No. 87-564 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSGERALD ROY ONSTAD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James W. Spangelo, Havre, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

r- FCC Clay R. Smith, Asst. Atty. General, Helena, Montana 

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c? David G. Rice, County Attorney, Havre, Montana 0 C3 

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r; ) (-,; Submitted On Briefs: Oct. 13, 1988 

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-.w 4.1 fDecided: November 17, 1988 
Mr. Justice L. C. Gulbrandson del.ivered the 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 jurisdiction was filed on May 19, 1986, alleging that 

Onstad was an enrolled member of the Turtle Mountain 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 jurisdiction was properly in the federal courts. 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 courthouse and 

informed him the response to the motion to dismiss would take 

more time, to which the reply was "okay." However, no notice 

to this effect was made 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 

dismissal was filed, but through oversight, the order was 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 congressional action? 

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 District Court. 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 a brief by either party: 
[W] ithin the prescribed time shall 

subject [the] motion to summary ruling, . . . and such failure to file a brief by 

the adverse party shall be deemed an 

admission that in the opinion of counsel, 

the motion is well-taken. 

Rule No. II(l), Montana Uniform District Court 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 for decision." 

The same Uniform District Court Rul-e in part 2 provides 

"[elxtensions of time for filing briefs . . . may be granted 

on oral application . . . " 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 court properly 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), 157 N.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 a motion to dismiss based 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 court may 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 court may 

retain custody over the defendant pending the filing of a - new 

information. The statute does not provide for reinstatement 

of the dismissed 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 court may not change what 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 

complaint does not bar the prosecution from instituting a new 

complaint, indictment or information on the same offense. 

Section 46-13-106, MCA. However, as this Court has 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