NO. 83-397 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF: 

L.R.T., R.A.C., T.P.V. 

and M.L.B., YOUTHS. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County of Hill 

Honorable Chan Ettien, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ronald W. Smith, County Attorney, Havre, Montana 

For Respondent: 

Hauge, Ober, Hauge and Brown, Havre, Montana (LRT) 

Altman & Lilletvedt, Havre, Montana (RAC) 

Mark A. Suagee, Havre, Montana (MLR) 

Submitted on briefs: January 5, 1984 

Decided: May 7, 1984 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The State of Montana appeals an order of the Hill County 

District Court dismissing the State's petition to declare 

four youths as delinquents. The dismissal was based on 

section 41-5-516, MCA, as it existed before the 1983 

amendments. We affirm. 

At the time the petition was filed under the Youth Court 

Act in June 1983, section 41-5-516, provided a mandatory 

hearing within 15 da.ys of service of process for youths in 

custody (subsection 1), and a method by which a continuance 

could be obtained for youths not in custody, by compliance 

with the conditions set forth in subsection 2. The youths 

involved were not ir! custody and the primary focus is on 

subsection 2 of this statute. 

Based on the youths' motions to dismiss by failure to 

comply with subsection 2, the trial court ruled that the 

continuances involved regardless of whether they were 

obtained on motion of the State or based on the trial court's 

sua sponte order of continuance, failed to meet the 

requirements of subsection 2 that the continuances be "in the 

interests of justice" and tha.t the moving party was 

"diligent" in pursuing the matter before asking for the 

continuance. 

Section 41-5-516(2), permitting a continuance under 

certain limitations and conditions where the youths are not 

in custody, is the primary focus of this appeal. It 

provides : 

"The youth court may, upon motion of either party 

or upon the court's own motion, order a continuance 

if the youth is not in custody and interests of 

justice so require. All motions for a continuance 
are addressed to the discretion of the youth court 

judge and must be considered. in the light of the 

diligence shown on the part of the movant." 

The basis for the juvenile delinquency petition was a 

shooting incident in the area of North Havre, commonly known 

as "Bum Jungle." The State alleged that four juveniles and 

one adult obtained a gun and shot Allen Wayne Fust whil-e they 

were driving in the "Bum Jungle" area. The shooting victim 

was treated for his wound, released from the hospital, and he 

has since disappeared and cannot be located. The adult was 

cha.rged as an adult offender with the crime of aggravated 

assault. The youths were charged as juvenile offenders on a 

charge that they conspired to commit an aggravated a.ssault on 

Fust. At the time of the incident, one of the juveniles was 

16 years old, one was 15, and two were 14. 

The State filed the petition on June 16, served the 

youths on June 17, and a hearing date was set for June 27, 

well within the 15 day hearing requirement. The hearing did 

not take place on this date. 

Five days before the scheduled June 27 hearing, an order 

issued continuing the hearing date and setting the new 

hearing date for July 6, the effect of which triggered 

application of subsection 2 of the statute. How this order 

happened to be issued is in dispute. At a later hearing on 

the youths' motion to dismiss, the youths maintained that the 

county attorney asked for the continuance, but the county 

attorney steadfastly maintained that he had asked. for no 

continuance. The only thing that is certain is that the 

youths did not ask for this continuance. 

The July 6 hearing also failed to take place. On July 

6, the trial court ordered the hearing date continued and did 

not set another hea.ring date. For almost a month after this 
order, the State did nothing. On August 2, the State, 

apparently concerned that a hearing on the juvenile petition 

had not been set, requested the trial court to set a new 

hearing date. The court ordered that the hearing would take 

place on August 5. The juveniles, however, after receiving 

notice of this hearing date, immediately filed motions to 

dismiss the juvenile petition on the ground that the 15 day 

time limit under section 41-5-516 (I), MCA, had not been 

satisfied and that the conditions for a continuance as 

provided for in subsection 2 also had not been satisfied. 

At the August 5 hearing on the motion to dismiss, the 

State strenuously argued that it had not asked for either 

continuance. The record is silent on this question. At the 

conclusion of the hearing, the trial court gave the State 

three days to file a brief on its claim that section 

41-5-516 (2) gave the court discretion in determining whether 

or not to dismiss a juvenile petition because of a failure to 

comply with the 15 day hearing requirement. The appeal 

record does not reveal whether the State did file a brief. 

On August 15, the trial court in a written order 

explaini.ng its decision, dismissed the petition with 

prejudice. The court noted that it cou1.d not be determined 

whether or not the State had requested the first continuance, 

but that the second continuance was granted at the request of 

the Sta.te. The trial court noted that "the trail of 

continuances is not well marked as to their grounds . . ." 

but noted that 

". . . there is nothing in the record to show the 

continuances were in the interests of justice or 

that consideration was had in the liqht - of 

diligence shown on the part of the movant, -- be it 

state - or court." (Emphasis added.) 
The court then concluded that 

11 . while it can be argued there is a 

presumption the continuances ordered were 

sufficiently grounded, the Court --- is of the opinion 

-- that the record should express support -- for the 

orders." (Emphasis added.) 

Based on these considerations, the trial court concluded 

that the spirit if not the letter of section 41.-5-516, 

required a dismissal with prejudice. 

The State presents a sliding scale argument as to 

whether there has been compliance with the mandate of 

sections 41-5-516 (1) and (2) . If the underlying facts 

leading to the filing of the juvenile petition are relatively 

harmless, the State concedes the discretion of the trial 

court to dismiss the petition because of noncompliance with 

the statutory mandate. But if the underlying facts indicate 

a serious transgression, such as the case here, the State in 

effect argues that the trial court has no discretion to 

dismiss a petition, and therefore that a dismissal is an 

automatic abuse of discretion. The State, however, fails to 

distinguish the discretionary powers of a court to gran.t a 

continuance based on compliance with the statutory mandate 

and the duty of the trial court to enforce the mandate of the 

statute where the mandate has not been fulfill.ed. If the 

grounds for a continuance do not meet the statutory 

requirements, the trial court has only one choice--to dismiss 

the petition. That is the situation here. 

As to the first continuance, the record fails to 

indicate whether the State requested the first continuance or 

whether the trial court, acting on its own, ordered the 

continuance. Wha.tever the case, however, the continuance was 

ordered for unknown reasons and can hardly be said to meet 

the "interests of justice" and due "diligence" requirements 
of subsection 2. This continuance, ordered without 

compliance with the statute, placed the hearing date beyond 

the 15 day limit. This, by itself, was sufficient ground for 

dismissal of the juvenile petition. 

This noncompliance was continued and amplified when the 

second continuance was ordered. Although the State also 

denied that it had requested the second continuance and 

insisted that it was ordered by the Court adting without 

request from counsel, the trial court determined that the 

State had requested and obtained the second continuance. It 

does appear, by an after-the-fact investigation, that at the 

time the second continuance order was issued, the trial court 

was presiding over and the prosecutor was trying a DUI case. 

Whether it was the trial court acting sua sponte or whether 

it was the trial court acting pursuant to a request from the 

State, the fact remains that the continuance was granted with 

no reasons stated in the record for the continuance. We are 

left to speculate OD the circumstances leading to the 

continuance order. 

We cannot ignore the fact that after the second 

continuance was ordered, almost a month went by before the 

State requested the court to set another hearing date on the 

juvenile petition. The State was on notice of the mandatory 

hearing deadlines of the statute and the statutory 

requirements for extending the hearing date beyond the 15 day 

limit. Even assuming that the trial court also ordered the 

second continuance acting sua sponte, the failure of the 

State to request a hearing for almost a month after this 

order was issued fails to demonstrate a reasonable attempt to 

comply with the hearing mandate of the juvenile statute. 
The District Court's dismissal of the juvenile petition 

is affirmed. 

We Concur: