No. 86-551
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 Respondent,
-vs-
DENNIS JAMES COLLINS,
Defendant and A p p e l l a n t .
APPEAL F O :
R M D i s t r i c t Court of t h e Fourteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Meagher,
The Honorable Roy Rodeghiero, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
P h i l i p F. Walsh, White S u l p h u r S p r i n g s , Montana
F o r Respondent:
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
Kathy S e e l e y , A s s t . A t t y . G e n e r a l , Helena
John V. P o t t e r , J r . , County A t t o r n e y , White S u l p h u r
S p r i n g s , Montana
S u b m i t t e d on B r i e f s : Feb. 5, 1987
Decided: March 2 4 , 1 9 8 7
Filed: '. . , ,,,, - --
: %=' ;i
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Dennis James Collins appeals his conviction in Meagher
County District Court for operating a motor vehicle while
adjudged a habitual traffic of fender. Three issues are
raised on appeal: (1) whether the language of the information
was sufficient to apprise Collins of the nature of the charge
brought against him; (2) whether the District Court had
subject matter jurisdiction of the case; (3) whether the
information was duplicitous in that it charged two separate
criminal offenses. We affirm.
In May 1986, Collins was cited for operating a motor
vehicle as a declared habitual offender under 5 61-11-213,
MCA. The matter was transferred to the District Court for
trial and an information was filed by the State. The
relevant part of the information states as follows:
[a]ccuses the Defendant, Dennis James
Collins, with the crime of driving a
motor vehicle on a public highway of this
State at a time when his privilege to do
so was revoked in violation of
§ 61-5-212, Montana Codes Annotated, with
increased penalty provisions as provided
in S 61-11-213 Montana Codes Annotated,
by reason of the fact that the said
Defendant had been adjudged an habitual
traffic offender, which judgment was
still in effect, and more particularly
that on May 25, 1986, at approximately
11:53 p.m., the said Dennis James Collins
purposely and knowingly drove, operated
and was in control of a 1973 Chevrolet
Nova automobile on U. S. Highway 12 and
within the City of White Sulphur Springs,
Meagher County, Montana, at a time when
the privilege of the said Dennis James
Collins to operate a motor vehicle had
been revoked and the Defendant had been
adjudged an habitual traffic offender by
order of the District Court of Meagher
County dated April 3, 1984 in Cause no.
5936, which adjudication as an habitual
traffic offender was still in effect.
The penalty upon conviction of the
offense charged is imprisonment for a
period of not more than one year or a
fine of not more than $1,000, or both, as
provided in § 61-11-213 Montana Codes
Annotated.
At trial Collins did not dispute the allegation that he
had been adjudged a habitual traffic offender or that he had
been driving a motor vehicle at the time he was cited. He
chose to defend on the basis of necessity. As will be shown
by citation to the relevant statute below, necessity is a
defense only to a person adjudged to be a habitual traffic
offender. A jury found Collins guilty of operating a motor
vehicle as a declared habitual offender. The court fined
Collins $1,000 and sentenced him to one year in the county
iail with all but 120 days suspended.
Section 61-11-213, MCA, reads as follows:
Any person found to be an habitual
traffic offender under this part, and who
thereafter operates a motor vehicle in
this state while the order of the court
prohibiting such operation remains in
effect, shall be guilty of a misdemeanor,
and upon conviction thereof shall be
imprisoned for a period of not more than
1 year or fined not more than $1,000, or
both. However, in cases wherein the
prohibited operation of a motor vehicle
by an habitual traffic offender is
necessitated in a situation of extreme
emergency in order to save life, limb, or
property, he shall not be deemed guilty
of a violation under this part.
Collins first argues that the information was
insufficient and thereby failed to apprise him of the charge.
It is interesting to note that in his brief, Collins makes
significant concessions as to his knowledge and awareness of
the charge being brought against him. We quote directly from
the brief:
Mr. Collins concedes that he was not
completely surprised by the particular
evidence admitted against him at trial.
The officer who originally ticketed Mr.
Collins charged him with driving while
adjudged an habitual traffic offender.
The case was tried by respective counsel
as if it were an habitual offender case.
Mr. Collins' counsel admitted as much in
his motions to the Court after the close
of trial evidence (Transcript of Motions,
P. 5 ) . The evidence adduced by the
prosecution at trial was generally known
and expected by Mr. Collins.
During the argument on Collins' motions to dismi-ss, the
following exchange took place:
THE COURT: Well, are you saying that he
[the State] stated an offense in the
information that's different from what he
[Collins] is being tried with today? You
don't deny the fact that the trial today
has to do with driving as a habitual
traffic offender while he doesn't have
any license?
MR. WALSH: No, I think we all understand
that.
In addition, the jury instructions clearly show that Collins
was tried on a charge of operating a motor vehicle while an
adjudged habitual traffic offender. 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. Handy (Mont. 1986), 719 P.2d 766,
768, 43 St.Rep. 897, 899, citing State v. Longneck (1981),
196 Mont. 151, 154, 640 P.2d 436, 438, and quoting State v.
Schnell (1939), 107 Mont. 579, 585, 88 P.2d 19, 22. This
means that an erroneous statutory reference will not
invalidate the charge. Handy, 719 P.2d at 768.
While the State erroneously cited to S 61-5-212, MCA,
in the information, the facts and circumstances subsequently
described in that same information unmistakably point to an
alleged violation of § 61-11-213, MCA. Further, the penalty
provision of the information to which we cite tracks the
language of S 61-11-213, MCA. A person of common
understanding would know that the State was charging a
violation of S 61-11-213, not S 61-5-212. Collins admitted
as much in his brief. Again, we reiterate the point that the
name of a crime is controlled by the specific acts charged.
State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19. The
information contained harmless error and was therefore
sufficient to apprise Collins of the crime charged. See
State v. Pearson (Mont. 1985), 704 P.2d 1056, 1059, 42
St.Rep. 1253, 1256.
The second issue is whether the District Court had
subject matter jurisdiction of the case. The jurisdictional
statute in question is 5 61-11-214, MCA, which we quote in
full:
For the purpose of enforcing the
provisions of this part, in any case in
which the defendant is charged with
operating a motor vehicle while his
license to do so is suspended or revoked,
or is charged with driving without a
license, the court, before hearing such
charge, shall ascertain whether the
defendant has been adjudged an habitual
traffic offender and by reason of that
judgment is prohibited from operating a
motor vehicle in this state. If the
court determines that the defendant has
been so adjudged and that that judgment
remains in effect, the court shall
certify the case to the district court of
its jurisdiction for trial.
Collins was charged with operating a motor vehicle while an
adjudged habitual traffic offender. He was not charged with
operating a motor vehicle while his license was suspended or
revoked, or driving without a license and therefore no
certification to district court was required. The District
Court had subject matter jurisdiction over the case.
The third issue is whether the information was
duplicitous in that it charged two separate criminal
offenses. As stated previously, the information contained an
erroneous reference to 5 61-5-212, MCA. However, the
information clearly intended to charge Collins with driving
while an adjudged habitual offender, and was interpreted as
such by Collins. In addition, the jury was instructed that
driving while one's license is revoked is a lesser-included
offense of driving while an adjudged habitual traffic
offender. The jury was also informed that it could not find
Collins guilty of any lesser-included offense if it found him
guilty of driving while an adjudged habitual traffic
offender. Finally, the jury was instructed that it could
only convict Collins of one offense. We conclude that the
L
information was not duplicitous.
Affirmed.
.!fJustice
1
We concur: