NO. 93-113
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
GARY LEE BARKER,
Defendant and Respondent.
APPEAL FROM: District
Court of the Twenty-first Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George H. Corn, Ravalli County Attorney, Gerald D.
Williams, Deputy Ravalli County Attorney, Hamilton,
Montana
For Respondent:
David E. Stenerson, Attorney at Law, Hamilton
Montana
Submitted on Briefs: July 20, 1993
Decided: August 24, 1993
Chief Justice J.A. Turnage delivered the Opinion of the Court.
The District Court for the Twenty-First Judicial District,
Ravalli County, vacated a justice court's ruling which found
appellant Barker guilty of reckless driving, on the grounds that
the defendant had not been charged with reckless driving. The
District Court further held that any retrial for the offense of
driving under the influence of alcohol would violate defendant's
constitutional protection against double jeopardy. The State
appeals. We affirm.
The issues are:
1. Does a district court have authority to vacate a justice
court decision when the prosecution charged the defendant with
driving under the influence of alcohol, and the justice court found
the defendant guilty of reckless driving?
2. Does a district court have authority to dismiss an appeal
from a justice court decision on the grounds that the appellate
issues are barred by the defendant's Fifth Amendment protection
against double jeopardy?
Following a February 8, 1992 accident on Highway 93 near the
Rustic Hut Bar in Florence, Montana, Ravalli County Sheriff's
officers arrested Gary Lee Barker and subsequently charged him with
driving under the influence of alcohol, in violation of 5 61-8-401,
MCA, and operating a motor vehicle without seatbelts in use, in
violation of § 61-13-103, MCA. Barker entered pleas of not guilty
to both charges and waived his right to a jury trial.
2
The Ravalli county Justice of the Peace found Barker guilty of
the seatbelt violation and guilty of reckless driving, in violation
of § 61-g-301, MCA. In finding the reckless driving violation, the
Justice Court reasoned that reckless driving is a lesser included
offense of driving under the influence of alcohol.
The Justice Court denied Barker's motion to set aside the
judgment, and sentenced Barker accordingly. Upon Barker's motion,
the sentence imposed for reckless driving was stayed pending appeal
to the District Court. Barker paid a fine for the seatbelt
violation, and does not further challenge that charge.
Barker appealed to the District Court and then filed a motion
to dismiss the case. He argued that reckless driving is not a
lesser included offense of driving under the influence of alcohol,
and that a retrial on the original driving under the influence of
alcohol charge is barred by the double jeopardy protection provided
under the Fifth Amendment of the United States Constitution. The
State argued that unless Barker pleaded guilty under the provisions
of 5 46-12-204, MCA (plea alternatives), the District Court must
hold a trial de novo on the all the issues.
- -
The District Court vacated the reckless driving charge:
dismissed the driving under the influence of alcohol complaint with
prejudice: and affirmed the seatbelt violation.
Does a district court have authority to vacate a justice court
decision when the prosecution charged the defendant with driving
under the influence, and the justice court found the defendant
3
guilty of reckless driving?
Our standard of review relating to conclusions of law is to
determine whether the tribunal's interpretation of the law is
correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,
474-75, 803 P.2d 601, 603.
Criminal justice in Montana is subject to the mandates of the
United States Constitution, the Montana Constitution, and statutory
law. The Sixth Amendment of the United States Constitution
guarantees accused defendants the right to be informed of the
nature and cause of the accusation. The Montana Constitution,
Article II, Section 24, similarly provides that an accused shall
have the right to demand the nature and cause of the accusation.
Section 46-11-401, MCA, provides:
The charge must be a plain, concise, and definite
statement of the offense charged, including the name of
the offense, whether the offense is a misdemeanor or
felony, the name of the person charged, and the time and
place of the offense as definitely as can be determined.
The charge must state for each count the official or
customary citation of the statute, rule, regulation, or
other provision of law that the defendant is alleged to
have violated.
The charge o:E driving under the influence of alcohol required
proof that the defendant had physical control of a vehicle while
under the influence of an intoxicating substance. Section 61-8-
401, MCA. A reckless driving charge requires proof that the
defendant operated a vehicle in willful or wanton disregard for the
safety of persons and property. Section 61-8-301, MCA. Clearly
the two charges are inapposite: reckless driving is not a lesser
included offense of driving under the influence of alcohol. Cf. 5
4
46-11-410, MCA (when same transaction establishes multiple
offenses, multiple charges are possible) and State v. Ritchson
(1981), 193 Mont. 112, 630 P.2d 234 (possible to charge and convict
defendant of multiple offenses when each offense requires at least
one separate element which distinguishes it from other charged
offenses).
By convicting Barker of reckless driving when the State did
not charge him with that offense, the Justice Court violated
Barker's constitutional right to due process of law. See U.S.
Const. amend. XIV; Art. II, 5 17, Mont.Const. The finding of guilt
should be set aside as Barker did not have notice of the nature and
cause of the offense. See State v. Copenhaver (1907), 35 Mont.
342, 89 P. 61 (judgment reversed on appeal after defendant was
charged with one crime and erroneously convicted of another).
After reviewing the record we conclude that the Justice Court
was in error when it convicted Barker of reckless driving. "It is
elementary that a party cannot be charged with one offense and
convicted of another independent offense." State v. Seiff (1917),
54 Mont. 165, 168, 168 P. 524, 524. We therefore affirm the
District Court's order vacating the reckless driving charge.
II
Does a district court have authority to dismiss an appeal on
the grounds that the charges are protected by the defendant's Fifth
Amendment protection against double jeopardy?
The burden of proof for overturning the District Court
decision is on the State, as the appellant. Whether to grant or
deny a motion to dismiss at the close of the State's case is.within
the sound discretion of the trial court and will not be disturbed
unless an abuse of that discretion is shown. State v. Laster
(1986) t 223 Mont. 152, 159-60, 724 P.2d 721, 726. As was stated in
Laster, "[i]n this case with regard to the dismissal of the cause
on grounds of double jeopardy, we adopt the usual standard that the
State has the burden to show abuse of discretion by the District
Court." Laster, 724 P.2d at 726.
The State argues that the District Court must hear the appeal
from the Justice Clourt, as provided by the Montana Constitution and
statutory law. Barker argues that a subsequent trial for driving
under the influence is barred by the constitutional protection
against double jeopardy.
The State refers to the Montana Constitution, Article VII,
Section 4(2), which states "[t]he district court shall hear appeals
from inferior courts as trials anew unless otherwise provided by
law." Construing that provision, the District Court especially
noted the "unless otherwise provided by law" language.
Additionally, the court referred to F, 3-5-303, MCA, which provides
for district court appellate jurisdiction over justice court
decisions "as may be prescribed by law and consistent with the
constitution."
The court then reviewed the constitutional double jeopardy
protection provided to all criminal defendants:
The Double Jeopardy clauses of the U.S. and the Montana
constitutions provide that no person shall be "twice put
in jeopardy" for the "same offense." U.S. Constitution,
6
Fifth Amendment, Montana Constitution, Article II,
Section 25. Since Benton v. Maryland, 395 U.S. 784
(1969), the Double Jeopardy clause of the Fifth Amendment
applies to the states via the Fourteenth Amendment as a
"fundamental right." In this bench trial case, j'eopardy
attached when the first State's witness was sworn by the
Justice of the Peace. [@g] CriSt v. Bretz, 437 U.S. 28
(1978). Once jeopardy attached, any retrial for the same
offense presents potential Double Jeopardy difficulties.
While it is true that a defendant's statutory remedy for appealing
* .
a justice court decision is a trial - novo in district court, it
de -
is also true that the constitutional protection against double
jeopardy forbids a retrial on charges of which a defendant has been
acquitted before a competent court which had authority and
jurisdiction to try the offense. Section 46-17-311, MCA; Art. II,
§ 25, Mont.Const. ("No person shall be again put in jeopardy for
the same offense previously tried in any jurisdiction") (emphasis
added).
The Justice Court is a court of competent jurisdiction. Art.
VII, 5 5, Mont.Const.; 9 46-2-202, MCA; $i 3-10-303, MCA. Jeopardy
attached when the State swore in its first witness in the Justice
Court. See Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57
L.Ed.2d 376. When the Justice Court first tried Barker for driving
under the influence of alcohol it instead found him guilty of
reckless driving, necessarily implying that there was insufficient
evidence to convict Barker of driving under the influence of
alcohol as a matter of law. Section 46-11-503(a), MCA ("There is
an acquittal whenever . . . there is insufficient evidence to
warrant a conviction"); see also Green v. United States (1957), 355
U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (defendant's jeopardy for
first degree murder came to an end when the jury found him guilty
of second degree murder).
