NO. 92-453 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

LYNN C. CUXMINS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Koran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeannette Ellen Berry; Berry & Bordy, Bozeman, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Micheal 

Wellenstein, Assistant Attorney General, Helena, 

Montana 

Mike Salvagni, Gallatin County Attorney; Jane 

Mersen, Deputy County Attorney, Bozeman, Montana 

. ." 4 

Submitted on Briefs: January 21, 1993 

Decided: April 6, 1993 
Justice John Conway Harrison delivered the Cpinion of the Court. 

This is an appeal from the District Court of the Eighteenth 

Judicial District, Gallatin County, the Honorable Larry W. Moran 

presiding. We affirm. 

The issue presented is whether the District Court erred in 

denying the defendant's motion to dismiss the complaint based on an 

unreasonable delay in the execution of an arrest warrant. 

In 1988 and 1989, appellant Lynn C. Cummins (Cumins) 

maintained two separate checking accounts; one in the name of Cheri 

L. Cummins (the iqCheri" account) and one in the name of Lynn C. 

Cummins (the "Lynnw account). On her checks, the "Cheri* account 

listed her post office box number, while the "Lynn" account listed 

her street address. 

Prior to the misdemeanor charge leading to this appeal, 

Cummins answered a compiaint fiied on May 1, 1989, charglng her 

with issuing bad checks, a misdemeanor, on the "CheriW account. 

When the arrest warrant issued in that case, Cummins complied with 

the sheriff's department's direction to appear in Justice Court on 

the charge. After she made restitution on those checks and 

complied with other conditions, the court dismissed that complaint. 

In August 1989, Cummins was again charged with issuing bad 

checks, a misdemeanor, for checks written on the "Lynnw account 

between September 25, 1988, and November 22, 1988. A sworn 

complaint was made on August 2, 1989, and an arrest warrant issued 

that day. The warrant was delivered to and logged with the 

sheriff's department on August 11, 1989. The warrant was executed 

2 
May 1, 1991, one year and nine months from the date it was issued. 

This means that Cummins was arrested two years and five months from 

the date of the offense. 

cummins testified that she was under the impression that all 

of her outstanding checks were included in the May 1989 

prosecution, and that to her knowledge, she did not receive notice 

that there were checks outstanding on the "Lynn" account. 

Cummins moved to dismiss the complaint in Justice Court on 

July 9, 1991. She argued that the delay in executing the arrest 

warrant was unreasonable, therefore it violated her due process 

rights. Cummins does not claim prejudice on appeal or explain how 

she might have been prejudiced by any delay. She claims that 

because she had no notice of the complaint for a period of twentyone months, her due process rights were violated. She also argued 

in her motion that the delay violated the "spiritl* of the one-year 

statute of limitations for commencing prosecution of a misdemeanor. 

On July 2, 1991, the court denied her motion to dismiss and found 

her guilty of issuing bad checks. Cummins appealed to the District 

Court for a trial de novo and, on January 31, 1992, she filed a 

similar motion to dismiss in the District Court. Following 

submission of briefs and a hearing, the District Court denied her 

motion to dismiss on February 10, 1992. 

On June 11, 1992, by stipulation and pursuant to 5 46-12- 

204(3), MCA, Cummins pled guilty to the charged offense, reserving 

the right to appeal from the District Court's denial of her motion 

to dismiss. The District Court accepted her plea of guilty to the 
misdemeanor charge of issuing bad checks and issue6 an or6er 

deferring imposition of her sentence for six months on the 

condition that she pay $194.89 in restitution and perform 40 hours 

of community service. The sentence was stayed pending the outcome 

of this appeal. 

The issue on appeal is whether the District Court abused its 

discretion in denying Cumins' motion to dismiss the complaint. 

She argues that the complaint should have been dismissed for 

unreasonable delay in prosecution under the authority of I 46-13- 

401(1), MCA, which provides in part: 1?13ne court may . . . in 

furtherance of justice, order a complaint . . . to be dismissed. . 

. . " As this Court noted in State ex rel. Anderson v. Gile (1946) , 

119 Mont. 182, 187, 172 P.2d 583, 586: 

The legislature has not attempted to define the phrase 

"in furtherance of justicew . . ., hence it is left for 

judicial discretion exercised in view of the 

constitutional rights of the defendant and the interests 

of society to determine what particular grounds warrant 

the dismissal of a pending criminal action. 

The statute of limitations for prosecuting a misdemeanor in 

Montana is set forth in 5 45-1-205(2) (b), MCA, which states that 

"[a] prosecution for a misdemeanor must be commenced within 1 year 

after it is committed." The prosecution is commenced when the 

complaint is filed. Section 45-1-205(7), MCA. In this case the 

State filed the complaint in a timely fashion, approximately nine 

months after the alleged commission of the offense. Although 

Cummins admits the State filed its complaint within the statute of 

limitations, she argues that "reasonable diligence is also required 

in executing the arrest warrant to effectively toll the statute of 

4 
li~itations.~ We need not decide the case in this basis. 

The District Court determined that the warrant was not "stale" 

under the circumstances of the case. Cummins testified at trial 

that her real name was Cheri Lynn Cummins, not Lynn C. Cumins--the 

name on the checks. Although the sheriff's department had an 

address for Cummins, when they attempted to serve her at that 

address they found no one home. When they finally contacted her 

husband at that address he told the deputy that he and Cummins were 

separated and that she was living in Missoula, even though this was 

not true. Her husband did not tell her that the sheriff's 

department wanted to speak with her. 

Between August 1988 and February 1990, Cummins and her husband 

lived at the address stated on her checks. However, Cummins lived 

there sporadically in January and February of 1990 as she and her 

husband were "fighting." Between February and the time she was 

arrested, she lived at six different locations in Gallatin County 

for short periods of time, including places in Bozeman, West 

Yellowstone, and Amsterdam. She also worked in at least seven 

different locations during that period. 

In attempting to serve her with the warrant, the sheriff's 

department went through a checklist of potential information 

sources. A sergeant with the department testified that the warrant 

in this case was worked approximately fives times as much as the 

other misdemeanor warrants they had on file. 

The record indicates that the sheriff's department personnel 

do not have unlimited resources to track down every lead in their 
effort to serve arrest warrants. The department received 

approximately 2,000 arrest warrants during 1989, 1990 and 1991 and 

the volume makes it nearly impossible to follow up on every lead. 

This was recognized by the District Court in denying Cummins' 

motion to dismiss the complaint where it noted: 

I think we have to interpret these regulations with some 

degree of practicality. The sheriff in a bad check case 

cannot spend all of his time day after day after day 

trying to track down a person that writes bad checks, 

particularly a person who is writing bad checks out of 

two accounts under two different names at the same time. 

And that's precisely the circumstance the evidence, at 

least insofar as the pleadings are concerned, indicated 

here. 1 feel that the case is not stale, and the Motion 

to Dismiss is denied. 

We find the State did not violate the statute of limitations or 

Cummins' due process rights. 

Affirmed. 

We concur: 
April 6, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Jeannette Ellen Berry 

Berry & Bordy 

2631 West Main Street 

Bozeman, MT 59715 

Hon. Joseph P. Mazurek, Attorney General 

Michael Wellenstein, Assistant 

215 N. Sanders, Justice Building 

Helena, MT 59620 

Michael Salvagni, Gallatin County Attorney 

Jane Mersen, Deputy County Attorney 

61 5 Smth 16th Avenue,Room lCICl 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COUR7 

STATE OF MONTANA 

BY: 

Deputy