DA 06
- 0739 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 69
STATE OF MONTANA, Plaint iff 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 Gallat in, Cause No. DC
- 20 06
- 117B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jim Wheelis, Chief Public Defender , Shannon L. McDonald , Assistant Public De fe nder , Helena, M ontana For Appellee: Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney

General, Helena, Montana Marty Lambert, Gallat in Count y Attorney, Bozeman, Montana
Submitted on Briefs: October 31 , 2007 Decided: February

26, 2008 Filed:

__________________________________________ Clerk February 26 20082

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 hismotion to dismiss criminal charges originally filed against him in Gallatin County Justice Court. B arron argued before the District Court that the pending charges should be dismissed on double jeopardygrounds. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND ¶2 On the evening of August 31, 2005, Barron crashed his car on Blackwood Road in Gallatin Countyand was picked up by a friend before law enforcement officials could arrive on the scene. L aw enforcement was notified of the crashand Barron wasl ocated 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 Se ptember 15, 2005, Barron appeared in Gallatin County Justice Court and pled not guilty to the charges. A jury trial was set for Feb ruary 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 t o change his plea, and instead requested a bench tri al. B ased on conversations between3

Barron’s attorney and the prosecuting attorney, the presiding justice of the p eace thought that the bench tri al would be an “abbreviated” bench trial designed to get the case through Justice Court as quic kly as possible so that Barron could then receive a de novo trial inD istrict Court. The j ustice of the p eace surmised that such a proceeding would take approximately one hour, and that the Statewould 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 mo ments into the questionin g of this witness. This surprised the presiding j ustice of the p eace, because he anticipated there would be little or no objectionfrom Barron’s attorney. As the trial proceeded, Barron’s attorney continued to lodge objections. When Barron’s attorney ob jected to the State’s admission of a written statement from an unavailable witness , the prosecuting attorney appeared surprised as well. These circumstances led the j ustice of the p eace to believethat he had miscalculated the nature of, and the time required for, the bench trial, and that the proceedings would not be quickly resolved. C oncluding that neither party was ready for
a more full
-blown proceeding, the j ustice of the p eace decided to continue the trial until another date when both p arties were more fully prepared, and more time could be allotted for the trial. ¶5 Barron’s attorney objec ted 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 j ustice of4

the p eace described the circumstances surrounding the ordering of this continuance as follows: Based on the conduct of [Barron’s] counsel
. . . it i s 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. Aj ury had been waived; witnesses were not excluded from the courtroom; the date was set on two days notice; and the purpose of the proceeding wasto avoid entrance of a guilty plea in order to preserve the Defendant’s right of appeal de novoto 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 St ate time to subpoena the necessary witnesses. ¶6 The following day, Barron’s attorney submitted amotion for a substitution of judge and a motion to dismiss the charges against Barron on double jeopardygrounds. The Justice Courtdenied the motion s . Whenthe proceedings c ontinued o n 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 c onviction 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 dis miss 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 J eopardyClause of the Fifth Amendment to the United States Constitution
. O n September 22, 20 06, the District Court held a5

hearing on his motion. O n 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 C ourt. N ormally, an appeal of this n ature would not be ripe for adjudication by this C ourt b ecause the District Court had not yet rendered a final judgment of conviction
. S ection 46
- 20
- 104 (1) , MCA. However, this case falls intoa
narrow exception to this rule
. A s 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 def endant rather than curing them
. . . .” Schillinger, ¶ 16( citing State v. Barker, 260 Mont. 85, 92, 858 P.2d 360, 364 (1993)). We conclude that where th e challenge before us i s one made on double jeopardygrounds, we will accept an interim appeal for the sole purpose of considering the merits of the defendant’s double jeopardyc laims. 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 wh en it denied Barron’s motion to dismiss the charges against him on d ouble jeopardygrounds ? STANDARD OF REVIEW6

¶10 The grant or denial of a motion to dismiss in a criminal case present s a questionof law which we review de novoin order to determine whether the district c ourt’s conclusions of law were correct. State v. Py ette , 2007 MT 119, ¶ 11, 337 Mont. 265, ¶ 11, 159 P.3d 232, ¶ 11. O ur 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 hisc onstitutional rights against double jeopardy
. The D istrict Court concluded that jeopardy did attach during the March 15 bench trial, but that thetrial 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 i s defined as a “reexamination of the issue in the same court before another jury after a verdict or finding has been rendered.” S ection 46
- 1
- 201(13), MCA. F urther, the District Court cited to cases from a number o f jurisdictions to support the proposition that the length of thec ontinuance 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. Barrona sserts the Justice Court vi olated his rights against double jeopardyb yo rdering ac ontinuanceo n March 15 and essentially conducting a second trial on April 11
. B arron argues it w as7

improper for the Justice Court to stop the March 15 proceedings because both parties stated they were ready to proceed. Barron ma intains that when the Justice Court decided to continuethe 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, becaus e “[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 thel awful 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 occasion s. Instead the St ate maintains that “B arron’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 th e same offense. ” Barker, 260 Mont. at 90, 858 P.2d at 363 ( quotations omitted)
. A s 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 haz ards 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) (quotation so mitted, alteration in original)
. S tated differently, the guarantee against double jeopardypro vides “protection against a separate prosecution for the same offense after acquittal, protection against a second prosecution for the same offense after8

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] s worn by the Justice of the Peace. O nce jeopardy attache[s] any retrial for the same of

fense 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 vio late his rights against d ouble 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 “interest s of justice,” as allowed per § 46
- 13
- 202(2 ), MCA
. (S ee ¶ 5). As recently noted by the Colorado Court of Appeals “[b] ecause a midtrial continuance or recess does not ‘end’ aproceeding, most authorities recognize that it does not exposeadefendant to ‘double’ j eopardy. ” People v. Valencia , 169 P.3d 212 , 222 (Co lo . 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)). F urthermore, 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 “newtrial” per § 46
- 1
- 201(13), MCA; therefore Barron was not subject to a second or succes sive trial on the underlying charges. The Justice Court did not issue any findings or reachaverdict as to Barron’s guilt at the March 15 proceeding , nor did the State usethe continuance to encourage the9

j ustice of the p eace 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 l eft off once the bench trial continued o n April 11. Additionally, there was not an empanelment o f a new jury or trier of fact; the same j ustice of the p eace presided o ver 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 ca se decided by the originally em paneled 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 c ase. While we appreciate the demands of the Justice Court’s workload, we too are bewildered at the existence of “abbreviated,” “stipulated,” or “skeletal” trials. N either 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 char ge an individual with a criminal offense. See e.g. , Mont. Const. Art. I I, Sections 17, 24, 25, and 26. CONCLUSION ¶18 For these reasons, we affirm the District Court’s denial of Barron’s mo tion to dismiss.10 /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 s atisfied 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. Ia gree 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. M ont. Const. art. VII, § 4(2) (“The district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law.”). S hort
- circuiting this legal process by us e of sham proceedings simply breeds disrespect for the law and imposes additional work on the district courts and this Court. This case

—a relatively11

straight
- forward DUI case
—is a perfect example. The sham trial here resulted in additional proceedings inthe 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 denovo 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