No. 54-17
I N THE SUPREME COURT O THE STATE OF M N A A
F O T N
1.984
STATE OF M E T N ,
OJA A
Plaintiff and R e s p o n d e n t ,
-vs-
MATTIlEW PAUL HERNANDEZ,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f C a s c a d e ,
The H o n o r a b l e J o h n McCarvel, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Sandra K. Watts a r g u e d , G r e a t F a l l s , Montana
F o r Respondent:
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
C l a y S m i t h a r g u e d , Asst. A t t y . G e n e r a l , H e l e n a
J . F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s ,
Moritana; A n t o n i a Marra a r g u e d , Deputy County A t t y -
Submitted: June 8 , 1 9 8 4
D e c i d e d : November 1, 1.9 8 4
Filed: RUV - r 1984
Clerk
Mr. Justice Da.nie1 J. Shea delivered. the Opinion of the
Court.
Defendant Matthew Hernandez appeals his conviction for
felony theft (receiving stolen property) following a jury
trial in Cascade County District Court. He also appeals the
order compelling restitution for charges that had been
dismissed. We reverse the con~~iction
and the charges are
dismissed.
Defendant pleaded guilty to burglary and theft of coins
from a Great Falls residence. Based on a plea agreement,
other charges against him were dismissed and restitution was
not a factor in the dismissal. of the charges. While on
probation, defendant sold some of the coins he had previously
stolen, and for which he had been convicted of theft. The
prosecutor again charged defendant with theft under the same
theft statute. This time, however, the charge was under
subsection (b) of section 45-6-301 (3), MCA--receiving stolen
property. Along with the felony charge of receiving stolen
property, defendant was also charged with two unrelated
counts of felony burglary and misdemeanor theft.
Defendant unsuccessfully moved to have the receiving
stolen property charge dismissed on the ground of double
jeopardy and on the statutory ground that it failed to state
an essential element of the offense--that the property was
stolen by someone else. Defendant also moved to sever the
trial so that the receiving stolen property charge would be
tried separately from the unrelated charges of felony
burglary and misdemeanor theft. The jury acquitted defendant
of the felony burglary and misdemeanor theft charges but
convicted defendant of receiving the same coins he had
already pleaded guilty to stealiny.
In sentencina defendant for receiving stolen property,
the trial court also imposed restitution for several charges
that had been dismissed when defendant initially pleaded
guilty to stealing the coins. The restitution sum was set at
$5,029.95.
Defendant contends that the receiving stolen property
conviction cannot stand because it violates the double
jeopardy provisions of our United States and Montana
Constitutions, and because the State actually did not charge
an offense within the contemplation of section 45-6-301(3) ,
MCA. Defendant further contends that it was reversible error
for the trial court to order the charges to be tried
together. Finally, defendant contends the restitution order
for the dismissed charges is improper. We reverse the
conviction on the double jeopardy ground as well as statutory
grounds and therefore the improper joinder and restitution
issues need not be discussed.
The conviction for theft of coins and the later
conviction for possessing those same coins, clearly arose
from the same transaction. The second conviction violates
our constitutional protection against. double jeopardy, Art.
11, § 25, 1972 Mont. Const. The two convictions stemmed from
the same i-nitial taking of the silver dollars in July 1981.
Defendant pleaded guilty in January 1983, to stealing the
silver dollars, and the constitutional prohibition against
double jeopardy was violated when he was convicted in July
1983 of theft, the charge being couched in terms of receiving
stolen property.
Contrary to the State's arguments, State v. LaMere
(Mont. 1983), 658 P.2d 396, 40 St.Rep. 110 does not permit a
charge such as the one here. The issue in LaMere was whether
one who had received stolen property could give
uncorroborated testimony against one who was charged with
stealing that property. We held it permissible because theft
of goods by one defendant and receipt of those stolen goods
from another defendant are separate crimes. For purposes of
the double jeopardy provision of our own constitution, the
offenses as charged here were clearly for the same offense.
Reversal is also required because the charge against
defendant failed to state an offense. Section 45-6-301(3),
MCA, provides:
"(3) A person commits the offense of theft when he
purposely or knowingly obtains control over stolen
property knowing the property to have been stolen
by another and:
" (b) purposely or knowingly uses, conceals, or
abandons the property in such manner a-s to deprive
the owner of the property;"
This statute, adopted from requires proof that the
property must have been stolen by someone other than the
receiver. Here the charge essentially was that defendant
received stolen property from himself. Defendant was charged
with ". . . purposely or knowingly obtaining control over
stolen property,. . . knowing the property to have been
stolen 1111 Matt Hernandez,. . . [the defendant here]." In
People v. Berg (1968), 91 Ill.App.2d 166, 234 N.E.2d 400, the
Illinois court set forth the elements to prove receipt of
stolen property, one of them being a requirement that the
property was stolen by a person other than the one charged
with receiving the property. Applied here, the defendant
could not be convicted of stealing the coins, and later be
convicted of receiving those coins from himself.
The judcpent of conviction is reversed and the charges
ordered dismissed.
We Concur:
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C
Chief Justice
Mr. Justice L. C. Gulbrandson dissents and will file a written
dissent later.