THE STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD WAYNE BERGER, Defendant and Appellant.
No. 93-032.
SUPREME COURT OF MONTANA
Decided July 15, 1993.
259 Mont. 364 | 856 P.2d 552 | 50 St. Rep. 836
Submitted on Briefs June 17, 1993.
JUSTICE NELSON delivered the Opinion of the Court.
This is an appeal from the Twelfth Judicial District Court, Hill County, wherein the appellant, Richard Wayne Berger, pled guilty to the offense of criminal sale of dangerous drugs in violation of
For purposes of this appeal, the parties have entered into an agreed statement of facts, as follows:
- Shortly after 8 p.m., on April 22, 1992, Hill County Sheriff‘s deputies monitored a sale of dangerous drugs by Richard Wayne Berger to an informant wearing an electronic transmitting device.
- The next day, April 23, 1992, shortly before midnight, officers executed a search warrant at Berger‘s house.
- Berger was found to be in possession of small amounts of marijuana and, at 12:15 a.m. on April 24, 1992, he was arrested and charged with two counts of possession of dangerous drugs (marijuana) in violation of
MCA § 45-9-102 . - On April 24, 1992, Berger appeared in justice court and pled guilty to the two possession charges.
- The information charging Berger with criminal sale of dangerous drugs for the April 22, 1992 sale was filed in the district court on July 28, 1992.
- The parties agree that the April 22, 1992 drug sale and the April 24, 1992 possession charges were not a part of the “same transaction” as defined in
MCA § 46-1-202(23) .
Appellant Berger contends that the facts of this case fit within the provisions of
Section 46-11-503, MCA, is the Montana “double jeopardy” statute. In pertinent part, that section provides as follows:
46-11-503. Prosecution based on same transaction barred by former prosecution. (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is barred if:
(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated[.]
Section 46-11-503, MCA, was originally enacted in 1973 as § 95-1711(3), RCM (1947), and expressly applied only to prosecutions based upon the same transaction. See Sec. 6, Ch. 513, L. 1973.
Prior to amendments adopted by the legislature in 1991, the statute, in pertinent part, provided as follows:
46-11-503. When prosecution based on same transaction barred by former prosecution. If the offenses were known to the attorney prosecuting upon sufficient evidence to justify the filing of an information or the issuance of a warrant of arrest and were consummated prior to the original charge and if the jurisdiction and venue of the several offenses lie in a single court, a prosecution based upon the same transaction as a former prosecution is barred by such former prosecution under the following circumstances: ... (Emphasis added).
The 1991 amendments to
While there is no specific discussion in the legislative history pertaining to the amendments to the code section at issue, it is instructive to note, however, that at the House Judiciary Committee hearing on March 8, 1991, with respect to Senate Bill 51, Robert Dechamps III, Chairperson of the Montana Criminal Procedure Committee stated that the objective of the bill was to streamline, codify, unify and consolidate procedural rules of criminal procedure that had been adopted by the courts over the years that did not exist in statute. “... [M]ost of what the committee did really didn‘t change anything. The committee streamlined and codified the rules. Most of the bill is existing law.” See minutes of hearing on SB 51, House Judiciary Committee, March 8, 1991, p. 6.
Moreover, the 1991 Commission Comments note that the new subsections (1)(a) and (1)(b) “... preserve the 1987 code but eliminate confusing and unnecessary provisions.”
Neither the legislative history nor the Commission Comments reveal that the legislature intended to substantively change the application of
The dissent argues that the majority has inserted into
New subsection (2) of the statute provides that “[a] prosecution based upon the same transaction as a former prosecution is not barred under subsection (1)(d) when: ... .” We are required to avoid any statutory interpretation that renders any sections of the statute superfluous and does not give effect to all of the words used. Central Montana Elec. v. Adm‘r of Bonneville Power (9th Cir. 1988), 840 F.2d 1472, 1478. If subsection (1) does not continue to pertain to prosecutions based upon the same transaction, then the language in subsection (2) making reference to such prosecutions is superfluous.
Furthermore, in amending the title of
Taking into consideration the general intent of the legislature to make procedural rather than substantive changes in the law by its adoption of the 1991 amendments to the criminal procedure code, and the above mentioned rules of construction, we hold that
In this case the parties have agreed, and the record reflects, that the appellant‘s prosecution of criminal sale of dangerous drugs arose out of a transaction separate from that involving his prosecution for possession of dangerous drugs. Accordingly, based upon our construction of the statute,
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.
JUSTICE TRIEWEILER dissenting.
I dissent from the majority opinion. All of the facts which led to defendant‘s arrest, prosecution, and conviction for the sale of dangerous drugs pursuant to
The majority has held otherwise by inserting into
In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.
In departing from the current clear language of the statute which controls the outcome of this case, the majority has based its decision on its contention that the Legislature did not mean to say what it clearly did say when it amended
In White v. White (1981), 195 Mont. 470, 473-74, 636 P.2d 844, 845-46, we held that:
The intention of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. Haker v. Southwestern Railway Co. (1978), 176 Mont. 364, 578 P.2d 724; Montana Assn. of Underwriters v. State of Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the language of a statute is plain, unambiguous, direct and certain there is nothing left for the court to construe. Doull v. Wohlschlager (1963), 141 Mont. 354, 377 P.2d 758; National Electric Contractors Assn. v. State Board of Education (1960), 137 Mont. 382, 352 P.2d 258; Vaughn & Ragsdale Co. v. State Board of Equalization (1939), 109 Mont. 52, 96 P.2d 420. The function of the court in construing a statute is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted.
Section 1-2-101, MCA . In short, it is simply the duty of the Supreme Court to construe the law as it finds it. Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660, and cases cited therein.
In State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333, we held that “[t]here is simply no reason for the use of legislative history to construe a statute where the language is clear and unambiguous on its face.”
Even more recently, in Dorn v. Board of Trustees of Billings School District (1983), 203 Mont. 136, 144, 661 P.2d 426, 430, we held that:
The primary tool for ascertaining intent is the plain meaning of the words used. The Court properly refers to legislative history only when intent cannot be determined from the content of the statute. The instant statute does not necessitate such an inquiry.
There is nothing unclear about
For these reasons, I dissent from the majority opinion.
JUSTICE HUNT joins in the foregoing dissent.