No. 02-024
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 198
STATE OF MONTANA,
Plaintiff and Appellant,
v.
CLINTON RAY ROBISON,
Defendant and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DC 01-174,
Honorable C. B. McNeil, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Honorable Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Robert Long, County Attorney, Polson, Montana
For Respondent:
Larry J. Nistler, Public Defender, Polson, Montana
Submitted on Briefs: May 2, 2002
Decided: August 12, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 The State of Montana appeals the order of the Twentieth Judicial District Court, Lake
County, dismissing the information filed by the Lake County Attorney. We affirm.
¶2 The sole issue on appeal is whether the District Court erred when it dismissed the
State’s information on the grounds that the time delay between the defendant’s initial
appearance and the filing of the information was unreasonable.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On December 1, 2001, Clinton Ray Robison (Robison) was arrested and charged with
burglary, a felony, in violation of § 45-6-204, MCA. Robison appeared before the Justice
of the Peace on December 3, 2001. At this initial appearance, Robison was advised of his
rights and bail was set at $10,000.
¶4 Eleven days later, on December 14, 2001, the Lake County Attorney’s office, after
obtaining leave from the District Court, filed an information charging Robison with burglary
under § 45-6-204, MCA. The District Court continued bail in the amount of $10,000 and
scheduled an arraignment for December 19, 2001. At that time, Robison moved to dismiss
the information, arguing that the eleven days which had elapsed between his initial
appearance and the filing of the information violated § 46-10-105, MCA. The District Court
granted Robison’s motion to dismiss on December 27, 2001. The State of Montana appeals.
2
DISCUSSION
¶5 Did the District Court err when it dismissed the State’s information on the ground
that the time delay between the defendant’s initial appearance and the filing of the
information was unreasonable?
¶6 The grant or denial of a motion to dismiss in a criminal case is a question of law
which we review de novo. State v. Diesen, 2000 MT 1, ¶ 11, 297 Mont. 459, ¶ 11, 992 P.2d
1287, ¶ 11. However, we have held that a determination of a “reasonable time” pursuant to
§ 46-10-105, MCA, is within the discretion of the district court. State v. McElderry (1997),
284 Mont. 365, 370, 944 P.2d 230, 233. The standard of review of discretionary trial court
rulings in criminal cases is whether the trial court abused its discretion, and the
reasonableness of the delay is a discretionary decision which is factually driven. McElderry,
284 Mont. at 370, 944 P.2d at 233.
¶7 Section 46-10-105, MCA, provides that in cases triable in the district court, the justice
court shall hold a preliminary examination within a reasonable time after the defendant’s
initial appearance, unless one of the statutory exceptions exist, including, for purposes of this
matter, the filing of an information in the district court. Dismissal of the charges is required
if a preliminary examination is not conducted and a “reasonable time” expires prior to the
filing of an information in the district court. McElderry, 284 Mont. at 368, 944 P.2d at 231.
¶8 Robison’s motion to dismiss cited a series of rulings by the District Court “where a
delay of more than 10 days resulted in Orders of dismissal with prejudice of the charges.”
In response, the State did not discuss the circumstances of the case, nor offer reasons for the
3
time taken to file the information, but argued that the “ten (10) day rule for delay under the
applicable reasonableness standard would appear arbitrary” and that if Robison could not
demonstrate prejudice, his motion should be denied.
¶9 The District Court’s order indicated that “this Court advised the Lake County
Attorney that any delay in excess of ten days will trigger an inquiry into the reasonableness
of the delay, and that the burden of showing reasonableness is upon the State as held by this
Court in McElderry.” Noting that the State had provided “no factual basis for the Court to
determine whether the Information was filed within a reasonable time,” the District Court
dismissed the information.
¶10 In McElderry, this Court clearly held that no definite or “trigger” deadlines are
applicable in determining the reasonableness of the time taken to file an information.
Explaining our previous discussion of this issue in State v. Higley (1980), 190 Mont. 412,
621 P.2d 1043, Justice Trieweiler wrote in McElderry:
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.
McElderry, 284 Mont. at 370, 944 P.2d at 232-33.
4
¶11 The State correctly argues that the District Court’s use of a ten-day deadline which
automatically triggers an inquiry and places a burden upon the State to demonstrate
reasonableness is not consistent with our holding in McElderry. We required no such
consideration nor procedure. Indeed, Robison’s motion to dismiss was grounded on
reasoning which conflicts with McElderry: he simply argued that the District Court’s
standing ten-day rule had been violated, and made little effort to demonstrate that the delay
under the circumstances was unreasonable, as was his burden in making the motion, except
to note that his client had been incarcerated.
¶12 As we stated in McElderry, a reasonableness inquiry must be “determined by the facts
of the case.” McElderry, 284 Mont. at 370, 944 P.2d at 233. A reasonableness inquiry may
include consideration of such factors as length of the delay, reasons for the delay, whether
the defendant has been incarcerated or prejudiced, whether the defendant has counsel, the
seriousness or complexity of the charge, and other relevant matters. Although the State
argues that the District Court wrongly interpreted McElderry to mean “that prejudice to the
defendant is not part of the inquiry,” the State is incorrect in this regard. The District Court
noted that Robison had been incarcerated during the time in question and found that he had
sustained prejudice thereby, a proper consideration when determining reasonableness of the
delay.
¶13 On appeal, the State argues that the delay was reasonable under the circumstances,
noting that an initial probable cause determination had been made by the Justice Court, that
5
Robison had been advised of his rights, that an attorney had been appointed, bail set, and that
Robison remained incarcerated because he could not make bail, not because the State
delayed in filing an information, thus undermining Robison’s claim to have been prejudiced.
¶14 However, the reasonableness argument presented by the State on appeal was not
presented in District Court. There, the State only offered an assertion that the District
Court’s ten-day rule was improper. Although that was assertion was correct, the State
nonetheless failed to offer any evidence whatsoever from which the District Court could
determine that the time taken to file the information was reasonable under the circumstances.
In sum, the State simply failed to contest the issue of reasonableness.
¶15 Consequently, while the District Court began its analysis improperly by applying a
ten-day rule, we cannot say that it abused its discretion in determining that the time taken to
file the information was unreasonable for purposes of § 46-10-105, MCA. The court found
that Robison had been arrested on December 1, that he appeared in Justice Court on
December 3, that he had been incarcerated since his arrest, and that this thirteen-day period
of incarceration was prejudicial to Robison. The State’s argument on appeal may well have
prevailed in the District Court, but it was not made there. The District Court was left to
determine if the delay in filing the information was reasonable without any facts from the
State explaining why the delay occurred or was necessary. Therefore, we conclude that the
District Court did not abuse its discretion in determining that the delay was not reasonable.
“[A] determination of a ‘reasonable time’ pursuant to § 46-10-105, MCA, is within the
discretion of the district court.” McElderry, 284 Mont. at 370, 944 P.2d at 233.
6
¶16 We affirm.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
7