No. 91-435
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
MONA LORRAINE HAMILTON,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable Maurice R. Colberg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena,
Montana; Kathy Seeley and Kimberly Kradolfer,
Assistant Attorneys General;
~hristine A. Cooke, Big Horn County, ~ a r d i n ,
Montana.
For Respondent:
James L. Vogel, Attorney at Law, Hardin, Montana.
Submitted on Briefs: December 4, 1991
JAN 141992 Decided: January 14, 1992
Filed:
CLERK
L ASUPREWEACOURT
.S?Z
OF
S T A S E OF MONTANA . .
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana appeals from an order of the District
Court for the Thirteenth Judicial District, Big Horn County,
dismissing three counts of official misconduct against Mona
Lorraine Hamilton. We affirm.
The issue is whether the official misconduct charges brought
against Hamilton were based on a continuing course of conduct so
that they were not barred by the one-year statute of limitation for
misdemeanors.
In April 1991, an information was filed against Hamilton, the
County Treasurer of Big Horn County, charging her with nine counts
of official misconduct in violation of 45-7-401, MCA. These
included charges of transferring vehicle registration fees into an
unauthorized "overage account;11removing cash from the "overage
account" for her own personal use, both with and without replacing
the cash with personal checks; replacing cash from the treasurer's
cash register with personal checks and then delaying processing of
the checks; and, without payment, issuing vehicle registration
certificates for vehicles belonging to her.
In July 1991, the State moved to dismiss six of the nine
counts against Hamilton on the grounds that they unnecessarily
duplicated other similar acts charged under the remaining counts.
That motion was granted. The defense moved to dismiss the
remaining three counts on the basis that all were barred by the
one-year statute of limitation set forth at 9 45-1-205(2)(b), MCA.
Although the State argued that the three remaining counts were
within exceptions to the one-year statute of limitation for
misdemeanors under 9 45-1-205(2)(b), MCA, the court disagreed and
granted the defense's motion to dismiss. The State appeals.
The three counts which the defense moved to dismiss were set
forth in the information as follows:
COUNT IV: OFFICIAL MISCONDUCT
On or about June 29, 1987, in Hardin, Big Horn
County, Montana, the Defendant committed the offense of
official misconduct when, in her official capacity as Big
Horn County Treasurer and with the purpose to obtain
advantage for herself or another, she performed an act in
excess of her lawful authority, in violation of Section
45-7-401, MCA. More specifically, the Defendant issued
a personal check in her name, placed that check in the
unauthorized "overage1'account maintained by the Big Horn
County Treasurer's Office, as described in Counts I, I1
and I11 above, and removed cash for her personal use.
COUNT VII: OFFICIAL MISCONDUCT
Between October 31, 1989, and February 27, 1991, in
Hardin, Big Horn County, Montana, the Defendant committed
the offense of official misconduct when, in her official
capacity as Big Horn County Treasurer and with the
purpose to obtain advantage for herself or another
performed an act in excess of her lawful authority in
violation [of section] 45-7-401, MCA, more specifically
the Defendant deposited a check in the cash register of
the Big Horn County Treasurer's Office and obtained cash
for her personal use.
[As noted in that portion of the affidavit in support of
motion for leave to file the information charging Count
VII, the alleged date of the offense in Count VII is
"approximately October, 1989." The reference to the date
of February 27, 1991, allegedly is the date the October
1989 check was repaid and, therefore, was not the
charging of an offense on February 27, 1991.1
COUNT IX: OFFICIAL MISCONDUCT
On approximately January 31, 1990, in Hardin, Big
Horn County, Montana, the Defendant committed the offense
of official misconduct when, in her official capacity as
Big Horn County Treasurer and with the purpose to obtain
advantage for herself or another, [she] performed an act
in excess of her lawful authority in violation [of sec-
tion] 45-7-401, MCA. More specifically, the Defendant
registered a vehicle belonging to her without paying
registration fees as required by law.
The sufficiency of charging documents is established by
reading the information together with the affidavit in support of
the motion for leave to file the information. State v. Longneck
(1981), 196 Mont. 151, 154, 640 P.2d 436, 438, aff'd after remand,
201 Mont. 367, 654 P.2d 977. The affidavit in support of the
motion for leave to file the information against Hamilton stated,
regarding Count IV:
A check issued in the Defendant's own name, dated June
29, 1987, in the amount of $50.00 was found in the
unauthorized "overage account". Clerks of the Big Horn
County Treasurer's office have stated that the $50.00
check has been in the "overage account" since approxi-
mately the date of the check. The Defendant has admitted
to Agent O'Brien that she removed $50.00 in cash from the
"overage account" in exchange for the $50.00 check. The
cash has never been returned, nor has the check been
turned over to a bank for payment.
The portion of the affidavit in support of the motion for leave to
file the information pertaining to Count VII provided:
In approximately October, 1989, a check issued from Rock
Hamilton, the Defendant's son, to the Defendant was
placed in the cash register in the Big Horn County
Treasurer's Office. The check, in the amount of $154.00,
was used by the Defendant to obtain cash from the
Treasurer's cash register. The check was presented to a
bank and was ultimately returned to the Big Horn County
Treasurer's Office indicating insufficient funds in the
account of the issuer. The same check was resubmitted to
the bank approximately three (3) times until on October
31, 1989, the bank refused to receive the check again.
