No. 54-17 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.984 

STATE OF MOEJTANA, 

Plaintiff and Respondent, 

-vsMATTIlEW PAUL HERNANDEZ, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sandra K. Watts argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay Smith argued, Asst. Atty. General, Helena 

J. Fred Bourdeau, County Attorney, Great Falls, 

Moritana; Antonia Marra argued, Deputy County AttySubmitted: June 8, 1984 

Decided: November 1, 1.9 84 

Filed: RUV - r 1984 

Clerk 
Mr. Justice Da.nie1 J. Shea delivered. the Opinion of the 

Court. 

Defendant Matthew Hernandez appeals his conviction for 

felony theft (receiving stolen property) following a jury 

trial in Cascade County District Court. He also appeals the 

order compelling restitution for charges that had been 

dismissed. We reverse the con~~iction and the charges are 

dismissed. 

Defendant pleaded guilty to burglary and theft of coins 

from a Great Falls residence. Based on a plea agreement, 

other charges against him were dismissed and restitution was 

not a factor in the dismissal. of the charges. While on 

probation, defendant sold some of the coins he had previously 

stolen, and for which he had been convicted of theft. The 

prosecutor again charged defendant with theft under the same 

theft statute. This time, however, the charge was under 

subsection (b) of section 45-6-301 (3) , MCA--receiving stolen 

property. Along with the felony charge of receiving stolen 

property, defendant was also charged with two unrelated 

counts of felony burglary and misdemeanor theft. 

Defendant unsuccessfully moved to have the receiving 

stolen property charge dismissed on the ground of double 

jeopardy and on the statutory ground that it failed to state 

an essential element of the offense--that the property was 

stolen by someone else. Defendant also moved to sever the 

trial so that the receiving stolen property charge would be 

tried separately from the unrelated charges of felony 

burglary and misdemeanor theft. The jury acquitted defendant 

of the felony burglary and misdemeanor theft charges but 
convicted defendant of receiving the same coins he had 

already pleaded guilty to stealiny. 

In sentencina defendant for receiving stolen property, 

the trial court also imposed restitution for several charges 

that had been dismissed when defendant initially pleaded 

guilty to stealing the coins. The restitution sum was set at 

$5,029.95. 

Defendant contends that the receiving stolen property 

conviction cannot stand because it violates the double 

jeopardy provisions of our United States and Montana 

Constitutions, and because the State actually did not charge 

an offense within the contemplation of section 45-6-301(3) , 

MCA. Defendant further contends that it was reversible error 

for the trial court to order the charges to be tried 

together. Finally, defendant contends the restitution order 

for the dismissed charges is improper. We reverse the 

conviction on the double jeopardy ground as well as statutory 

grounds and therefore the improper joinder and restitution 

issues need not be discussed. 

The conviction for theft of coins and the later 

conviction for possessing those same coins, clearly arose 

from the same transaction. The second conviction violates 

our constitutional protection against. double jeopardy, Art. 

11, § 25, 1972 Mont. Const. The two convictions stemmed from 

the same i-nitial taking of the silver dollars in July 1981. 

Defendant pleaded guilty in January 1983, to stealing the 

silver dollars, and the constitutional prohibition against 

double jeopardy was violated when he was convicted in July 

1983 of theft, the charge being couched in terms of receiving 

stolen property. 
Contrary to the State's arguments, State v. LaMere 

(Mont. 1983), 658 P.2d 396, 40 St.Rep. 110 does not permit a 

charge such as the one here. The issue in LaMere was whether 

one who had received stolen property could give 

uncorroborated testimony against one who was charged with 

stealing that property. We held it permissible because theft 

of goods by one defendant and receipt of those stolen goods 

from another defendant are separate crimes. For purposes of 

the double jeopardy provision of our own constitution, the 

offenses as charged here were clearly for the same offense. 

Reversal is also required because the charge against 

defendant failed to state an offense. Section 45-6-301(3), 

MCA, provides: 

"(3) A person commits the offense of theft when he 

purposely or knowingly obtains control over stolen 

property knowing the property to have been stolen 

by another and: 

" (b) purposely or knowingly uses, conceals, or 

abandons the property in such manner a-s to deprive 

the owner of the property;" 

This statute, adopted from requires proof that the 

property must have been stolen by someone other than the 

receiver. Here the charge essentially was that defendant 

received stolen property from himself. Defendant was charged 

with ". . . purposely or knowingly obtaining control over 

stolen property,. . . knowing the property to have been 

stolen 1111 Matt Hernandez,. . . [the defendant here]." In 

People v. Berg (1968), 91 Ill.App.2d 166, 234 N.E.2d 400, the 

Illinois court set forth the elements to prove receipt of 

stolen property, one of them being a requirement that the 

property was stolen by a person other than the one charged 

with receiving the property. Applied here, the defendant 
could not be convicted of stealing the coins, and later be 

convicted of receiving those coins from himself. 

The judcpent of conviction is reversed and the charges 

ordered dismissed. 

We Concur: 

~h.4dcC %&~tp~& 

Chief Justice 

Mr. Justice L. C. Gulbrandson dissents and will file a written 

dissent later.