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 EighteenthJudicialDistrict, 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, 1993Justice 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 thedefendant's motion todismiss the complaintbased on an unreasonable delay in the execution of an arrest warrant. In 1988 and 1989, appellant Lynn C. Cummins (Cumins) maintained two separatechecking accounts; one in the name of Cheri L. Cummins (the iqCheri" account) and one in the name of Lynn C. Cummins (the "Lynnwaccount). 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 otherconditions,the courtdismissed 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 complaintwas made on August 2, 1989, and an arrest warrant issued that day. The warrant was delivered to and logged with the sheriff'sdepartment onAugust 11, 1989. The warrant was executed 2

### May 1, 1991, 

### one year and ninemonths from the date it was issued. Thismeans that Cumminswas arrested twoyearsand fivemonths 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 toher 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 shehad 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 forcommencing prosecution of a misdemeanor. On July 2, 1991, the court denied her motion to dismiss and found her guilty of issuingbad 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, Cumminspled guilty to the charged offense, reserving the right to appeal from the District Court's denial of her motion to dismiss. The District Court acceptedher plea of guilty to themisdemeanor charge of issuing bad checks and issue6 an or6er deferring imposition of her sentence for six months on the condition that shepay $194.89 in restitution and perform 40hours of community service. The sentencewas 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 defendantand 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 misdemeanormust 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 complaintwithin the statute of limitations,sheargues that "reasonablediligence isalso required in executing the arrest warrant to effectively toll the statute of 4li~itations.~ We need not decide the case in this basis. The District Courtdetermined that thewarrantwas not "stale" under the circumstances of the case. Cummins testified at trial that her real namewas 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 addresshe told thedeputy that he and Cumminswere separated and that shewas living in Missoula, even though thiswas 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 herhusband 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 sergeantwith the departmenttestified that thewarrant 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 2,000arrest warrants during 1989, 1990 and 1991 and the volume makes it nearly impossible to follow up on every lead. This was recognizedby the District Court in denying Cummins' motion to dismiss the complaint where it noted: 

### I thinkwe 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 accountsunder 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 CERTIFICATEOFSERVICE Iherebycertifythatthe followingorderwas sent byUnited Statesmail,prepaid,tothefollowi~ig named:

JeannetteEllenBerry Berry &Bordy 2631WestMain Street Bozeman,MT 59715 Hon.JosephP. Mazurek,Attorney General Michael Wellenstein, Assistant 215N. Sanders,JusticeBuilding Helena, MT 59620 MichaelSalvagni,GallatinCountyAttorney Jane Mersen,Deputy County Attorney 615Smth 16thAvenue,Room lCICl Bozeman,MT 59715 EDSMITH CLERKOFTHESUPREMECOUR7 STATEOFMONTANA 

### BY: Deputy