NO. 83-397
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF:
L.R.T., R.A.C., T.P.V.
and M.L.B., YOUTHS.
Appeal from: District Court of the Twelfth Judicial District,
In and for the County of Hill
Honorable Chan Ettien, Judge presiding.
Counsel of Record:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Ronald W. Smith, County Attorney, Havre, Montana
For Respondent:
Hauge, Ober, Hauge and Brown, Havre, Montana (LRT)
Altman & Lilletvedt, Havre, Montana (RAC)
Mark A. Suagee, Havre, Montana (MLR)
Submitted on briefs: January 5, 1984
Decided: May 7, 1984
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The State of Montana appeals an order of the Hill County
District Court dismissing the State's petition to declare
four youths as delinquents. The dismissal was based on
section 41-5-516, MCA, as it existed before the 1983
amendments. We affirm.
At the time the petition was filed under the Youth Court
Act in June 1983, section 41-5-516, provided a mandatory
hearing within 15 da.ys of service of process for youths in
custody (subsection 1), and a method by which a continuance
could be obtained for youths not in custody, by compliance
with the conditions set forth in subsection 2. The youths
involved were not ir! custody and the primary focus is on
subsection 2 of this statute.
Based on the youths' motions to dismiss by failure to
comply with subsection 2, the trial court ruled that the
continuances involved regardless of whether they were
obtained on motion of the State or based on the trial court's
sua sponte order of continuance, failed to meet the
requirements of subsection 2 that the continuances be "in the
interests of justice" and tha.t the moving party was
"diligent" in pursuing the matter before asking for the
continuance.
Section 41-5-516(2), permitting a continuance under
certain limitations and conditions where the youths are not
in custody, is the primary focus of this appeal. It
provides :
"The youth court may, upon motion of either party
or upon the court's own motion, order a continuance
if the youth is not in custody and interests of
justice so require. All motions for a continuance
are addressed to the discretion of the youth court
judge and must be considered. in the light of the
diligence shown on the part of the movant."
The basis for the juvenile delinquency petition was a
shooting incident in the area of North Havre, commonly known
as "Bum Jungle." The State alleged that four juveniles and
one adult obtained a gun and shot Allen Wayne Fust whil-e they
were driving in the "Bum Jungle" area. The shooting victim
was treated for his wound, released from the hospital, and he
has since disappeared and cannot be located. The adult was
cha.rged as an adult offender with the crime of aggravated
assault. The youths were charged as juvenile offenders on a
charge that they conspired to commit an aggravated a.ssault on
Fust. At the time of the incident, one of the juveniles was
16 years old, one was 15, and two were 14.
The State filed the petition on June 16, served the
youths on June 17, and a hearing date was set for June 27,
well within the 15 day hearing requirement. The hearing did
not take place on this date.
Five days before the scheduled June 27 hearing, an order
issued continuing the hearing date and setting the new
hearing date for July 6, the effect of which triggered
application of subsection 2 of the statute. How this order
happened to be issued is in dispute. At a later hearing on
the youths' motion to dismiss, the youths maintained that the
county attorney asked for the continuance, but the county
attorney steadfastly maintained that he had asked. for no
continuance. The only thing that is certain is that the
youths did not ask for this continuance.
The July 6 hearing also failed to take place. On July
6, the trial court ordered the hearing date continued and did
not set another hea.ring date. For almost a month after this
order, the State did nothing. On August 2, the State,
apparently concerned that a hearing on the juvenile petition
had not been set, requested the trial court to set a new
hearing date. The court ordered that the hearing would take
place on August 5. The juveniles, however, after receiving
notice of this hearing date, immediately filed motions to
dismiss the juvenile petition on the ground that the 15 day
time limit under section 41-5-516 (I), MCA, had not been
satisfied and that the conditions for a continuance as
provided for in subsection 2 also had not been satisfied.
At the August 5 hearing on the motion to dismiss, the
State strenuously argued that it had not asked for either
continuance. The record is silent on this question. At the
conclusion of the hearing, the trial court gave the State
three days to file a brief on its claim that section
41-5-516 (2) gave the court discretion in determining whether
or not to dismiss a juvenile petition because of a failure to
comply with the 15 day hearing requirement. The appeal
record does not reveal whether the State did file a brief.
On August 15, the trial court in a written order
explaini.ng its decision, dismissed the petition with
prejudice. The court noted that it cou1.d not be determined
whether or not the State had requested the first continuance,
but that the second continuance was granted at the request of
the Sta.te. The trial court noted that "the trail of
continuances is not well marked as to their grounds . . ."
but noted that
". . . there is nothing in the record to show the
continuances were in the interests of justice or
that consideration was had in the liqht of -
diligence shown on the part of the movant, - -
be it
state - court." (Emphasis added.)
or
The court then concluded that
11
.
while it can be argued there is a
presumption the continuances ordered were
sufficiently grounded, the Court - - - opinion
is of the
- - record should express support - -
that the for the
orders." (Emphasis added.)
Based on these considerations, the trial court concluded
that the spirit if not the letter of section 41.-5-516,
required a dismissal with prejudice.
The State presents a sliding scale argument as to
whether there has been compliance with the mandate of
sections 41-5-516 (1) and (2) . If the underlying facts
leading to the filing of the juvenile petition are relatively
harmless, the State concedes the discretion of the trial
court to dismiss the petition because of noncompliance with
the statutory mandate. But if the underlying facts indicate
a serious transgression, such as the case here, the State in
effect argues that the trial court has no discretion to
dismiss a petition, and therefore that a dismissal is an
automatic abuse of discretion. The State, however, fails to
distinguish the discretionary powers of a court to gran.t a
continuance based on compliance with the statutory mandate
and the duty of the trial court to enforce the mandate of the
statute where the mandate has not been fulfill.ed. If the
grounds for a continuance do not meet the statutory
requirements, the trial court has only one choice--to dismiss
the petition. That is the situation here.
As to the first continuance, the record fails to
indicate whether the State requested the first continuance or
whether the trial court, acting on its own, ordered the
continuance. Wha.tever the case, however, the continuance was
ordered for unknown reasons and can hardly be said to meet
the "interests of justice" and due "diligence" requirements
of subsection 2. This continuance, ordered without
compliance with the statute, placed the hearing date beyond
the 15 day limit. This, by itself, was sufficient ground for
dismissal of the juvenile petition.
This noncompliance was continued and amplified when the
second continuance was ordered. Although the State also
denied that it had requested the second continuance and
insisted that it was ordered by the Court adting without
request from counsel, the trial court determined that the
State had requested and obtained the second continuance. It
does appear, by an after-the-fact investigation, that at the
time the second continuance order was issued, the trial court
was presiding over and the prosecutor was trying a DUI case.
Whether it was the trial court acting sua sponte or whether
it was the trial court acting pursuant to a request from the
State, the fact remains that the continuance was granted with
no reasons stated in the record for the continuance. We are
left to speculate OD the circumstances leading to the
continuance order.
We cannot ignore the fact that after the second
continuance was ordered, almost a month went by before the
State requested the court to set another hearing date on the
juvenile petition. The State was on notice of the mandatory
hearing deadlines of the statute and the statutory
requirements for extending the hearing date beyond the 15 day
limit. Even assuming that the trial court also ordered the
second continuance acting sua sponte, the failure of the
State to request a hearing for almost a month after this
order was issued fails to demonstrate a reasonable attempt to
comply with the hearing mandate of the juvenile statute.
The District Court's dismissal of the juvenile petition
is affirmed.
We Concur: