571 P.2d 87 | Mont. | 1977
No. 13786
IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Appellant, -vs- FRANK COLE, JR., Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judqe presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Arthur W. Ayers, Jr., argued, County Attorney,
Red Lodge, Montana For Respondent : Kampfe and Perhacs, Red Lodge, Montana D. Frank Kampfe argued, Red Lodge, Montana
Submitted: September 26, 1977 Decided : ' J C i 2 6 1977 M r . Chief J u s t i c e Paul G. H a t f i e l d d e l i v e r e d t h e Opinion of t h e Court.
The Carbon County a t t o r n e y charged defendant w i t h f o u r c o u n t s of o f f i c i a l misconduct under s e c t i o n 94-7-401, R.C.M. 1947. Defendant moved t o d i s m i s s t h e f o u r count Information. The d i s t r i c t c o u r t g r a n t e d t h e motion t o d i s m i s s Count I and denied t h e d i s m i s s a l of Counts 11, 111, and I V . The Carbon County a t t o r n e y a p p e a l s t h e d i s m i s s a l .
On January 20, 1977, t h e Carbon County a t t o r n e y a p p l i e d t o t h e d i s t r i c t c o u r t f o r l e a v e t o f i l e an I n f o r m a t i o n c h a r g i n g d e f e n d a n t w i t h f o u r c o u n t s of o f f i c i a l misconduct w h i l e chairman of t h e Carbon County Board of County Commissioners. The county a t t o r n e y supported h i s a p p l i c a t i o n w i t h an a f f i d a v i t wherein he s e t f o r t h v a r i o u s f a c t s t e n d i n g t o e s t a b l i s h p r o b a b l e c a u s e f o r b e l i e v i n g defendant committed t h e o f f e n s e s . The c o u r t g r a n t e d l e a v e t o f i l e t h e Information.
Count I of t h e Information charged t h a t d e f e n d a n t , i n h i s o f f i c i a l c a p a c i t y , had knowingly performed an a c t which he knew was p r o h i b i t e d by law ( s e c t i o n 16-1803, R.C.M. 1947) when he e n t e r e d i n t o a c o n t r a c t t o purchase road machinery from A l l i e d Equipment Company f o r a sum i n e x c e s s of $10,000 w i t h o u t f i r s t p u b l i s h i n g a n o t i c e c a l l i n g f o r b i d s .
On February 1 4 , 1977, defendant f i l e d t w o motions t o d i s m i s s . I n t h e motion e n t i t l e d ''MOTION TO DISMISS" d e f e n d a n t a s s e r t e d t h a t Count I f a i l e d t o c h a r g e an o f f e n s e because s e c t i o n 16-1803 p e r t a i n s o n l y t o t h e "county governing body" qnd n o t t o an i n d i v i d u a l commissioner, such a s d e f e n d a n t . I n h i s motion e n t i t l e d "MOTION TO DISMISS - # 2 " , d e f e n d a n t a l l e g e d t h e a f f i - d a v i t s he submitted i n s u p p o r t of t h a t motion showed he d i d n o t commit an o f f e n s e .
Defendant and t h e A l l i e d Equipment Company salesman and p r e s i d e n t swore i n t h e a f f i d a v i t s accompanying "MOTION TO DISMISS - # 2 " t h a t no c o n t r a c t had been e n t e r e d i n t o by d e f e n d a n t with ~llied, as alleged in the Information's Count I. The affiants all asserted that, although defendant had signed an order form, the purpose of the form was to allow the sales- man to order the equipment to county specifications of the equipment might be available when the county accepted equip- ment bids. The affiants stated the form in no way bound Carbon County to the purchase of the machinery. Defendant and the other two county commissioners stated in affidavits that the commissioners published a call for bids in the February 26, March 4 and March 11, 1976, Carbon County News and did not accept Allied Equipment Company's bid until the regular meeting of the commissioners on March 11, 1976.
The Carbon County attorney submitted no counter-affi- davits and offered no other proof to rebut the sworn statements in the affidavits submitted by defendant. On March 7, 1977, the district court ordered that Count I of the Information be dis- missed, without setting forth the reasons for the dismissal.
The issues on appeal are whether a trial judge may dis- miss a criminal case prior to trial over the objection of the prosecuting attorney, and, if he may, whether the trial judge in this case followed the proper procedure in dismissing Count I.
Appellant state of Montana notes that the district court did not specify the basis for its dismissal of Count I, and asserts that either ground for dismissal advanced by defendant was insufficient. The state argues the proscription in section 16-1803(1), R.C.M. 1947, against a county governing body enter- ing into certain contracts without first publishing a notice calling for bids, applied to each county commissioner individually, as well as to the commissioners as a body. Appellant maintains dismissal for the reason that section 16-1803(1) did not apply to defendant as an individual was therefore incorrect. Appellant asserts that neither could the judge dismiss Count I on the basis of the affidavits defendant submitted with his "MOTION TO DISMISS - # 2 " . The affidavits went directly to the general issue to be determined at trial, that of whether defendant had actually entered into an unauthorized contract. The state contends that issue is a question to be decided by the jury at trial and not by the judge prior to trial. As the state notes, section 95-1701, R.C.M. 1947, which sets forth the de- fenses and objections which a defendant may raise before trial, allows motions only for "Any defense or objection which is cap- able of determination without the trial of the general issue * * *."
Unlike the defense of entrapment raised by pretrial motion in
State ex rel. Hamlin v. ~istrict Court, 163 Mont. 16, 515 P.2d 74 (1973), defendant's defense in his "MOTION TO DISMISS - # 2 " went squarely to the general issue of existence or nonexistence of a contract, and was, therefore, not authorized by section 95- 1701.
The judge could, however, for the reason there were insufficient facts to bring defendant to trial, dismiss Count I of the Information under section 95-1703, R.C.M. 1947, which provides "The court may * * * on its own motion * * * and in furtherance of justice, order an * * * information * * * to be dismissed * * *." The defendant in State ex rel. Forsythe v.
Mont . , 558 P.2d 647, 33 St.Rep.1350 (1976), was Coate, also charged with official misconduct, and sought to dismiss the charge. This Court held the district judge in Forsythe had the authority under section 95-1703 to dismiss the indictment where he was thoroughly familiar with the facts underlying the alleged offense. The motion to dismiss by the defendant in Forsythe was in effect a motion requesting the court to exercise its discretion to dismiss a charge "on its own motion" and "in furtherance of justice". See: People v. Benson, 64 Cal.App.3d Supp. 10, 134 Cal.Rptr. 766 (1976).
The authority of the court to dismiss an Information under section 95-1703, however, is not unbridled. The court nay only dismiss the Information if dismissal is "in furtherance of justice". Section 95-1703 further requires "the reasons of the dismissal must be set forth in an order entered upon the minutes." If the reasons for dismissal are not set forth, this
judge Court has no basis to review whether the trial/exercised his dis- cretion to dismiss within the "in furtherance of justice" standard.
The "in furtherance of justice" standard, though not defined in section 95-1703, is not merely verbiage; rather, it requires that the court exercise its discretion to dismiss a criminal charge " * * * in view of the constitutional rights of the defendant and the interests of society * * *". State ex rel. Anderson v. Gile, 119 Mont. 182, 187, 172 P.2d 583 (1946). The California courts, interpreting the California Penal Code, sec- tion 1385, a section virtually identical to section 95-1703, R.C.M. 1947, have stated the factors which a trial court should consider before dismissing a case, either before trial or after a verdict, include weighing the evidence indicative of guilt or innocence, the nature of the crime involved, the length, if any, of the de- fendant's pretrial incarceration, and the possible harassment and burdens imposed upon the defendant by a trial. People v. Superior Court of Marin County, 69 Cal.2d 491, 72 Ca1.Rpt.r. 330, 446 P.2d 138, 147 (1968); People v. Ritchie, 17 Cal.App.3d 1098, 95 Cal.Rptr.462, 466 (1971).
Because the trial judge in this case did not set forth the reasons for dismissing Count I, we can only guess as to the rationale for the dismissal. If he dismissed the Count because he felt that an individual commissioner cannot violate section
16-1803, R.C.M. 1947, the rationale advance by defendant in his "MOTION TO DISMISS", the judge was incorrect. An individ- ual commissioner may be criminally liable for official miscon- duct under section 94-7-401(1) ( c ) , R.C.M. 1947, for entering into a contract for the purchase of road equipment in excess of $10,000 cost, without publishing notice calling for bids. Section 94-7-401 (1) (c) states:
"(1) A public servant commits the offense of official misconduct when, in his official capacity * * *
"(c) with the purpose to obtain advantage for
himself or another, he performs an act in excess of his lawful authority * * *."
Although it is true, as defendant maintains, that section
16-1803 allows only the county governing body as a unit to enter into such construction contracts, this section merely defines the scope of the commissionerst lawful authority. Any contract made by an individual board member without board approval is "an act in excess of his lawful authority", and a crime under section 94- 7-401 (1) (c) .
Defendant maintains that the affidavits he submitted with
his "MOTION TO DISMISS - # 2 " were uncontested by the state, clearly proved defendant had not entered into any contract, and warranted the judge in dismissing Count I "in the furtherance of justice".
Defendant asserts the judge was fully cognizant of the attendant facts of this case because the affidavits which defendant submitted with his "MOTION TO DISMISS - # 2 " were identi- cal to the affidavits he submitted in support of a motion for summary judgment which the judge previously granted in a civil case. Defendant maintains that the affidavits stood uncontroverted by any other evidence in the civil case, were part of the court record, and provided the judge with the basis on which to make an informed judgment to order dismissal of Count I of the criminal Information.
If these were the judge's reasons for dismissing Count I, he did not state them in the record. In an order filed March 9, 1977, the judge merely stated that "IT IS ORDERED that said motion to dismiss Count I be, and hereby is, granted." The judge had no authority under section 95-1701 to grant a defen- dant's motion to dismiss based on a defense which went to the general issue to be determined at trial. If the judge wishes to dismiss Count I of the Information on his own motion and in the furtherance of justice, under section 95-1703, he must set forth the reasons for the dismissal in an order entered on the minutes.
The order of dismissal is vacated and the case is re- manded to the district court for further proceedings consistent with this opinion.
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