No. 93-032
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
THE STATE OF MONTANA,
Plaintiff and Respondent,
-v-
RICHARD WAYNE BERGER,
Defendant and Appellant.
APPEAL FROM: District
Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence A. LaFountain, Havre, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Kathy
Seeley Assistant, Helena, Montana; David G. Rice,
Hill County Attorney, Havre, Montana
Submitted on Briefs: June 17, 1993
Decided: July 15, 1993
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Twelfth Judicial District Court,
Hill County, wherein the appellant, Richard Wayne Berger, pled
guilty to the offense of criminal sale of dangerous drugs in
violation of § 45-g-101, MCA, pursuant to a plea agreement under
which he reserved his right to appeal the application of 5 46-11-
503, MCA, to this case. We hold that 5 46-11-503, MCA, does not
bar the prosecution of the appellant for the offense of criminal
sale of dangerous drugs.
For purposes of this appeal, the parties have entered into an
agreed statement of facts, as follows:
1. Shortly after 8 p.m., on April 22, 1992, Hill County
Sheriff's deputies monitored a sale of dangerous drugs by Richard
Wayne Berger to an informant wearing an electronic transmitting
device.
2. The next day, April 23, 1992, shortly before midnight,
officers executed a search warrant at Berger's house.
3. Berger was found to be in possession of small amounts of
marijuana and, at 12:15 a.m. on April 24, 1992, he was arrested and
charged with two counts of possession of dangerous drugs
(marijuana) in violation of MCA § 45-g-102.
4. On April 24, 1992, Berger appeared in justice court and
pled guilty to the two possession charges.
5. The information charging Berger with criminal sale of
dangerous drugs for the April 22, 1992 sale was filed in the
district court on July 28, 1992.
6. The parties agree that the April 22, 1992 drug sale and
the April 24, 1992 possession charges were not a part of the “same
transaction" as defined in MCA 5 46-l-202(23).
Appellant Berger contends that the facts of this case fit
within the provisions of § 46-11-503(1)(b), MCA (1991), with the
result that his prosecution for criminal sale of dangerous drugs is
2
barred. He maintains that the 1991 amendments to 5 46-11-503, MCA,
eliminated the "same transaction" requirement from what is now
subsection (l)(b) and expanded the protection of the statute to
unrelated offenses. We disagree.
Section 46-11-503, MCA, is the Montana "double jeopardy"
statute. In pertinent part, that section provides as follows:
46-11-503. Prosecution based on same transaction
barred by former prosecution. (1) When two or more
offenses are known to the prosecutor, are supported by
probable cause, and are consummated prior to the original
charge and jurisdiction and venue of the offenses lie in
a single court, a prosecution is barred if:
. . .
(b) the former prosecution resulted in a conviction
that has not been set aside, reversed, or vacated[.]
Section 46-11-503, MCA, was originally enacted in 1973 as §
95-1711(3), RCM (1947), and expressly applied only to prosecutions
based upon the same transaction. See Sec. 6, Ch. 513, L. 1973.
Prior to amendments adopted by the legislature in 1991, the
statute, in pertinent part, provided as follows:
46-11-503. When prosecution based on same
transaction barred by former prosecution. If the
offenses were known to the attorney prosecuting upon
sufficient evidence to justify the filing of an
information or the issuance of a warrant of arrest and
were consummated prior to the original charge and if the
jurisdiction and venue of the several offenses lie in a
single court, a prosecution based uoon the same
transaction as a former prosecution is barred by such
former prosecution under the following circumstances: . . .
(Emphasis added).
The 1991 amendments to § 46-11-503, MCA, were part of a number
of amendments adopted by the legislature to the Montana Code of
Criminal Procedure, Title 46 MCA. It is well settled that, when
3
construing a statute, the intent of the legislature is controlling,
Holly Sugar v. Department of Revenue (1992), 252 Mont. 407, 412,
830 P.2d 76, 78; 3 l-2-102, MCA.
While there is no specific discussion in the legislative
history pertaining to the amendments to the code section at issue,
it is instructive to note, however, that at the House Judiciary
Committee hearing on March 8, 1991, with respect to Senate Bill 51,
Robert Dechamps III, Chairperson of the Montana Criminal Procedure
Committee stated that the objective of the bill was to streamline,
codify, unify and consolidate procedural rules of criminal
procedure that had been adopted by the courts over the years that
did not exist in statute. II.. .[M]ost of what the committee did
really didn't change anything. The committee streamlined and
codified the rules. Most of the bill is existing law." See
minutes of hearing on SEi 51, House Judiciary Committee, March 8,
1991, p. 6.
In his comments as sponsor of the bill, Senator Van Valkenburg
pointed out that "[t]his is a bill that modernizes and recognizes
changes in case law that has [sic] occurred over the past 25 years
since Montana's Criminal Procedure Code was last revised and put
into statute many of the common practices that occur in the
criminal arena in the state of Montana." See minutes of hearing on
SB 51, House Judiciary Committee, March 8, 1991, p. 5.
Moreover, the 1991 Commission Comments note that the new
subsections (l)(a) and (l)(b) 'I . ..preserve the 1987 code but
eliminate confusing and unnecessary provisions."
4
Neither the legislative history nor the Commission Comments
reveal that the legislature intended to substantively change the
application of 5 46-11-503, MCA, from prosecutions resulting from
the same transaction to unrelated prosecutions.
The dissent argues that the majority has inserted into 5 46-
11-503(1), MCA, the requirement that the offenses be part of the
"same transaction" and that it has improperly resorted to the use
of legislative intent in construing the statute, thereby ignoring
the clear provisions of the language of that section. While we
have no argument with the principles of statutory construction
cited by the dissent, when subsection (1) of the statute is read in
conjunction with new subsection (2), the language of subsection (1)
becomes less clear.
New subsection (2) of the statute provides that "[al
prosecution based upon the same transaction as a former prosecution
is not barred under subsection (l)(d) when: . . . .I' We are required
to avoid any statutory interpretation that renders any sections of
the statute superfluous and does not give effect to all of the
words used. Central Montana Elec. v. Adm'r of Bonneville Power
(9th Cir. 1988), 840 F.2d 1472, 1478. If subsection (1) does not
continue to pertain to prosecutions based upon the same
transaction, then the language in subsection (2) making reference
to such prosecutions is superfluous.
Furthermore, in amending the title of § 46-11-503, the
legislature retained the "same transaction" language of the
immediately preceding subsection (1). While, in construing a
5
statute, the wording of the body, and not that of the title
controls, Eastman v. School District No. 1 (1947), 120 Mont. 63,
78, 180 P.2d 472, 479 (overruled on other grounds), resort may,
nevertheless, be had to the title as an aid to construction. State
v. Bruce (1938), 106 Mont. 322, 332, 77 P.2d 403, 408, affirmed 305
U.S. 577, 59 S.Ct. 465, 83 L.Ed. 363 (overruled on other grounds).
The legislature's retention of the "same transaction" language in
the title of the statute is a further indication that subsection
(1) was not expanded to cover unrelated prosecutions.
Taking into consideration the general intent of the
legislature to malce procedural rather than substantive changes in
the law by its adoption of the 1991 amendments to the criminal
procedure code, and the above mentioned rules of construction, we
hold that § 46-11-503(l), MCA, continues to apply only to
prosecutions arising from the same transaction.
In this case the parties have agreed, and the record reflects,
that the appellant's prosecution of criminal sale of dangerous
drugs arose out of a transaction separate from that involving his
prosecution for possession of dangerous drugs. Accordingly, based
upon our construction of the statute, !j 46-11-503, MCA, does not
bar his prosecution for criminal sale of dangerous drugs, and his
conviction of that offense is affirmed.
We Concur:
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion. All of the facts which
led to defendant's arrest, prosecution, and conviction for the sale
of dangerous drugs pursuant to 3 45-g-101, MCA, were known to the
State on April 24, 1992, when defendant was charged with and
convicted of possession of dangerous drugs pursuant to 5 45-g-102,
MCA. For that reason, and because the other statutory elements are
satisfied, defendant's second prosecution, which was commenced on
July 28, 1992, was clearly barred by the plain language of
5 46-11-503(1)(b), MCA.
The majority has held otherwise by inserting into
§ 46-11-503(l), MCA, the requirement that the offenses be part of
the "same transaction." However, in doing so, the majority has
violated a cardinal principle of statutory construction. Section
l-2-101, MCA, provides as follows:
In the construction of a statute, the office of the judge
is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been
omitted or to omit what has been inserted.
In departing from the current clear language of the statute
which controls the outcome of this case, the majority has based its
decision on its contention that the Legislature did not mean to say
what it clearly did say when it amended 5 46-11-503, MCA.
Therefore, the majority ignores the plain language of that section
in favor of what it concludes was the Legislature's intent.
However, in doing so, the majority has violated a second rule of
construction which we have previously articulated in our decisions.
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In WhiteV. U"hite (1981), 195 Mont. 470, 473-74, 636 P.2d 844,
845-46, we held that:
The intention of the legislature must first be determined
from the plain meaning of the words used, and if
interpretation of the statute can be so determined, the
courts may not go further and apply any other means of
interpretation. Haker v. Southwestern Railway Co. (1978)~ 176
Mont. 364, 5 7 8 P .2d 7 2 4 ; Montana Assn. of Underwriters v. State of
Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the
language of a statute is plain, unambiguous, direct and
certain there is nothing left for the court to construe.
Doullv. Wohhchlager (1963), 141 Mont. 354, 377 P.2d 758;
National Electric ContractoorsAssn. v. State Board of Education (1960) , 137
Mont, 382, 352 P.2d 258; Vaughn & Ragsdale Co. v. State Board of
Equalization (1939), 109 Mont. 52, 96 P.2d 420. The
function of the court in construing a statute is simply
to ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted or
omit what has been inserted. Section l-Z-101, MCA. In
short, it is simply the duty of the Supreme Court to
construe the law as it finds it. Dunphy v. Anaconda Co.
C-68), 151 Mont. 76, 438 P.2d 660, and cases cited
therein.
In Statev. Hubbard (1982), ZOO Mont. 106, 111, 649 P.2d 1331,
1333, we held that "[tlhere is simply no reason for the use of
legislative history to construe a statute where the language is
clear and unambiguous on its face."
Even more recently, in Dom v. Board of Trustees of Billings School District
(19831, 203 Mont. 136, 144, 661 P.2d 426, 430, we held that:
The primary tool for ascertaining intent is the plain
meaning of the words used. The Court properly refers to
legislative history only when intent cannot be determined
from the content of the statute. The instant statute
does not necessitate such an inquiry.
There is nothing unclear about § 46-11-503(1)(b), MCA, which
requires reference to its legislative history in order to determine
the Legislature's intent. The language of the statute is clear and
9
requires the dismissal of the charges filed against defendant on
July 28, 1992. However, if, as the majority suggests, inconsistent
language in subparagraph (2) creates an ambiguity in 5 46-11-
503(1), MCA, then according to the rule of lenity the ambiguity
must be construed in favor of the defendant and against the State
which authored the ambiguous provision. State v. Goodwin (1991) , 249
Mont. 1, 24, 813 P.2d 953, 967.
For these reasons, I dissent from the majority opinion.
Justice William E. Hunt, Sr., joins in the foregoing dissent.
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July 15, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
Ilamed:
Lawrence A. LaFountain
Attorney at Law
P.O. Box 1532
Havre, MT 59501
Hon. Joseph P. Mazurek, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59620
David G. Rice
Hill County Attorney
P.O. Box 912
Havre, MT 59501
ED SMITH
CLERK OF THE SUPREME COURT
STATE 0% MONTANA