No. 87-564
INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

STATE OFMONTANA, Plaintiff and Respondent,-VSGERALD ROY ONSTAD,
Defendant and Appellant.

APPEAL FROM: DistrictCourtof the TwelfthJudicial District, Inand forthe Countyof Hill, The Honorable ChanEttien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
JamesW. Spangelo, Havre, Montana
For Respondent:
Hon. MikeGreely, AttorneyGeneral, Helena, Montana r- FCC ClayR. Smith, Asst. Atty. General, Helena, Montana m :I> c? DavidG. Rice, CountyAttorney, Havre, Montana 0 C3 4 iL:

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### (-,; SubmittedOn Briefs: Oct. 13, 1988
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-.w 4.1 L fDecided:November 17, 1988Mr. Justice L. C. Gulbrandson del.iveredthe Opinion of the Court.
Appellant, Gerald Roy Onstad, appeals an order of the Twelfth Judicial District Court, Hill count:^, reinstating an information charging Onstad with burglary and theft, and his subsequent conviction and sentence on the information. FJe
reverse. Onstad was arrested on Decemher 9, 1985, for the burglary of and theft from a residence in Box Elder,Montana. An information charging him with the crimes was filed on Decemher 12, 1985. Onstad entered a plea of not guilty to the charges on January 22, 1986. A motion to dismiss for lack of jurisdictionwas filed onMay 19, 1986, alleging that Onstad was an enrolled member of the TurtleMountain Rand of Chippewa Indians, that he was charged with a "major crime," and that the crime occurred in "Indian Country" or in 

### a "Dependent Indian Community." For these reasons, Onstad contended jurisdictionwasproperly in the federalcourts. A brief supporting these contentions was also filed at that time

# . Shortly thereafter, the county attorney encountered appellant's attorney in the hall of the county courthouseand informed him the response to themotion to dismisswould take more time, towhich the reply was "okay." However, no notice to this effectwasmade to the court and on June 3, 1986, no responding brief having been submitted, the District Court Judge found the challenge to jurisdiction well-taken and dismissed the information and the charges. The order of dismissalwas filed, but through oversight, the orderwas not served on the attorneys. On July 16, 1986, the county attorney filed 

### a memo in opposition addressing the jurisdiction issue. On July 31,1986, Onstad's attorney filed a reply brief and on August 5, 1986, the county attorney filed a "Motion to Set Aside Order of Dismissal." However, the time for appealing the District Court order of dismissal had expired on August 2, 1986. A hearing on the motion was held August 11, 1986,and the court granted the motion on September 10, 1986, reinstating the information. Onstad was subsequently convicted and sentenced to five years imprisonment, with all five years suspended. The suspension of the sentence has since been revoked by the court for violation of the conditions attached to the suspension. Appellant presents the following issues on appeal: 1. Did the District Court have jurisdiction to reinstate the information on September 10, 1986, after having dismissed it on June 3, 1986,and if so were Onstad's double jeopardy rights violated? 2. Is the situs of the alleged crime Indian Country because of congressionalaction? 3. Is the situs of the alleged crime Indian Country because it is a Dependent Indian Community? It is the appellant's first contention that the District Court, having entered its order dismissing the information, was without jurisdiction to change the order. The District Court, with one exception, properly dismissed the information based upon the record before the court. The motion was properly made, briefed, and on its face contended
a lack of jurisdiction in the DistrictCourt. Rule No. I1 of the Uniform District Court Rules, then in effect, provides an adverse party shall have ten days from the filing of the movant's brief to serve and file an answer brief. Further, failure to file abrief by eitherparty:

### [W] ithin the prescribed time shall subject [the] motion to summary ruling,



# ...and such failure to file abrief by the adverse party shall be deemed an admission that in the opinionof counsel, themotion iswell-taken. RuleNo. II(l), Montana Uniform DistrictCourt Rules. when a party allows the time for filing a brief to lapse, the Uniform District Court Rules provide the clerk shall, "on the Monday 

# . .. next following the lapse of the time of either party for the filing of a brief, present such motion to the Court fordecision." The same Uniform District CourtRul-ein part 2provides "[elxtensions of time for filingbriefs

# ..

# .may be granted
on oral application 

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# . . " However, the court must he notified by counsel of the desire or need for an extension before one may be granted. This was not done in this case and the courtproperly dismissed the information. The order dismissing the case issued on June 3, 1986, and the clerk filed the order on that date. Upon the filing of the order dismissing the information the order became a final judgment and was appealable. See, State v. Enfinger (Mont. 1986), 722 P.2d 1170, 43 St.Rep. 1403; State 

### v. Wirtala (Mont. 1988), 752 P.2d 177, 45 St.Rep. 596;and State
v. Spencer (S.D. 1916), 157N.W. 

### 662. Sections 46-13-106 and 46-13-201, MCA, deal with the effect granting a motion to dismiss has on an information. Section 46-13-106,MCA,provides: If the court directs the action to be 

### dismissed, the defendant must, if in custody, be discharged therefrom or, if admitted to bail, have his bail exonerated or money deposited instead of bail refunded to him. However, if the court grants amotion todismissbased on a defect in the institution of the prosecution or 

### in the indictment,information, or complaint, or if it appears at any time before judgment that a mistake has been made in charging the proper offense, the courtmay also order that the defendant be held in custody or that his bail be continued for a specified time pending the filing of a new complaint, indictment, or information. This statute implies that the dismissed information is no longer effective against the defendant, though the courtmay retain custody over the defendant pending the filing of a 

### - new information. The statute does not provide for reinstatement of thedismissed information. Therefore, a valid information did not exist under which the defendant could be tried, and defendant's subsequent trial, conviction and sentence under the reinstated information is invalid. We note the State contends the court could reinstate the information as a nunc pro tunc correction of the record. While a District Court may correct clerical errors to make the record speak the truth as to what was actually decided, the courtmay not changewhat was originally intended. State
v. Owens (Mont. 1988), 748 P.2d 473-474, 45 St.Rep. 89, 91. The reinstatement of the information was a reversal of the court's decision on the motion to dismiss and is not permissible. It is the general rule, that the granting of a motion to dismiss for defects in the indictment, information or complaintdoes not bar theprosecution from instituting a new complaint, indictment or information on the same offense. Section 46-13-106,MCA. However,as this Courthas equated a motion for dismissal under § 46-13-106,MCA, to a "dismissal at instance of court or prosecution" under 5 46-13-201,MCA, subsection (3) of that section will apply. State v. Roll

### (1983), 206 Mont. 259, 670 P.2d 566, 568. Section 46-13-201(3),MCA, provides that "dismissal of an action as provided in this chapter is a bar to any other prosecution for the same offense if it is a misdemeanor,but it is not a 

### bar if the offense is a felony." 

### Reversed.

We concur: /



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### Justices