardy clause so
that they may avoid potential constitutional problems. The
double jeopardy clause protects aga.inst (1) a second
prosecution for the same offense after acquittal; (2) a
second prosecution for the same offense after conviction; and
(3) multiple punishments - - - offense.
for the same North
Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656. In Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct.
2221, 53 L.Ed.2d 187, the United States Supreme Court
reminded us that
"The Double Jeopardy Clause is not such a fragile
guarantee that prosecutors can avoid its
limitations by the simple expedient of dividing a
single crime into a series of temporal or spatial
units." 432 U.S. at 169.
The order of dismissal of the District Court is vacated
and the cause remanded for trial on Counts I1 and 111.
We Concur:
Chief Justice
1 Justices /
Mr. J u s t i c e L . C. G u l b r a n d s o n s p e c i a l l y c o n c u r r i n g :
I concur in the result, but because of dicta in the last
p a r a g r a p h , I c i t e M i s s o u r i v. H u n t e r , U n i t e d S t a t e s Supreme C o u r t
case No. 81-1214, decided January 19, 1983, where the court
stated:
" O u r a n a l y s i s and r e a s o n i n g i n Whalen and -
A l b e r n a z l e a d i n e s c a p a b l y to t h e c o n c l u s i o n
t h a t s i m p l y b e c a u s e two c r i m i n a l s t a t u t e s may
b e c o n s t r u e d t o p r o s c r i b e t h e same c o n d u c t
u n d e r t h e B l o c k -r g e r t e s t d o e s n o t mean t h a t
b u-
t h e Double J e o p a r d y C l a u s e p r e c l u d e s t h e impo-
s i t i o n , i n a s i n g l e t r i a l , of cumulative
punishments pursuant t o those s t a t u t e s . The
r u l e of s t a t u t o r y c o n s t r u c t i o n noted i n - Whalen
-
is not a c o n s t i t u t i o n a l r u l e requiring c o u r t s
to negate clearly expressed legislative
intent. Thus f a r , we have u t i l i z e d t h a t r u l e
o n l y t o l i m i t a f e d e r a l c o u r t ' s power t o
i m p o s e c o n v i c t i o n s and p u n i s h m e n t s when t h e
w i l l o f C o n g r e s s is n o t c l e a r . Here, t h e
Missouri L e g i s l a t u r e h a s made its i n t e n t
c r y s t a l clear. Legislatures, not courts,
p r e s c r i b e t h e scope of punishments.
" W h e r e , as h e r e , a l e g i s l a t u r e s p e c i f i c a l l y
a u t h o r i z e s cumulative punishment under t w o
s t a t u t e s , r e g a r d l e s s of w h e t h e r t h o s e two s t a -
tutes proscribe t h e "same" conduct under
Blockburger, a court's t a s k of statutory
c o n s t r u c t i o n is a t a n end and t h e p r o s e c u t o r
may s e e k and t h e t r i a l c o u r t o r j u r y may
impose c u m u l a t i v e p u n i s h m e n t u n d e r s u c h s t a t u -
tes i n a s i n g l e t r i a l ."
I concur
k'
i n t h e f o r e g o i n g s p e c l a l c o n c u r r i n g o p i n i o n of M r .
J u s t i c e Gulbrandson .
s;d-d7.9
C h i e f Justice
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