*1
MONTANA,
STATE OF
Appellee,
Plaintiff and
BARRON,
ALFREDO ANGELO-RIOS
Appellant.
Defendant
No. DA 06-0739.
Submitted on Briefs October
February 26, 2008.
Decided
MT
JUSTICE COTTER delivered the of the Court. (Barron) Angelo-Rios Alfredo from order of the appeals denying Gallatin his motion dismiss criminal *2 charges originally County filed him in Gallatin Justice Court. argued Barron before the District Court that the pending chargеs grounds. should be dismissed on We affirm.
FACTUAL AND PROCEDURAL BACKGROUND evening August On the of Barron crashed his car on Blackwood Road in Gallatin picked up by and was a friend before law enforcement officials could arrive on the scene. Law enforcement was notified of the crash and Barron was located and shortly arrested thereafter. investigation As result of the into the crash, charged following Barron was with the offenses: driving under influence, the offense; second carry proof insurance; failure to of failure to register vehicle; an out-of-state give failure notice of acсident quickest means; scene; failure remain at accident obstructing a police officer; operating and a motor vehicle without interlock. On September appeared in Gallatin County Justice pled guilty charges. and A jury trial was set for 23,2006. February of Three the were chаrges subsequently dismissed, leaving DUI, charges the for register vehicle, failure to an out-of-state obstructing officer, a police and operating motor vehicle without interlock. February On change Barron filed a motion for of plea
hearing and to vacate of change plea hearing his trial. A was later 13,2006. set for March At the hearing, attorney Barron’s informed the change plea, that Barron had decided not to and instead requested bench trial. Based on conversations between attorney prosecuting attorney, Barron’s and the the presiding justice peace the that the trial an thought bench would be “abbreviated” designed get bench trial the case through quickly Justice Court as as possible so that Barron then a de could receive novo trial District justice Court. The of the such a peace surmised that would hour, approximately enough take one the State put would evidence guilt. within that time to establish Barron’s A bench trial was set for March commenced, presented After the bench trial was its first began objecting
witness. Barron’s counsel moments into the justice surprised presiding This of the of this witness. questioning objeсtion be little or no from anticipated he there would peace, because attorney attorney. proceeded, As the trial Barron’s Barron’s objections. attorney objected to the State’s lodge When Barron’s witness, of a written statement unavailable admission attоrney appeared surprised as well. These circumstances prosecuting had peace to believe that he miscalculated justice led the for, of, required the bench and that nature time Concluding be resolved. that neither quickly would not justice of the ready procеeding, for a more full-blown party was until date decided to continue the trial another when both peace fully more and more time could allotted parties prepared, were the trial. continuance, attorney objected to this but was overruled Court. The Justice Court then оrdered continuance Justice the trial. In an setting aside four hours for
until Court, peace to the District affidavit later submitted surrounding ordering the circumstances described as follows: continuance my opinion [Barron’s] on the conduct of counsel... is
Based 15 in the not conduct the trial of Mаrch [Barron’s counsel] did *3 it would be conducted. A in which she had indicated manner waived; were not excluded from the had been witnesses days notice; purpose and the courtroom; the date was set on two guilty plea in order proceeding to avoid entrance of was to right аppeal the de novo the District to Defendant’s preserve the trial on March was The defense mounted Court. representations substantially upon that I the expected more based was not days appeared It of counsel two earlier. In vigorous and had been blind-sided. such a defense expecting the I to allow justice, interests of necessary to witnesses. subpoena State time for a attorney submitted motion following day, Barron’s charges and a motion to dismiss judge substitution of The Justice Court denied jeopardy grounds. Barron on double 11, Barron’s continued оn When the motions. continuance, again overruled again objected and was attorney to the Barron was At the conclusion of Justice Court. by the sentenced, suspended pending with the sentence convicted District Court. appeal Court 2006, of his Justice appeal Barron filеd an On
conviction to the Gallatin District Court for de novo trial pursuant 46-17-311, 22, 2006, August MCA. On after the District assumed jurisdiction, Barron filed a motion to dismiss the him, charges against arguing that the trial” in “second 11, 2006, on April rights against had violated his double pursuant to Article Section 25 of the Montana Constitution and the the Fifth Jeopardy Double Clause of Amendment to the United States 22,2006, hearing On held September Constitution. on his motion. On October the District Court denied his pretrial motion dismiss and scheduled a conference for November 13, 2006. 1,2006, appealed On November District Court’s denial Normally, his motion to dismiss appeal Cоurt. of this ripe adjudication by
nature would this Court because the yet judgment District Court had not rendered a final of conviction. 46-20-104(1), However, Section MCA. this case falls into a narrow exception City to this rule. As we stated Three Forks v. Schillinger, 2007 MT 340 Mont. 173 P.3d “there is no trial de novo if a second trial in district cоurt would violate the prohibition against jeopardy.” double Sehillinger, 16. Under such circumstances, “a de novo trial alleged by would exacerbate the errors the defendant rather than ....” curing Schillinger, (citing them 16¶ (1993)). Barker, State 858 P.2d We conclude that the challenge where us before is onе made on jeopardy grounds, will accept we an interim appeal for the sole purpose of considering the merits of the defendant’s claims. Accordingly, we it appropriate deem appeal consider Barron’s denying District Court’s order his motion to dismiss and address the merits jeopardy arguments, of his double notwithstanding the fact that the District judgment Court has not entered a final of conviction.
