No. 88-563
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
P l a i n t . i ff and Appel-lant,
-17s-
JOEL SCHWICTENRERG,
Defendant and Respondent.
APPEAL FRON: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James El. Whee!i.s, Judae presiding.
COUNSEL OF RECORD:
For Appellant:
Pon. Marc R-acicot, Attorney General, Helena, Montana
Clay Smith, Asst. Atty. General, Helena
Robert L. Deschamps, 1x1, County Attorney; Craig
Friedenauer, Deputy County Atty., Missoul.a, Manta-na
For Respondent:
Ronald MacDonald; Datsopoulos, Macnonald and Zind,
Nissoula, Montana
Submitted on Briefs: March 23, 1989
Decided: April 2 7 1 1989
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Mr. Justice Fred J. Weber delivered the Opinion of the C o n r t .
The State of Montana appeals the dismissal of a criminal
proceeding against. the defendant, Joel Schwictenburg, in the
District Court for the Fourth Judicial District, Missou1.a
County. We reverse.
The defendant was charged in justice court with fai.lure
to stop at the scene of an accident, in violation of 5
61-7-104, MCA, and driving under the infl.uence of drugs or
alcohol in violation of 61-8-401, MCA. At trial, the
defendant was found guilty of failing to stop at the scene of
an accident, but not guilty of driving under the influence of
drugs or alcohol. The defendant then appealed his conviction
to the District Court.
At a combined arraignment and omnibus hearing, the
defendant pled not guilty and was released on his own recog-
nizance. TJater, he agreed to plead guil-ty to a violation of
61-7-104, MCA, or failure to s t ~ pat the scene of an acci-,
dent, in exchange for certain recommendations by the prosecu-
tion. A plea bargain agreement was entered into between the
defendant, his counsel, and the Deputy County Attorney Craig
Friedenauer. At the change of plea hearing, Mr. Friedenauer
and a legal intern, Robert Long, appeared on behalf of the
State. It was at that hearing that the District Court judge
dismissed the proceeding against the defendant after the
following exchanges:
THE COURT: Stat-eversus 7 n e l Schwictenhurg
You are Mr. Schwictenherq3
MR. SCHkIICTENRERG: Correct.
MR. F R I E D E N A U P : This is Robert Long, ar intern
in our office.
THE C0UF.T: Long, go g e t a j a c k e t . The
c a l e n d a r s a y s you a r e g o i n g t o
change your p l e a n o w ; i s t h a t
true?
NR. SCHWICTENRERG: Correct.
THE COURT: Is t h i s leaving the scene of
the accident?
MR. SCHWICTENRERG: Yes.
THE COURT:. How do you wj-sh to plead to
that?
KR. SCHWICTENBERG: Guilty.
THE COURT: I s t h i s i n accordance w i t h a
plea b a r g a i n l n thi.s c a s e ?
MR. SCHWICTENBERG: Yes.
TI-IE C0IJF.T : What's t h e p l e a bargain? Has
anything pressured you into
entering a plea, other than t h e
plea bargain?
MR. SCHWICTENRERG: J u s t s t r i c t l y t h e plea bargain.
THE C0UR.T: I n exchange f o r t h i s , you a r e
going t o e n t e r a p l e a , c o r r e c t ?
MR. SCH\A~ICTENRERG
: Correct.
THE C0TJF.T: Have any o t h e r p r o m i s e s or
t h r e a t s h e e n m a d e t o YOU?
MR. SCHWICTENBERG: No.
THE COURT: I s it t r u e t h a t on o r about
t h e 1 5 t h of A p r i l , 1 9 8 8 , you
were driving a Dodge
pickup--wait a minute. I 'm
trying t o find somewhere where
i t te1l.s w h a t you w e r e charged
w i t h i n practical t e r m s .
D o you w a n t a copy of t h e
Complaint?
THE COURT: There is a Complaint in here
that charges him with DUI.
This is nuts. The case is
dismissed.
The Minutes and Note of Ruling for that date further stat.e:
Deputy County Attorney Craig Friedenauer and the
Defendant with his counsel, Rebecca Summervi1!.e,
came into Court.
Defendant's motion to change his plea was heard and
granted. Thereupon by permissi-on of the Court and
consent of the County Attorney the Cefendant with-
drew his plea of "Not Guilty" and entered his plea
of "Guilty as charged in the Complaint."
The Court was advised that a Plea Bargain Agreement
had been entered into and is on file herei-n. Upon
questioning, the Court was unable to find the
appropriate documents in the Court f L l e and there-
fore dismissed the case with prejudice.
Following the State's appeal of the dismissal, the judge
issued an order stating that he had instructed the student
intern to remove himself from the courtroom until he was
appropriately attired and that he had spent considerable time
searching through the court file for the appropriate charge
but failed to lccate it. The judge offered the following
reasons for the dismissal:
1. The Nissoula County Attorney's Office is
responsible for insuring compliance with the Stu-
dent Practice Rule particularly when students are
appearing in District Court proceedings in criminal
cases. The Court expects that this supervision
will be real and not perfunctory.
2. The appearance of the student, in clear
violation of the District Court Rules, indicates to
this Court the supervisi-ng responsibility is not
being held to sufficient standards.
3. The Court not being able to proceed in an
orderly fashion with the acceptance of a plea as a
result of the violation of the District Court Rules
by the County Attorney's Office wec disruptive and
delayed the Court's proceeclings. No supervisorl~
attorney presente6. hinself to the Court with any
familiarity which would have allowed proceeding
excepting an offer to get the Court a copy of the
Complaint.
4. The Court Fj-nds that in order to communi-
cate to the County Attorney's Office that this
Court is dissatisfiei? with the degree of prepara-
tion and compliance with the Student Practice Rule
providing responsible supervisory participation
that it is necessary to dismiss the misdemeanor
Complaint.
The issue now before this Court is whether the District
Court abused its discretion by dismissinq the proceeding,
aqainst the defensant with prejudice.
Section 46-13-201(1), MCA, provides that:
The court may, either on its own motion or
upon the application of the attorney prose cut in^
and in furtherance of justice, order a complaint,
information, or indictment to he dismissed; howev-
er, the court may not order a dismissal of a com-
plaint, informaticn, or indictment, or a count
contained therein, charging a felony, unless good
cause for fiismissal is shown and the reasons for
the dismissal are set f0rt.h in an order entered
upon the minutes.
The clismissed charge in this case was a misdemeanor,
which could arguably be said not to be subject to the "goo6
cause for dismissal" required for felonies under the statute.
As the State points out, that clause addressing felony charq-
es was added to 46-13-201(1), MCA, in 1985. Prior to that
time, no distinction was made between misdemeanor and felony
charges and either could be dismissed at the court's discre-
tion if in furtherance of justice. "In furtherance of ius-
tice" remains the standard under the first phrase cS 9
46-13-203.(I), MCA, which we hold to be applicable in this
case. That standard has been interpreted in pre-1385 case
law as meanjnq t h a t the authority of the court to d.ismiss a
proceeding is not unbridled, and must he exercised in view of
the const?-tutionalrights of the defendant and the interests
of s0ciet.y. State v. Roll (19&3), 206 Mont. 259, 261-62, 670
P.2d 566, 568. See also State v. Cole (1977), 174 Mont. 380,
571 P.2d 8 7 .
Prior to addressing whether the court's dismissal Wac
"in furtherance of justice," the defendant raises several
procedural points which he contends render the State's appeal
Ineffective. First, defendant contends that at the time of
the appeal, no final order or iudqment existed as a basis for
that appeal since the District Court did not issue its order
until after the filing of the State" appeal.
The District Court's written order of November 7 did not
alter the substantive effect of its September 30 oral dis--
missal at the change-of-plea hearing. The criminal proceed-
ing against Mr. Schwictenburg was effectively dismissed upon
the court's oral declaration of September 30, which was
further reinforced by the entry contained in the minutes for
that date. Section 46-20-103 (2) (a), MCA, authorizes the
State to appeal in a criminal proceeding "from any court
order or judgment the substantive effect of which results in
... dismissing a case." (Emphasis supplied.) This section
does not require that the order be in writing. Section
46-13-201(1), MCA, directs only that the reasons for felony
dismissals be set forth in an order entered upon the minutes.
We recognize the purpose behind the requirement that reasons
for clismissal be set forth, which is to provide this Court
wlth a basis to review whether the trial judge exercised his
discretion to dismiss within the "in furtherance of justice"
standard. State v. Cole, 5 7 1 P.2d at 87. In this case,
however, ample basis appears from the District Court's oral
dismissal of September 30, which is accompanied by the tran--
script o f the proceeding and the Minutes and Note of Ruling,
to serve as a basis for review. We hold that the State could
properly appeal from the court's order of September 30 dis-
missing the case against Mr. Schwictenburg, and that the
accompanying minutes provide an adequate basis for our review
of the matter.
Turning now to the substantive issue of this case, the
State argues that the District Court abused its discretion in
dismissing the proceeding against the defendant even if the
order of November 7 is considered. The defendant argues that
the District Court was justified in its action because of the
court's frustration in not heing able to locate a particular
document which wa-s admittedly in the court File, the appear--
ance of the student intern in violation of the District Court
Rules, the failure of the deputy county attorney Craig
Friedenaur to identify himself as the supervising attorney,
and P r Friedenaur's failure to present himself to the court
l.
as being familiar with the case.
The latter two contentions are not supported by the
record, which reflects that Mr. Friedenaur was involved in
the case From Its inception and that the District Court
acknowledged his participation. The first sentence of the
minutes from the hearing states that, "Deputy County Attorney
Craig Friedenauer and the Defendant with his counsel, Rebecca
Summerville, came into Court." Mr. Friedenauer's name ap-
pears on the plea agreement and it is signed by him. Fur-
thermore, it was Mr. Friedenauer who introduced the legal
intern to the court at the change of plea hearing. We con-
clude that these justifications do not find support in the
record. and do not form a basis for the Cistrict Court's
dism4 ssal.
The defendant argues that it was within the court's
discretion tc dismiss because of its frustration in not being
a b l ~to locate a document together with the failure cf a
student intern to azhere to the rules of decorum. We recog-
nize the broad discretion allowed to the District Court in
enforcing its own rules, that discretion must be balanced
with the interests of society as outlined in State v. -----Roll,
670 P . 2 d at 5 6 0 . In balancing the absence of a court docu-
ment and the failure in court 6ecorum against the interests
of society in proceeding with a case in which a plea bargain
had been arranged, we conclude that the balance comes out in
favor of the interests of society. We hold that t-he dismiss-.
a1 of this case was not "in furtherance of justice" and was
an abuse of discretion. We hold that the dismissal is set
aside with the result that the prosecution may proceed to
trial on the charge of ~~iolation of 5 61-7-104, WCA, or
failure to stop at the scene of an accident.
We Concur: