No. 85-559
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ROGER HANDY,
Defendant and Appellant.
APPEAL FROM: The District Court of Thirteenth Judicial District,
In and for the County Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry Seiffert, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
Harold F. Hanser, County Attorney, Billings, Montana
Donna K. Heffington, Deputy County Attorney, Billings
Submitted on Briefs: Feb. 13, 1986
Decided: June 4 , 1986
Filed:
*@
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The Yellowstone County District Court, sitting without a
jury, found Roger Handy guilty under 5 61-8-401 (1)(a), PICA,
of driving a motor vehicle while under the influence of
alcohol. Handy appeals raising one issue; i.e., whether the
District Court erred in allowing the State to amend the
charge to correct an inaccurate statutory reference to which
appellant had objected prior to his conviction in the Justice
Court. We affirm the conviction.
In November 1984, a Montana Highway Patrol officer
arrested the appellant and issued two traffic citations to
him. One citation, not at issue here, charged appellant with
reckless driving. The instant case arises out of the second
citation which charged appellant with violating S 61-8-406,
MCA, ". . . in that said defendant did knowingly or purposely
or negligently drive or be in actual physical control of
motor vehicle while under the influence of alcohol." The
reference to that statute was incorrect. The language of the
citation closely tracks the language of $ 61-8-401(1), MCA,
which makes it unlawful ". . . for any person who is under
the influence of: (a) alcohol to drive or be in actual
physical control of a vehicle upon the ways of this state
open to the public; . . ." However, the citation refers to S
61-8-406, MCA, which provides:
It is unlawful ...
for any person to
drive or be in actual physical control of
a vehicle upon the ways of this state
open to the public while the alcohol
concentration in his blood, breath, or
urine is 0.10 or more.
It is worth noting that the appellant refused to submit to a
blood-alcohol test.
In January 1985, the Yellowstone County Justice Court
held a trial on appellant's two traffic citations. We have
no record whatsoever of the Justice Court trial itself.
However, both parties agree that following the State's
case-in-chief, appellant moved to dismiss the DUI charge and
argued there was an inconsistency between the statutory
reference on the charging document and the evidence
presented. Both parties also agree that the State, in
response to appellant's motion to dismiss, moved to amend the
charge by correcting the statutory reference. There is some
confusion as to the resolution of the State's motion to
amend. Appellant asserts that the motion to amend was
denied. The Yellowstone County deputy county attorney filed
one brief stating that the State did not recall whether the
Justice Court granted, denied or ignored the motion to amend.
In any event, the Justice Court found appellant guilty of
"Drive or Be In Control of Motor Vehicle While Under the
Influence of Alcohol. " The Justice Court also found
appellant guilty of reckless driving. Appellant moved for
judgment notwithstanding the verdict and asserted that the
court failed to determine whether appellant was properly
charged. The Justice Court denied appellant's motion. He
appealed only the DUI charge to the District Court.
Prior to trial in the District Court, the State again
moved to amend the citation by changing the statutory
reference from S 61-8-406, MCA, to § 61-8-401, MCA. The
District Court granted the State's motion to amend. The
court found that the error (the wrong statutory reference) in
the DUI citation was a ". . . typographical error, the
correction of which will not prejudice the defendant.. . .'
I
In October 1985, the District Court, sitting without a jury,
held a trial de novo on the DUI charge and found appellant
guilty of driving a motor vehicle while under the influence
of alcohol. This appeal followed.
The only issue on appeal, as stated by appellant, is
whether the District Court erred in permitting the State to
amend the charge. Here, the appellant was charged under the
language of $ 61-8-401, MCA, (driving under the influence of
alcohol) although the citation listed S 61-8-406, MCA
(driving with a blood alcohol concentration of 0.10 or more).
Both the Justice Court and the District Court, in finding
appellant guilty, used the language "driving under the
influence. l1 A conviction under S 61-8-406, MCA, would have
been virtually impossible to obtain as appellant refused to
submit to a blood-alcohol test.
Appellant argues that the Justice Court found him guilty
of a crime that he was not charged with. We disagree. This
Court has repeatedly stated:
"The general rule is that when the facts,
acts and circumstances are set forth with
sufficient certainty to constitute an
offense, it is not a fatal defect that
the complaint gives the offense an
erroneous name."
State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436,
438; quoting State v. Schnell (1939), 107 Mont. 579, 88 ~ . 2 d
The Schnell Court, citing numerous jurisdictions,
also stated:
The name of the crime is controlled by
the specific acts charged, and an
erroneous name of the charge does not
vitiate the complaint.
Schnell, 88 P.2d at 22.
In this case, the complaint used the language of
$ 61-8-401, MCA, in charging appellant with driving under the
influence of alcohol. The judgment of conviction also used
that statutory language. Under the rule of Longneck and
Schnell, an erroneous statutory reference will not invalidate
the charge. The test for the validity of a complaint is
whether a person of common understanding would know what was
intended to be charged. State v. Kirkland (1979), 184 Mont.
229, 602 P.2d 586; citing State v. Dunn (1970), 155 Mont.
319, 327, 472 P.2d 288, 294. The general rule in Montana is
that a complaint is sufficient if it properly charges an
offense in the statutory language describing the offense.
State v. Hankins (Mont. 1984), 680 P.2d 958, 41 St.Rep. 762;
citing State ex rel. Glantz v. District Court (1969), 154
Mont. 132, 461 P.2d 193. The disputed complaint charged
appella.nt using the statutory language and we hold that the
complaint adequately described, and gave notice to appellant
of, the offense he was subsequently convicted of.
Appellant also argues that the District Court could not
amend the charge to conform to the Justice Court conviction.
Again we disagree. Section 46-11-403, MCA, provides, in
pertinent pa.rt:
(2) The court may permit an information
to be amended as to form at any time
before verdict or finding if no
additional or different offense is
charged and if the substantial rights of
the defendant are not prejudiced.
(3) No charge may be dismissed because
of a formal defect which does not tend to
prejudice a substantial right of the
defendant.
The formal defect of this charge, the incorrect statutory
reference, did not prejudice a substantial right of
appellant. Appellant was clearly apprised of the charge.
Moreover, appellant knew that a conviction under the
incorrect statutory reference (for driving with a
blood-alcohol level of 0.10 or greater) was virtually
impossible because no blood-alcohol test was taken.
Appellant knew the charge against him and we hold that the
District Court did not err in allowing the State to amend the
charge and correct the statutory reference.
Affirmed.
\
We concur: