NO. 93-113

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Appellant,

-vsGARY LEE BARKER,

Defendant and Respondent.

APPEAL FROM: District Court of the Twenty-first Judicial District,

In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

George H. Corn, Ravalli County Attorney, Gerald D.

Williams, Deputy Ravalli County Attorney, Hamilton,

Montana

For Respondent:

David E. Stenerson, Attorney at Law, Hamilton

Montana

Submitted on Briefs: July 20, 1993

Decided: August 24, 1993
Chief Justice J.A. Turnage delivered the Opinion of the Court.

The District Court for the Twenty-First Judicial District,

Ravalli County, vacated a justice court's ruling which found

appellant Barker guilty of reckless driving, on the grounds that

the defendant had not been charged with reckless driving. The

District Court further held that any retrial for the offense of

driving under the influence of alcohol would violate defendant's

constitutional protection against double jeopardy. The State

appeals. We affirm.

The issues are:

1 . Does a district court have authority to vacate a justice

court decision when the prosecution charged the defendant with

driving under the influence of alcohol, and the justice court found

the defendant guilty of reckless driving?

2 . Does a district court have authority to dismiss an appeal

from a justice court decision on the grounds that the appellate

issues are barred by the defendant's Fifth Amendment protection

against double jeopardy?

Following a February 8, 1992 accident on Highway 93 near the

Rustic Hut Bar in Florence, Montana, Ravalli County Sheriff's

officers arrested Gary Lee Barker and subsequently charged him with

driving under the influence of alcohol, in violation of 5 61-8-401,

MCA, and operating a motor vehicle without seatbelts in use, in

violation of § 61-13-103, MCA. Barker entered pleas of not guilty

to both charges and waived his right to a jury trial.

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The Ravalli county Justice of the Peace found Barker guilty of

the seatbelt violation and guilty of reckless driving, in violation

of § 61-g-301, MCA. In finding the reckless driving violation, the

Justice Court reasoned that reckless driving is a lesser included

offense of driving under the influence of alcohol.

The Justice Court denied Barker's motion to set aside the

judgment, and sentenced Barker accordingly. Upon Barker's motion,

the sentence imposed for reckless driving was stayed pending appeal

to the District Court. Barker paid a fine for the seatbelt

violation, and does not further challenge that charge.

Barker appealed to the District Court and then filed a motion

to dismiss the case. He argued that reckless driving is not a

lesser included offense of driving under the influence of alcohol,

and that a retrial on the original driving under the influence of

alcohol charge is barred by the double jeopardy protection provided

under the Fifth Amendment of the United States Constitution. The

State argued that unless Barker pleaded guilty under the provisions

of 5 46-12-204, MCA (plea alternatives), the District Court must

hold a trial de novo on the all the issues. - -

The District Court vacated the reckless driving charge:

dismissed the driving under the influence of alcohol complaint with

prejudice: and affirmed the seatbelt violation.

Does a district court have authority to vacate a justice court

decision when the prosecution charged the defendant with driving

under the influence, and the justice court found the defendant

3
guilty of reckless driving?

Our standard of review relating to conclusions of law is to

determine whether the tribunal's interpretation of the law is

correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,

474-75, 803 P.2d 601, 603.

Criminal justice in Montana is subject to the mandates of the

United States Constitution, the Montana Constitution, and statutory

law. The Sixth Amendment of the United States Constitution

guarantees accused defendants the right to be informed of the

nature and cause of the accusation. The Montana Constitution,

Article II, Section 24, similarly provides that an accused shall

have the right to demand the nature and cause of the accusation.

Section 46-11-401, MCA, provides:

The charge must be a plain, concise, and definite

statement of the offense charged, including the name of

the offense, whether the offense is a misdemeanor or

felony, the name of the person charged, and the time and

place of the offense as definitely as can be determined.

The charge must state for each count the official or

customary citation of the statute, rule, regulation, or

other provision of law that the defendant is alleged to

have violated.

The charge o:E driving under the influence of alcohol required

proof that the defendant had physical control of a vehicle while

under the influence of an intoxicating substance. Section 61-8-

401, MCA. A reckless driving charge requires proof that the

defendant operated a vehicle in willful or wanton disregard for the

safety of persons and property. Section 61-8-301, MCA. Clearly

the two charges are inapposite: reckless driving is not a lesser

included offense of driving under the influence of alcohol. Cf. 5

4
46-11-410, MCA (when same transaction establishes multiple

offenses, multiple charges are possible) and State v. Ritchson

(1981), 193 Mont. 112, 630 P.2d 234 (possible to charge and convict

defendant of multiple offenses when each offense requires at least

one separate element which distinguishes it from other charged

offenses).

By convicting Barker of reckless driving when the State did

not charge him with that offense, the Justice Court violated

Barker's constitutional right to due process of law. See U.S.

Const. amend. XIV; Art. II, 5 17, Mont.Const. The finding of guilt

should be set aside as Barker did not have notice of the nature and

cause of the offense. See State v. Copenhaver (1907), 35 Mont.

342, 89 P. 61 (judgment reversed on appeal after defendant was

charged with one crime and erroneously convicted of another).

After reviewing the record we conclude that the Justice Court

was in error when it convicted Barker of reckless driving. "It is

elementary that a party cannot be charged with one offense and

convicted of another independent offense." State v. Seiff (1917),

54 Mont. 165, 168, 168 P. 524, 524. We therefore affirm the

District Court's order vacating the reckless driving charge.

II

Does a district court have authority to dismiss an appeal on

the grounds that the charges are protected by the defendant's Fifth

Amendment protection against double jeopardy?

The burden of proof for overturning the District Court

decision is on the State, as the appellant. Whether to grant or
deny a motion to dismiss at the close of the State's case is.within

the sound discretion of the trial court and will not be disturbed

unless an abuse of that discretion is shown. State v. Laster

(1986) t 223 Mont. 152, 159-60, 724 P.2d 721, 726. As was stated in

Laster, "[i]n this case with regard to the dismissal of the cause

on grounds of double jeopardy, we adopt the usual standard that the

State has the burden to show abuse of discretion by the District

Court." Laster, 724 P.2d at 726.

The State argues that the District Court must hear the appeal

from the Justice Clourt, as provided by the Montana Constitution and

statutory law. Barker argues that a subsequent trial for driving

under the influence is barred by the constitutional protection

against double jeopardy.

The State refers to the Montana Constitution, Article VII,

Section 4(2), which states "[t]he district court shall hear appeals

from inferior courts as trials anew unless otherwise provided by

law." Construing that provision, the District Court especially

noted the "unless otherwise provided by law" language.

Additionally, the court referred to F, 3-5-303, MCA, which provides

for district court appellate jurisdiction over justice court

decisions "as may be prescribed by law and consistent with the

constitution."

The court then reviewed the constitutional double jeopardy

protection provided to all criminal defendants:

The Double Jeopardy clauses of the U.S. and the Montana

constitutions provide that no person shall be "twice put

in jeopardy" for the "same offense." U.S. Constitution,

6
Fifth Amendment, Montana Constitution, Article II,

Section 25. Since Benton v. Maryland, 395 U.S. 784

(1969), the Double Jeopardy clause of the Fifth Amendment

applies to the states via the Fourteenth Amendment as a

"fundamental right." In this bench trial case, j'eopardy

attached when the first State's witness was sworn by the

Justice of the Peace. [@g] CriSt v. Bretz, 437 U.S. 28

(1978). Once jeopardy attached, any retrial for the same

offense presents potential Double Jeopardy difficulties.

While it is true that a defendant's statutory remedy for appealing

* . a justice court decision is a trial de novo in district court, it - -

is also true that the constitutional protection against double

jeopardy forbids a retrial on charges of which a defendant has been

acquitted before a competent court which had authority and

jurisdiction to try the offense. Section 46-17-311, MCA; Art. II,

§ 25, Mont.Const. ("No person shall be again put in jeopardy for

the same offense previously tried in any jurisdiction") (emphasis

added).

The Justice Court is a court of competent jurisdiction. Art.

VII, 5 5, Mont.Const.; 9 46-2-202, MCA; $i 3-10-303, MCA. Jeopardy

attached when the State swore in its first witness in the Justice

Court. See Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57

L.Ed.2d 376. When the Justice Court first tried Barker for driving

under the influence of alcohol it instead found him guilty of

reckless driving, necessarily implying that there was insufficient

evidence to convict Barker of driving under the influence of

alcohol as a matter of law. Section 46-11-503(a), MCA ("There is

an acquittal whenever . . . there is insufficient evidence to

warrant a conviction"); see also Green v. United States (1957), 355

U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (defendant's jeopardy for
first degree murder came to an end when the jury found him guilty

of second degree murder).

Barker appealed the reckless driving conviction. The right to

appeal a justice court decision is purely statutory. State v.

Speith (1990), 244 Mont. 392, 394, 797 P.2d 221, 222, citing State

v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d 1337, 1338. A

defendant may appeal a justice court decision to the district

court, 5 46-17-311, MCA: the prosecution may only appeal a justice

court decision as provided under § 46-20-103, MCA. State v. Kesler

(1987), 228 Mont. 242, 245, 741 P.2d 791, 793.

We have previously stated that a defendant's exclusive remedy

for a conviction in justice court is an appeal to the district

court for trial de novo. Kesler, 741 P.2d at 793; Adair v. Lake

County Justice Court (1984), 213 Mont. 466, 692 P.2d 13 (Supreme

Court does not have appellate jurisdiction to review orders of the

justice court: appeal to district court for trial de novo is

defendant's exclusive remedy). This is the general rule for

defendants appealing convictions from justice court. The purpose

for a trial de novo is to provide defendant with a competent remedy

in a court of record.

An exception to the general rule exists, however, where a

defendant appeals a conviction for which he or she was not charged.

Barker was not charged with reckless driving; he was charged, and

acquitted, of driving under the influence of alcohol. When the

District Court was faced with the untenable position of trying

Barker again for driving under the influence of alcohol, it

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correctly held that to do so would violate Barker's constitutional

protection against double jeopardy. U.S. Const. amends. X, XIV:

Art. II, 5 25, Mont.Const.; § 46-11-504, MCA (former prosecution

bars subsequent prosecution in a different jurisdiction if the

first prosecution resulted in an acquittal or a conviction, and the

subsequent proceeding is based on the same offense or transaction).

By appealing the reckless driving conviction, Barker did not waive

his constitutional protection against double jeopardy for the

charge of driving under the influence of alcohol.

The same-elements or Blockburqer test bars multiple

prosecutions based on the same offense. United States v. Dixon

(1993), _ U.S. -, 113 s.ct. 2849, 125 L.Ed.2d 556, citing

Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76

L.Ed.2d 520. Here, the State failed to obtain a conviction for

driving under the influence of alcohol in Justice Court. That

proceeding barred any retrial of the driving under the influence of

alcohol charge based on Barker's February 8, 1992 accident. See

State v. Furlong (1984), 213 Mont. 251, 258, 690 P.2d 986, 989-90,

citing Burks v. United States (1978), 437 U.S. 1, 11, 98 S.Ct.

2141, 2147, 57 L.Ed.2d 1, 9-10; State v. Matt (1990), 245 Mont.

208, 214-15, 799 P.2d 1085, 1089, citing State v. Hall (1986), 224

Mont. 187, 728 P.2d 1339, rev'd on other grounds 481 U.S. 400, 107

S.Ct. 1825, 95 L.Ed.2d 354, per curiam; State v. Houser (1981), 192

Mont. 164, 168, 626 P.2d 256, 258 (same transaction rule bars

retrials concerning the same conduct tried before a competent court

of adequate jurisdiction). The State is therefore prohibited from

9
again placing Barker in jeopardy for driving under the influence of

alcohol.

We conclude that any retrial on the driving under the

influence of alcohol charge is barred by the United States and

Montana Constitutions. Where, as here, the defendant appeals from

an erroneous conviction for an uncharged offense, the defendant

does not waive the constitutional protection against double

jeopardy for charges of which he was acquitted. The State has not

met its burden of proof: the District Court ruling is affirmed.

";:17"

Chief(Justice

We concur:

1 0
August 24, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Hon. Joseph P. Mazurek

George Schunk, Attorney General

Justice Bldg.

Helena, MT 59620

George H. Corn, County Attorney

Gerald D. Williams, Deputy

P.O. Box 5008

Hamilton, MT 59840

David E. Stenerson

Attorney at Law

P.O. Box 1667

Hamilton, MT 59840

ED SMITH

CLERK OF THE SUPREME COURT

STAT&OF MONTANA