ISSUES on We state sole issue Did appeal follows: the District Court err charges against when denied Barron’s motion to dismiss the him ? jeopardy grounds
STANDARD OF REVIEW dismiss criminal grant or denial of a to in a ¶10 motion case presents a de question law which we review novo order to determine whether district court’s conclusions of law were correct. 265, 11, 159 232, Pyette, State v. 2007 MT 337 Mont. P.3d ¶ ¶ 104 of constitutional law is question Our of review for a standard
¶ Anderson, MT 967 plenary. State v. 1998 ¶ ¶ P.2d 6.
DISCUSSION dismiss, the District Court When it deniеd Barron’s motion to against Barron did not violate charges pending concluded the against The District Court jeopardy. constitutional rights during the March 15 bench jeopardy concluded that did attach April until 11. The District properly but that the trial was trial was never terminated Court found that the Marсh 15 bench mistrial, date. no or conviction on that acquittal, because there was that conclusion was consistent with The District Court noted term is defined as statutory definition of “new trial” wherein this after in the same court before another “reexamination of the issue 46-1-201(13), MCA. rendered.” Sectiоn finding verdict or been Further, cases from a number the District Court cited to length jurisdictions support proposition to that rights jeopardy. did continuance not violate (N.C. Hutto, 1980); Hunt, App. 266 385 Webb v. Matter S.E.2d E.g., (La. (4th 1983); Jackson, App. 630 F.2d Cir. State v. 485 So.2d 1986). 4 Cir. Court’s conclusions are in error. maintains the District Barron rights against Court violated his
Barron asserts the Justice essentially on March 15 and by ordering continuance jeopardy April argues improper it was a second trial on conducting both stop proceedings to the March 15 because for the Justice Court to Barron maintains that when ready prоceed. were parties they stated grounds on the Justice Court decided to continue did not serve parties prepared,” were “not continuance that 46-13-202(2), MCA, because under required interests of to and should have ready go were to trial parties they stated “[b]oth held been stаtement.” Court. The State to affirm the District urges The State us trial March but asserts that the attached on
concedes that until 15 and was not terminated merely commenced on March that Barron was The State notes due to the lawful continuance. subject nor March 15 and then retried cоnvicted on maintains Instead the State on both occasions. multiple punishments be, was, singular.” and continues “Barron’s Fifth Amendment Jeopardy Clause of the The Double
105
United States Constitution and Article
Section 25 of the Montana
“provide
person
put
jeopardy
Constitution
that no
shall
twicе
in
for
90, 858
Barker,
(quotations
the same offense.”
P.2d at 363
omitted).
stated,
Supreme
As the United
Court
“[t]he
States
prohibition against
designed
jeopardy
constitutional
double
was
being subjected
an individual from
of trial
protect
hazards
more than
possible
alleged
conviction
once
offense.” Burks v.
(1978)
States.,
United
437 U.S.
98 S. Ct.
2147
(quotations
omitted,
original).
differently,
guarantee
alteration in
Stated
jeopardy
“protection against
separate
double
provides
prosecution
acquittal, protection
for the same offense after
against a
prosecution
conviction,
second
for the same offense after
protection against
punishments
multiple
for the same offense.”
Anderson,
(citing North
Pearce,
7
Carolina v.
395
S.
¶
U.S.
89 Ct.
(1969)).
2072
In a bench trial in Justice
proceedings “jeopardy
by
attache[s] when the first State’s witness [is] sworn
the Justice of the
Peace.
any
Once
retrial
attache[s]
for the same offense
potential
presents
Jeopardy
Barker,
Double
difficulties.”
260 Mont. at
(citing
Bretz,
charges against Barron not his rights against do violate jeopardy under the United or States Montana Constitutions. As thе noted,
District Court the March 15 bench trial did not in a result mistrial, nor itwas terminated and on April commenced anew Instead, it was continued by order of the Justice Court in the “interests 5). justice,” (See per 46-13-202(2), as allowed recently MCA. As § noted the Colorado Appeals Court of “[b]ecause midtrial сontinuance or recess does not ‘end’ a proceeding, most authorities recognize expose it not does a defendant jeopardy.” ‘double’ (Colo. 2007) People Valencia, v. 169 App. (citing, P.3d 222 among others, (1998); 21 Am. State, Jur.2d Criminal Law 381 Holcomb v. § (Fla. 2003)). 1112,1113-14 Furthermore, 858 So.2d 2 App. Dist. argue
does not on appeal that the Justice Court abused its discretion ordering in the continuance. per 11 did not constitute a “new trial”
46-1-201(13), MCA; subject therefore Barron not to a was second or underlying charges. successive trial The Justice Court did not any findings or guilt issue reach a verdict as to Barron’s at the March proceeding, encourage 15 nor did the State use continuance to justice peace presented of the to reexamine evidence in the March 15 subjected multiple punishments for the
proceeding. Nor was Barron Instead, picked up wherе left simply same offense. Additionally, continued on there was off once bench trial fact; or trier of the same empanelment not an of new State, See Friedmann presided proceedings. over both peace 2007) (Alaska (citing numerous authorities App. P.3d right that “a defendant’s to have their case support proposition of the originally empaneled jury aspect is a crucial decided ....”). Thus, protection against constitutional charges against that the Barron do correctly concluded right against jeopardy. violate his *6 of Finally, disapproval to echo the District Court’s we wish ¶17 appreciate proceedings in this case. While we workload, of Court’s we too are bewildered demands the Justice “abbreviated,” “stipulated,” of or “skeletal” trials. N either the existence Court, Constitution, Justice governing Montana nоr statutes Instead, judicial the Montana Constitution provide for such creatures. rights of without fail whenever panoply affords defendants their full offense. charge an individual with a criminal See the State chooses to 25, and 26. e.g., Mont. Const. Art. Sections
CONCLUSION denial of reasons, affirm the District Court’s For these we Barron’s motion to dismiss. LEAPHART, WARNER, concur. RICE and NELSON
JUSTICES concurs. JUSTICE NELSON reluctantly join because I am satisfied Opinion I the Court’s Peace, the defendant were all prosecutor Justice trial,” trial,” “skeletal “stipulated bench
complicit in the “abbreviated agree colleagues that thesе sorts sham my at issue. I with trial” apparently In disapproved. should be such trials quick render a enough evidence for the trial court just submits for trial appeal take an to the end that the defendant can guilty verdict place. trial” takes Court-where the “real de novo in the District may find the сourts, and defendants prosecutors While time, is the duplicitous novo waste process trial/trial de Const, VII, art. by Constitution. Mont. provided Montana’s remedy 4(2) (“The as trials inferior courts court shall hear appeals district law.”). by Short-circuiting legal provided unless otherwise anew disrespect for the proceedings simply breeds process use sham and this Court. on the district courts additional work imposes law and straight-forward This case-a DUI relatively perfect example. case-is a in The sham trial here resulted additional the Justice Court; required jeopardy hearing аnd decision the District Court, in the proceedings involving addition to plea; ultimately solely resulted in an to this Court appeal the double jeopardy issue. procedure then, If trial/trial de novo utility, outlived its VII, 4(2), allows,
Article Legislature provide Section can is prerogative judiciary “otherwise.” It not the theof and officers of the legal court to short circuit the remedy requires. that the Constitution I ¶22 concur.