NO. 83-397 INTHE SUPREMECOURT OF THE STATE OF MONTANA 1984

INTHEMATTER OF: L.R.T., R.A.C., T.P.V. andM.L.B., YOUTHS.

Appeal from: District Court of the Twelfth Judicial District, Inand for the CountyofHill Honorable Chan Ettien, Judgepresiding. Counsel of Record: For Appellant:
Hon. Mike Greely,Attorney General, Helena,Montana RonaldW. Smith,CountyAttorney,Havre,Montana For Respondent: Hauge, Ober,Hauge and Brown,Havre,Montana (LRT) Altman & Lilletvedt,Havre,Montana (RAC) MarkA. Suagee, Havre,Montana (MLR)

Submitted onbriefs: January 5, 1984 Decided:May 7, 1984Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

The State of Montana appealsan 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 thepetition was filedunder the Youth Court Act in June 1983, section 41-5-516, provided a mandatory hearing within 15 da.ysof 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 onmotion 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 continuancesbe "inthe 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 courtmay, 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 continuanceare addressed to the discretion of the youth court judge and must be considered.in the light of the diligence shown on the part of themovant." 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 shotAllenWayne Fustwhil-ethey were driving in the "Bum Jungle" area. The shooting victim

was treated for hiswound, released from the hospital, and he has since disappeared and cannot be located. The adultwas cha.rgedas an adult offender with the crime of aggravated assault. Theyouths were charged as juvenile offenders on a charge that they conspired to commit an aggravated a.ssaulton Fust. At the time of the incident,one of the juvenileswas 16 years old,onewas 15,and twowere 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 takeplace on thisdate. Five daysbefore 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 theyouths' motion to dismiss,theyouthsmaintained 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 youthsdid not ask for this continuance. The July 6 hearing also failed to take place. On July 6,the trial court ordered the hearing date continuedand did not set anotherhea.ringdate. For almost a month after thisorder, 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 Statehad requested the first continuance, but that the second continuancewas 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." (Emphasisadded.)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." (Emphasisadded.) 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 filingof the juvenilepetition 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.ta 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 courthas only one choice--to dismiss thepetition. That is the situationhere. As to the first continuance, the record fails to indicatewhether the State requested the first continuanceor whether the trial court, acting on its own, ordered the continuance. Wha.teverthe case,however, the continuancewas ordered for unknown reasons and can hardly be said to meet the "interests of justice" and due "diligence" requirementsof subsection 2. This continuance, ordered without compliance with the statute,placed the hearing date beyond the 15 day limit. This,by itself,was sufficientground for dismissal of the juvenilepetition. This noncompliancewas 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 orderwas 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 factremains that the continuancewas granted with

no reasons stated in the record for the continuance. We are left to speculate OD the circumstances leading to the continuanceorder. 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 themandatory hearing deadlines of the statute and the statutory requirements for extending the hearing datebeyond the 15day 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 orderwas issued fails to demonstratea reasonableattempt to comply with the hearing mandate of the juvenile statute.The District Court's dismissal of the juvenile petition is affirmed.

We Concur: