DA 06-0739

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 69

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

ALFREDO ANGELO-RIOS BARRON,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DC-2006-117B

Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Public Defender, Shannon L. McDonald, Assistant

Public Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss,

Assistant Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney, Bozeman, Montana

Submitted on Briefs: October 31, 2007

 Decided: February 26, 2008 

Filed:

__________________________________________

Clerk

February 26 2008
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Alfredo Angelo-Rios Barron (Barron) appeals from an order of the Gallatin 

County District Court denying his motion to dismiss criminal charges originally filed 

against him in Gallatin County Justice Court. Barron argued before the District Court 

that the pending charges should be dismissed on double jeopardy grounds. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On the evening of August 31, 2005, Barron crashed his car on Blackwood Road in 

Gallatin County and was picked up by a friend before law enforcement officials could 

arrive on the scene. Law enforcement was notified of the crash and Barron was located

and arrested shortly thereafter. As a result of the investigation into the crash, Barron was 

charged with the following offenses: driving under the influence, second offense; failure 

to carry proof of insurance; failure to register an out-of-state vehicle; failure to give 

notice of accident by quickest means; failure to remain at accident scene; obstructing a 

police officer; and operating a motor vehicle without interlock. On September 15, 2005, 

Barron appeared in Gallatin County Justice Court and pled not guilty to the charges. A 

jury trial was set for February 23, 2006. Three of the charges were subsequently

dismissed, leaving the charges for DUI, failure to register an out-of-state vehicle, 

obstructing a police officer, and operating a motor vehicle without interlock.

¶3 On February 10, 2006, Barron filed a motion for change of plea hearing and to 

vacate his jury trial. A change of plea hearing was later set for March 13, 2006. At the 

hearing, Barron’s attorney informed the Justice Court that Barron had decided not to 

change his plea, and instead requested a bench trial. Based on conversations between 
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Barron’s attorney and the prosecuting attorney, the presiding justice of the peace thought 

that the bench trial would be an “abbreviated” bench trial designed to get the case 

through Justice Court as quickly as possible so that Barron could then receive a de novo 

trial in District Court. The justice of the peace surmised that such a proceeding would 

take approximately one hour, and that the State would put on enough evidence within that 

time to establish Barron’s guilt. A bench trial was set for March 15, 2006.

¶4 After the bench trial was commenced, the State presented its first witness. 

Barron’s counsel began objecting moments into the questioning of this witness. This 

surprised the presiding justice of the peace, because he anticipated there would be little or 

no objection from Barron’s attorney. As the trial proceeded, Barron’s attorney continued 

to lodge objections. When Barron’s attorney objected to the State’s admission of a 

written statement from an unavailable witness, the prosecuting attorney appeared

surprised as well. These circumstances led the justice of the peace to believe that he had 

miscalculated the nature of, and the time required for, the bench trial, and that the 

proceedings would not be quickly resolved. Concluding that neither party was ready for 

a more full-blown proceeding, the justice of the peace decided to continue the trial until 

another date when both parties were more fully prepared, and more time could be allotted 

for the trial.

¶5 Barron’s attorney objected to this continuance, but was overruled by the Justice 

Court. The Justice Court then ordered a continuance until April 11, 2006, setting aside 

four hours for the trial. In an affidavit later submitted to the District Court, the justice of 
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the peace described the circumstances surrounding the ordering of this continuance as 

follows:

Based on the conduct of [Barron’s] counsel . . . it is my opinion that 

[Barron’s counsel] did not conduct the trial of March 15 in the manner in 

which she had indicated it would be conducted. A jury had been waived; 

witnesses were not excluded from the courtroom; the date was set on two 

days notice; and the purpose of the proceeding was to avoid entrance of a 

guilty plea in order to preserve the Defendant’s right of appeal de novo to 

the District Court. The defense mounted at the trial on March 15 was 

substantially more that I expected based upon the representations of 

counsel two days earlier. It appeared the State was not expecting such a 

vigorous defense and had been blind-sided. In the interests of justice, I 

continued the proceeding to allow the State time to subpoena the 

necessary witnesses.

¶6 The following day, Barron’s attorney submitted a motion for a substitution of 

judge and a motion to dismiss the charges against Barron on double jeopardy grounds. 

The Justice Court denied the motions. When the proceedings continued on April 11, 

Barron’s attorney again objected to the continuance, and was again overruled by the 

Justice Court. At the conclusion of the trial, Barron was convicted and sentenced, with 

the sentence suspended pending his appeal to the District Court.

¶7 On April 14, 2006, Barron filed an appeal of his Justice Court conviction to the 

Gallatin County District Court for a de novo trial pursuant to § 46-17-311, MCA. On 

August 22, 2006, after the District Court assumed jurisdiction, Barron filed a motion to 

dismiss the charges against him, arguing that the “second trial” in Justice Court on April 

11, 2006, had violated his rights against double jeopardy pursuant to Article II, Section 

25 of the Montana Constitution and the Double Jeopardy Clause of the Fifth Amendment 

to the United States Constitution. On September 22, 2006, the District Court held a 
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hearing on his motion. On October 25, 2006, the District Court denied his motion to 

dismiss and scheduled a pretrial conference for November 13, 2006. 

¶8 On November 1, 2006, Barron appealed the District Court’s denial of his motion 

to dismiss to this Court. Normally, an appeal of this nature would not be ripe for 

adjudication by this Court because the District Court had not yet rendered a final 

judgment of conviction. Section 46-20-104(1), MCA. However, this case falls into a

narrow exception to this rule. As we stated in City of Three Forks v. Schillinger, 2007 

MT 331, 340 Mont. 211, 173 P.3d 681, “there is no trial de novo if a second trial in 

district court would violate the prohibition against double jeopardy.” Schillinger, ¶ 16.

Under such circumstances, “a de novo trial would exacerbate the errors alleged by the 

defendant rather than curing them . . . .” Schillinger, ¶ 16 (citing State v. Barker, 260 

Mont. 85, 92, 858 P.2d 360, 364 (1993)). We conclude that where the challenge before 

us is one made on double jeopardy grounds, we will accept an interim appeal for the sole 

purpose of considering the merits of the defendant’s double jeopardy claims. 

Accordingly, we deem it appropriate to consider Barron’s appeal from the District 

Court’s order denying his motion to dismiss and address the merits of his double jeopardy

arguments, notwithstanding the fact that the District Court has not entered a final 

judgment of conviction. 

ISSUES

¶9 We state the sole issue on appeal as follows: Did the District Court err when it 

denied Barron’s motion to dismiss the charges against him on double jeopardy grounds?

STANDARD OF REVIEW
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¶10 The grant or denial of a motion to dismiss in a criminal case presents a question of 

law which we review de novo in order to determine whether the district court’s 

conclusions of law were correct. State v. Pyette, 2007 MT 119, ¶ 11, 337 Mont. 265, 

¶ 11, 159 P.3d 232, ¶ 11. Our standard of review for a question of constitutional law is 

plenary. State v. Anderson, 1998 MT 258, ¶ 6, 291 Mont. 242, ¶ 6, 967 P.2d 413, ¶ 6. 

DISCUSSION

¶11 When it denied Barron’s motion to dismiss, the District Court concluded the 

charges pending against Barron did not violate his constitutional rights against double 

jeopardy. The District Court concluded that jeopardy did attach during the March 15 

bench trial, but that the trial was properly continued until April 11. The District Court 

found that the March 15 bench trial was never terminated because there was no acquittal, 

mistrial, or conviction on that date. The District Court noted that this conclusion was 

consistent with the statutory definition of a “new trial” wherein this term is defined as a 

“reexamination of the issue in the same court before another jury after a verdict or 

finding has been rendered.” Section 46-1-201(13), MCA. Further, the District Court 

cited to cases from a number of jurisdictions to support the proposition that the length of 

the continuance did not violate Barron’s rights against double jeopardy. E.g., Matter of 

Hunt, 266 S.E.2d 385 (N.C. App. 1980); Webb v. Hutto, 720 F.2d 375 (4th Cir. 1983); 

State v. Jackson, 485 So.2d 630 (La. App. 4 Cir. 1986). 

¶12 Barron maintains the District Court’s conclusions are in error. Barron asserts the 

Justice Court violated his rights against double jeopardy by ordering a continuance on 

March 15 and essentially conducting a second trial on April 11. Barron argues it was 
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improper for the Justice Court to stop the March 15 proceedings because both parties 

stated they were ready to proceed. Barron maintains that when the Justice Court decided 

to continue the proceedings on the grounds that the parties were “not prepared,” the 

continuance did not serve the interests of justice as required under § 46-13-202(2), MCA, 

because “[b]oth parties stated they were ready to go to trial and should have been held to 

that statement.”

¶13 The State urges us to affirm the District Court. The State concedes that jeopardy 

attached on March 15, but asserts that the trial merely commenced on March 15 and was 

not terminated until April 11 due to the lawful continuance. The State notes that Barron 

was not convicted on March 15 and then retried on April 11, nor subject to multiple 

punishments on both occasions. Instead the State maintains that “Barron’s jeopardy was, 

and continues to be, singular.” 

¶14 The Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution and Article II, Section 25 of the Montana Constitution “provide that no 

person shall be twice put in jeopardy for the same offense.” Barker, 260 Mont. at 90, 858 

P.2d at 363 (quotations omitted). As the United States Supreme Court has stated, “[t]he 

constitutional prohibition against double jeopardy was designed to protect an individual 

from being subjected to the hazards of trial and possible conviction more than once for an 

alleged offense.” Burks v. United States., 437 U.S. 1, 11, 98 S. Ct. 2141, 2147 (1978)

(quotations omitted, alteration in original). Stated differently, the guarantee against 

double jeopardy provides “protection against a separate prosecution for the same offense 

after acquittal, protection against a second prosecution for the same offense after 
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conviction, and protection against multiple punishments for the same offense.”

Anderson, ¶ 7 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969)). In 

a bench trial in Justice Court proceedings “jeopardy attache[s] when the first State’s 

witness [is] sworn by the Justice of the Peace. Once jeopardy attache[s] any retrial for 

the same offense presents potential Double Jeopardy difficulties.” Barker, 260 Mont. at 

90, 858 P.2d at 363 (citing Crist v. Bretz, 437 U.S. 28, 98 S. Ct. 2156 (1978)). 

¶15 The District Court did not err in concluding that the pending charges against 

Barron do not violate his rights against double jeopardy under the United States or 

Montana Constitutions. As the District Court noted, the March 15 bench trial did not 

result in a mistrial, nor was it terminated and commenced anew on April 11. Instead, it 

was continued by order of the Justice Court in the “interests of justice,” as allowed per 

§ 46-13-202(2), MCA. (See ¶ 5). As recently noted by the Colorado Court of Appeals 

“[b]ecause a midtrial continuance or recess does not ‘end’ a proceeding, most authorities 

recognize that it does not expose a defendant to ‘double’ jeopardy.” People v. Valencia, 

169 P.3d 212, 222 (Colo. App. 2007) (citing, among others, 21 Am. Jur.2d Criminal Law 

§ 381 (1998); Holcomb v. State, 858 So.2d 1112, 1113-14 (Fla. 2 Dist. App. 2003)). 

Furthermore, Barron does not argue on appeal that the Justice Court abused its discretion 

in ordering the continuance. 

¶16 The April 11 proceeding did not constitute a “new trial” per § 46-1-201(13), 

MCA; therefore Barron was not subject to a second or successive trial on the underlying 

charges. The Justice Court did not issue any findings or reach a verdict as to Barron’s 

guilt at the March 15 proceeding, nor did the State use the continuance to encourage the 
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justice of the peace to reexamine evidence presented in the March 15 proceeding. Nor 

was Barron subjected to multiple punishments for the same offense. Instead, the Justice 

Court simply picked up where it left off once the bench trial continued on April 11. 

Additionally, there was not an empanelment of a new jury or trier of fact; the same 

justice of the peace presided over both proceedings. See Friedmann v. State, 172 P.3d 

831, 836 (Alaska App. 2007) (citing numerous authorities in support of the proposition 

that “a defendant’s right to have their case decided by the originally empaneled jury is a 

crucial aspect of the constitutional protection against double jeopardy . . . .”). Thus, the 

District Court correctly concluded that the charges against Barron do not violate his right 

against double jeopardy.

¶17 Finally, we wish to echo the District Court’s disapproval of the Justice Court 

proceedings in this case. While we appreciate the demands of the Justice Court’s 

workload, we too are bewildered at the existence of “abbreviated,” “stipulated,” or 

“skeletal” trials. Neither the Montana Constitution, nor the statutes governing Justice 

Court, provide for such judicial creatures. Instead, the Montana Constitution affords 

defendants their full panoply of rights without fail whenever the State chooses to charge

an individual with a criminal offense. See e.g., Mont. Const. Art. II, Sections 17, 24, 25, 

and 26. 

CONCLUSION

¶18 For these reasons, we affirm the District Court’s denial of Barron’s motion to 

dismiss. 
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/S/ PATRICIA COTTER

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

/S/ JIM RICE

/S/ JAMES C. NELSON

Justice James C. Nelson concurs.

¶19 I reluctantly join the Court’s Opinion because I am satisfied that the Justice of the 

Peace, the prosecutor and the defendant were all complicit in the “abbreviated bench 

trial,” “stipulated trial,” “skeletal trial” at issue. I agree with my colleagues that these 

sorts of sham trials should be disapproved. In such a trial, the State apparently submits 

just enough evidence for the trial court to render a quick guilty verdict to the end that the 

defendant can take an appeal for trial de novo in the District Court—where the “real trial” 

takes place. 

¶20 While the justice courts, prosecutors and defendants may find the trial/trial de 

novo process a duplicitous waste of time, that is the remedy provided by Montana’s 

Constitution. Mont. Const. art. VII, § 4(2) (“The district court shall hear appeals from 

inferior courts as trials anew unless otherwise provided by law.”). Short-circuiting this 

legal process by use of sham proceedings simply breeds disrespect for the law and 

imposes additional work on the district courts and this Court. This case—a relatively 
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straight-forward DUI case—is a perfect example. The sham trial here resulted in 

additional proceedings in the Justice Court; required a double jeopardy hearing and 

decision by the District Court, in addition to the proceedings involving Barron’s plea; and 

ultimately resulted in an appeal to this Court solely on the double jeopardy issue.

¶21 If the trial/trial de novo procedure has outlived its utility, then, as Article VII, 

Section 4(2), allows, the Legislature can provide “otherwise.” It is not the prerogative of 

the judiciary and officers of the court to short circuit the legal remedy that the 

Constitution requires.

¶22 I concur.

/S/ JAMES C. NELSON