The amount of the check remained unpaid by the Defendant
until February 27, 1991.
The affidavit in support of the motion for leave to file the
information stated concerning Count IX:
On approximately January 31, 1990, the Defendant directed
a clerk of the Big Horn County Treasurer's Office to type
a registration certificate forthe Defendant's 1986 Dodge
Lancer. Normally, at this time, such registrations were
printed and recorded on computer by the Big Horn County
Treasurer's Office. Such a methodology assured the
maintenance of a proper record of the receipt of regis-
tration fees. By typing the registration certificate on
a typewriter such a record was not kept. The typed
registration certificate indicatedthatthe Defendant had
paid $103.25 in registration fees. The records of the
Treasurer's office indicate that the Defendant never has
paid the registration fees associated with the registra-
tion certificate just described.
A prosecution for a misdemeanor must be commenced within one
year after the offense is committed. Section 45-1-205(2)(b), MCA.
That statute further provides, at subsection (6), that "[aln
offense is committed either when every element occurs, or when the
offense is based upon a continuing course of conduct, at the time
when the course of conduct is terminated. Time starts to run on
the day after the offense is committed." Although the information
filed against Hamilton did not allege a continuing course of
conduct, that is the argument made by the State on appeal.
Statutes of limitation in criminal matters are to be liberally
interpreted in favor of repose. Toussie v. United States (1970),
397 U.S. 112, 115, 9 0 S.Ct. 858, 860, 25 L.Ed.2d 156, 161, citing
United States v. Scharton (1932), 285 U.S. 518, 52 S.Ct. 416, 76
L.Ed. 917. A particular offense should not be construed as
continuing "unless the explicit language of the substantive
criminal statute compels such a conclusion, or the nature of the
crime involved is such that [the legislature] must assuredly have
intended that it be treated as a continuing one." Toussie, 397
U.S. at 115.
The substantive criminal statute here is 5 45-7-401, MCA:
(1) A public servant commits the offense of official
misconduct when in his official capacity he commits any
of the following acts:
. . .
(c) with the purpose to obtain advantage for himself or
another, performs an act in excess of his lawful authori-
ty -
The State concedes that the explicit language of this statute
does not compel a conclusion that the offense is a continuing one.
However, it argues that the nature of the offense is such that
legislative intent must have been to treat official misconduct as
a continuing offense. It contends that Hamilton's official
misconduct continued during the entire period she abused her
authority and failed to properly handle the funds entrusted to her
by the citizens of Big Horn County. It argues that this continuing
course of conduct was never terminated as to Counts IV and IX and
was only terminated as to Count VII in February 1991 when Hamilton
paid to the treasurer's office the amount of her son's bad check.
The State asserts that, therefore, prosecution of these three
counts is not barred by the one-year statute of limitation.
The State cites State v. Earl (1990), 242 Mont. 279, 790 P.2d
464. In that case, this Court held that violation of !j 87-2-509,
MCA, was a continuing offense. However, under that statute, a tag
provided by the Department of Fish, Wildlife, and Parks "shall be
kept attached to the carcass" of a game animal taken or killed in
Montana "so long as any considerable portion of the carcass remains
unconsumed." Section 87-2-509(1), MCA. That language concerning
the continuing duty to keep the tag attached to the carcass was the
basis for this Court's classification of the offense as continuing.
The State cites the provision of 5 45-1-205(3)(b), MCA, that
in a prosecution for theft involving a breach of fiduciary duty,
the limitation period is extended to one year after the prosecuting
officer becomes aware of the offense. Section 45-1-206(2), MCA,
which is also cited by the State, provides that the period of
limitation does not run during any period during which the offender
is a public officer and the offense charged is theft of public
funds while in public office.
Hamilton was not charged with theft involving a breach of
fiduciary duty or theft of public funds while in public office.
Although the legislature has seen fit to explicitly extend the
statute of limitation for those two offenses, as well as for
several others, e-g., 5 45-1-205(4) and (5), MCA, it has not seen
fit to extend the statute of limitation for the offense of official
misconduct.
An exception to a general statute of limitation cannot be
enlarged beyond that which its plain language imports, and whenever
the exception is invoked the case must unequivocally fall within
it. State v. Clemens (1910), 40 Mont. 567, 569, 107 P. 896, 897.
Under the circumstances, we cannot conclude that the offense of
official misconduct is of such a nature that the legislature "must
assuredly have intended that it be treated as a continuing one."
We hold that the charges against Hamilton are subject to the
general one-year statute of limitation for misdemeanor offenses.
Assuming the truth of the allegations in the information
against Hamilton and the affidavit upon which it is based, every
element of each offense in Counts IV, VII, and IX occurred more
than one year prior to the filing of the information. The order of
the District Court dismissing Counts IV, VII, and IX is therefore
affirmed.
We c o n c u r :
Justices
January 14, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
HON. MARC RACICOT, Attorney General
Kathy Seeley and Kimberly Kradolfer, Asst. Atty. Generals
Justice Building
Helena, MT 59620
Christine A. Cooke
Big Horn County Attorney
Drawer H
Hardin, MT 59034
James L. Vogel
Public Defender
210 West 2nd Street
Hardin, MT 59034
ED SMITH
CLERK OF THE SUPREME COURT
BY:
Deput
BP
STATE OF MONTANA