No. 84-57
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
DONALD CLAUDE DAVIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Swandal & Douglas, Livingston, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
PJm. Nels Swandal, County Attorney, Livingston, Montana
Submitted on Briefs: April 19, 1984
Decided: May 15, 1984
Filed: fdfly :5 I$Ud
- ----
Clerk
Mr. J u s t i c e F r a n k B. Morrison, Jr. d e l i v e r e d t h e O p i n i o n of
t h e Court.
Defendant Donald Davis appeals from an order of the
Sixth Judicial District Court, Park County, denying his
motion to dismiss a criminal information charging felony
common scheme f o r g e r y . W e affirm.
I n March, 1982, defendant was charged by information
with h a v i n g committed forgery as part of a common scheme.
According to the affidavit filed in support of the
information, d e f e n d a n t had c a s h e d t h r e e c h e c k s b e l o n g i n g t o
one Jim Johnson, on January 17, 19 and 20, 1982. He
a t t e m p t e d t o c a s h a f o u r t h check i n a g r o c e r y s t o r e when t h e
grocer requested identification. Defendant used his real
name, but before t h e g r o c e r c o u l d o b t a i n c o n f i r m a t i o n from
Johnson a s t o d e f e n d a n t ' s a u t h o r i t y t o n e g o t i a t e t h e check,
defendant l e f t t h e s t o r e . H e was s u b s e q u e n t l y a p p r e h e n d e d by
law e n f o r c e m e n t authorities. Defendant implicated himself
and a juvenile in cashing the checks. The three cashed
checks t o t a l e d $47.50; and t h e l a s t u n n e g o t i a t e d checlc was
w r i t t e n f o r $30.00.
Later in March, during the hearing scheduled for
arraignment, defendant a p p e a r e d w i t h c o u n s e l and e n t e r e d a
plea of guilty to the charge of felony forgery. Upon
acceptance of the plea, the court made findings and
c o n c l u s i o n s and d e f e r r e d i m p o s i t i o n o f s e n t e n c e f o r a p e r i o d
of one y e a r . Defendant v i o l a t e d t h e t e r m s o f h i s d e f e r r e d
s e n t e n c e and t h e c o u r t r e v o k e d t h e d e f e r r e d i m p o s i t i o n and
s e n t e n c e d d e f e n d a n t on May 1 8 , 1 9 8 2 , t o two y e a r s . Defendant
i s now on p a r o l e .
In October, 1983, defendant moved to dismiss the
i n f o r m a t i o n o r i g i n a l l y f i l e d a g a i n s t him on g r o u n d s t h a t t h e
forgeries did not amount to a common scheme. Because t h e
forgeries would be misdemeanors in the absence of common
scheme, and because justice courts and not district courts
have jurisdiction over misdemeanors, defendant argued that
the district court never had jurisdiction over him. The
motion was denied by the district court.
The sole issue raised on appeal is whether the
information and accompanying affidavit alleged sufficient
facts to establish probable cause to believe that defendant
had committed a felony common scheme over which the district
court had jurisdiction.
This prosecution was commenced by filing of an
information by leave of the district court pursuant to
section 46-11-201, MCA. That statute provides that leave to
file such an information may be granted only if the affidavit
of application shows there is probable cause to believe that
the described offense has been committed. State v. Renz
(Mont. 1981), 628 P.2d 644, 645, 38 St.Rep. 720, 722.
Therefore a showing of probable cause is a jurisdictional
threshhold under this method of initiating a prosecution.
The issue of subject matter jurisdiction cannot be
waived nor conferred by consent of a party, and may be raised
at any stage of a judicial proceeding by a party or sua
sponte by the court. State v. Akers (1937), 106 Mont. 43,
57, 74 P.2d 1138, 1145. However, here the question of
jurisdiction turns upon a finding of probable cause. We hold
that where a defendant has been found guilty of the offense
charged and such judgment has not been appealed or has been
affirmed on appeal, the issue of probable cause is res
judicata and will not be heard as a challenge to the court's
original jurisdiction. Such is the case here.
We affirm the order of the District Court denying
defendant's motion to dismiss.
We concur: