96-674
No. 96-674
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Appellant,
v.
BARBARA E. McELDERRY,
Defendant and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence J. Nistler, Attorney at Law, Polson, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Patricia J. Jordan, Assistant Attorney General;
Helena, Montana
Kim Christopher, Lake County Attorney;
Robert J. Long, Deputy County Attorney;
Polson, Montana
Submitted on Briefs: August 7, 1997
Decided: September 8, 1997
Filed:
__________________________________________
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Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
On October 16, 1996, the State of Montana charged Barbara McElderry, by
complaint filed in the Lake County Justice Court, with driving under the influence of
alcohol, fifth offense, a felony, in violation of 61-8-401(1)(a), MCA, and with
reckless
driving and driving while her license was suspended or revoked, in violation of
61-8-
301(1)(b) and 61-5-212, MCA, respectively. On October 25, 1996, the State filed a
motion and affidavit for leave to file an information in District Court. That
motion was
granted on October 28, 1996, and the information was filed that same day. The
information, however, was later dismissed for the State's failure to file an
information
within a reasonable time from the date of the defendant's imprisonment. The State
appeals from the District Court's order dismissing the information. We vacate the
District Court's judgment and remand this case for further consideration consistent
with
this opinion.
The issues on appeal are:
1. Did the District Court err when it calculated the time period referred to
in
46-10-105, MCA, from the time of the defendant's arrest, rather than from her
initial
appearance?
2. Did the District Court err when it concluded that in State v. Higley
(1980),
190 Mont. 412, 621 P.2d 1043, this Court adopted a ten-day time limitation for
charging
a person in custody, consistent with Rule 5(c) of the Federal Rules of Criminal
Procedure?
3. Did the District Court err when it found the period of time which elapsed
prior to the filing of the information unreasonable in this case?
FACTUAL BACKGROUND
On October 14, 1996, Barbara McElderry was arrested in Lake County for
allegedly committing the offenses of driving under the influence of alcohol, reckless
driving, and driving while her license was suspended. In its complaint and
affidavit, the
State alleged that the arresting officer noticed McElderry's vehicle weaving in her
lane
and speeding along highway 93 near Pablo, Montana. Following her detention and
refusal to perform any of the standard field sobriety tests, McElderry was placed
into
custody in the Lake County jail.
Two days later, on October 16, 1996, McElderry made her initial appearance in
the Lake County Justice Court and the State charged her by filing its complaint. The
charges brought against McElderry were driving under the influence of alcohol, her
fifth
offense, a felony pursuant to 61-8-401(1)(a), MCA, and the misdemeanors of reckless
driving in violation of 61-8-301(1)(b), MCA, and driving while her license was
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suspended or revoked in violation of 61-5-212, MCA.
On Friday, October 25, 1996, the State filed a motion for leave to file an
information in the District Court for the Twentieth Judicial District in Lake
County. The
District Court granted leave to file the information on Monday, October 28, 1996. On
that same day, fourteen days after McElderry's arrest and imprisonment, and twelve
days
after her initial appearance in the Justice Court, the State filed its information.
On October 29, 1996, McElderry filed a motion to dismiss the charges based on
her contention that the reasonable time requirement in 46-10-105, MCA, as
interpreted
by this Court in Higley, 190 Mont. 412, 621 P.2d 1043, requires a determination of
probable cause within ten days following a defendant's initial appearance. The State
responded that this Court, in Higley, found that a ten-day delay prior to a
determination
of probable cause is not unreasonable, but that ten days is not considered an outer
limit
for what is reasonable. The District Court granted McElderry's motion and dismissed
the State's information with prejudice.
In its order dismissing the State's information, the District Court adopted by
reference McElderry's arguments as set out in her briefs, and stated that, pursuant
to
Higley, the State failed to hold a preliminary examination in Justice Court or
obtain leave
from the District Court to file the information within a reasonable time. The
arguments
presented by McElderry in support of her motion to dismiss, and which were later
adopted by the District Court in its order, focused on our interpretation of 46-10-
105,
MCA, in Higley.
Section 46-10-105, MCA, provides as follows:
After the initial appearance, in all cases in which the charge is triable in
district court, the justice's court shall, within a reasonable time, hold a
preliminary examination unless:
(1) the defendant waives a preliminary examination;
(2) the district court has granted leave to file an information;
(3) an indictment has been returned; or
(4) the case is triable in justice's court.
Because McElderry was charged with a felony which is triable in district court,
46-10-105, MCA, requires that, unless an exception applies, a preliminary
examination
must be held within a reasonable time after McElderry's initial appearance. Of the
four
enumerated exceptions to the reasonable time requirement in the statute, only
subsection
(2) "the district court has granted leave to file an information," applies to this
case.
McElderry, however, contends, and we agree, that the exception does not apply if a
"reasonable time" expired before leave was granted.
The Federal statute referred to by McElderry, as set out in Higley, states in
relevant part:
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"Such examination shall be held within a reasonable time but in any event
no later than 10 days following the initial appearance if the defendant is in
custody . . . provided, however, that the preliminary examination shall not
be held if the defendant is indicted or if an information against the
defendant is filed in district court . . . ."
Higley, 190 Mont. at 419, 621 P.2d at 1048 (quoting 18 U.S.C. Fed. R. Crim. P. 5(c)).
On November 18, 1996, the District Court granted McElderry's motion to dismiss
and adopted by reference the arguments presented by McElderry as a basis for finding
the time lapse unreasonable. However, contrary to the assertions of both McElderry
and
the State, the District Court calculated the delay from October 14, 1996, the day
McElderry was arrested and placed into custody, rather than October 16, 1996, the day
she made her first appearance. The total delay assumed by the court was, therefore,
fourteen days, rather than twelve.
ISSUE 1
Did the District Court err when it calculated the time period referred to in
46-10-105, MCA, from the time of the defendant's arrest, rather than from her
initial
appearance?
The standard of review of a district court's conclusions of law is whether the
court's interpretation of the law is correct. See Kreger v. Francis (1995), 271
Mont.
444, 447, 898 P.2d 672, 674. In Kreger, we held that "'where the language of the
statute is plain, unambiguous, direct, and certain, the statute speaks for
itself.'" Kreger,
271 Mont. at 447, 898 P.2d at 674 (quoting State ex rel. Palmer v. Hart (1982), 201
Mont. 526, 530, 655 P.2d 965, 967).
The District Court dismissed the State's information based in part on its
conclusion
that the time period at issue began at the moment McElderry was arrested and placed
into
custody. The plain language of the governing statute, however, clearly requires a
preliminary examination to be held, or other determination of probable cause to be
made,
within a reasonable time after the initial appearance. Section 46-10-105, MCA,
provides
in relevant part that:
After the initial appearance, in all cases in which the charge is triable in
district court, the justice's court shall, within a reasonable time, hold a
preliminary examination unless:
. . . .
(Emphasis added.) Therefore, we conclude that the District Court erred in its
calculation
of the delay.
ISSUE 2
Did the District Court err when it concluded that in State v. Higley (1980), 190
Mont. 412, 621 P.2d 1043, this Court adopted a ten-day time limitation for charging a
person in custody, consistent with Rule 5(c) of the Federal Rules of Criminal
Procedure?
In its order dismissing the State's information, the District Court concluded
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that,
pursuant to our decision in Higley, the reasonable time requirement set forth in
46-10-
105, MCA, for holding a preliminary examination or otherwise making a determination
of probable cause, has an outer limit of ten days. Based on this conclusion, the
District
Court found the fourteen day delay between McElderry's incarceration and the filing
of
the State's information unreasonable.
Section 46-10-105, MCA, itself, does not set a ten-day time limit, but merely
states the preliminary hearing must be held within a reasonable time unless, inter
alia,
the court grants leave to file an information or unless another statutory exception
applies.
Contrary to the arguments set forth by McElderry, we did not adopt the ten-day time
period established in Rule 5(c) of the Federal Rules of Criminal Procedure in our
decision
in Higley. We merely held that a ten-day delay in determining probable cause was not
unreasonable. Our discussion in Higley of the current federal ten-day rule serves
only
as an example of jurisdictions using precise time limits, and to distinguish it from
Montana's "reasonable time" rule which is similar to the previous federal rule.
Our intent in Higley was to demonstrate that even a ten-day delay, as proscribed
by the federal statute, may not be unreasonable in Montana. This is evident in our
discussion of James v. Lawrence (D.C. Cir. 1949), 176 F.2d 18, a case decided
pursuant
to the previous federal rule which merely required a hearing in a reasonable time.
There,
we noted that eighteen days was not an unreasonable delay. See James, 176 F.2d at
20.
In another example of a standard similar to that used in Montana, we also noted in
Higley
the Alaska case of Martinez v. State (Alaska 1967), 423 P.2d 700, 710-11, in which
the
Alaska Supreme Court concluded that what constitutes a reasonable time must be
determined by the facts of the case. In Martinez, a sixteen-day delay was found
reasonable. See Martinez, 423 P.2d at 710. We therefore concluded in Higley that "a
10-day delay in determining probable cause was not unreasonable." Higley, 190 Mont
at 420, 621 P.2d at 1048.
Therefore, we conclude that the District Court erred by holding that in Higley
this
Court adopted the ten-day time limitation for charging a person in custody as
established
by Rule 5(c) of the Federal Rules of Criminal Procedure.
ISSUE 3
Did the District Court err when it found the period of time which elapsed prior
to
the filing of the information unreasonable in this case?
We have held that a determination of a "reasonable time" pursuant to 46-10-
105,
MCA, is within the discretion of the district court. Higley, 190 Mont. 412, 621 P.2d
1043. The standard of review of discretionary trial court rulings in criminal cases
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is
whether the trial court abused its discretion. See State v. Sullivan (1994), 266
Mont.
313, 324, 880 P.2d 829, 836. See also State v. Mergenthaler (1993), 263 Mont. 198,
204, 868 P.2d 560, 563; State v. Later (1993), 260 Mont. 363, 364, 860 P.2d 135, 136.
However, because the District Court erred in its calculation of the period of
delay,
we are not able to determine how the court would, in fact, exercise its discretion
based
on the actual delay which was twelve days.
Therefore, we conclude that the District Court erred in its calculation of the
actual
delay, and when it concluded that Higley established a ten-day time limit for
granting
leave to file an information. Since the reasonableness of the delay is a
discretionary
decision which is factually driven, we do not know how the District Court would
exercise
its discretion, absent these erroneous assumptions and, therefore, vacate the prior
judgment of the District Court and remand this case for further consideration
consistent
with this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
___________________________________
Chief Justice
___________________________________
___________________________________
___________________________________
Justices
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