Barker appealed the reckless driving conviction. The right to
appeal a justice court decision is purely statutory. State v.
Speith (1990), 244 Mont. 392, 394, 797 P.2d 221, 222, citing State
v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d 1337, 1338. A
defendant may appeal a justice court decision to the district
court, 5 46-17-311, MCA: the prosecution may only appeal a justice
court decision as provided under § 46-20-103, MCA. State v. Kesler
(1987), 228 Mont. 242, 245, 741 P.2d 791, 793.
We have previously stated that a defendant's exclusive remedy
for a conviction in justice court is an appeal to the district
court for trial de novo. Kesler, 741 P.2d at 793; Adair v. Lake
County Justice Court (1984), 213 Mont. 466, 692 P.2d 13 (Supreme
Court does not have appellate jurisdiction to review orders of the
justice court: appeal to district court for trial de novo is
defendant's exclusive remedy). This is the general rule for
defendants appealing convictions from justice court. The purpose
for a trial de novo is to provide defendant with a competent remedy
in a court of record.
An exception to the general rule exists, however, where a
defendant appeals a conviction for which he or she was not charged.
Barker was not charged with reckless driving; he was charged, and
acquitted, of driving under the influence of alcohol. When the
District Court was faced with the untenable position of trying
Barker again for driving under the influence of alcohol, it
8
correctly held that to do so would violate Barker's constitutional
protection against double jeopardy. U.S. Const. amends. X, XIV:
Art. II, 5 25, Mont.Const.; § 46-11-504, MCA (former prosecution
bars subsequent prosecution in a different jurisdiction if the
first prosecution resulted in an acquittal or a conviction, and the
subsequent proceeding is based on the same offense or transaction).
By appealing the reckless driving conviction, Barker did not waive
his constitutional protection against double jeopardy for the
charge of driving under the influence of alcohol.
The same-elements or Blockburqer test bars multiple
prosecutions based on the same offense. United States v. Dixon
(1993), _ U.S. -, 113 s.ct. 2849, 125 L.Ed.2d 556, citing
Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed.2d 520. Here, the State failed to obtain a conviction for
driving under the influence of alcohol in Justice Court. That
proceeding barred any retrial of the driving under the influence of
alcohol charge based on Barker's February 8, 1992 accident. See
State v. Furlong (1984), 213 Mont. 251, 258, 690 P.2d 986, 989-90,
citing Burks v. United States (1978), 437 U.S. 1, 11, 98 S.Ct.
2141, 2147, 57 L.Ed.2d 1, 9-10; State v. Matt (1990), 245 Mont.
208, 214-15, 799 P.2d 1085, 1089, citing State v. Hall (1986), 224
Mont. 187, 728 P.2d 1339, rev'd on other grounds 481 U.S. 400, 107
S.Ct. 1825, 95 L.Ed.2d 354, per curiam; State v. Houser (1981), 192
Mont. 164, 168, 626 P.2d 256, 258 (same transaction rule bars
retrials concerning the same conduct tried before a competent court
of adequate jurisdiction). The State is therefore prohibited from
9
again placing Barker in jeopardy for driving under the influence of
alcohol.
We conclude that any retrial on the driving under the
influence of alcohol charge is barred by the United States and
Montana Constitutions. Where, as here, the defendant appeals from
an erroneous conviction for an uncharged offense, the defendant
does not waive the constitutional protection against double
jeopardy for charges of which he was acquitted. The State has not
met its burden of proof: the District Court ruling is affirmed.
Chief(Justice
We concur: ";:17"
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August 24, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Hon. Joseph P. Mazurek
George Schunk, Attorney General
Justice Bldg.
Helena, MT 59620
George H. Corn, County Attorney
Gerald D. Williams, Deputy
P.O. Box 5008
Hamilton, MT 59840
David E. Stenerson
Attorney at Law
P.O. Box 1667
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STAT&OF MONTANA