No. 93-032

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

THE STATE OF MONTANA,

Plaintiff and Respondent,

-vRICHARD WAYNE BERGER,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Lawrence A. LaFountain, Havre, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Kathy

Seeley Assistant, Helena, Montana; David G. Rice,

Hill County Attorney, Havre, Montana

Filed:

Submitted on Briefs: June 17, 1993

Decided: July 15, 1993
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the Twelfth Judicial District Court,

Hill County, wherein the appellant, Richard Wayne Berger, pled

guilty to the offense of criminal sale of dangerous drugs in

violation of § 45-g-101, MCA, pursuant to a plea agreement under

which he reserved his right to appeal the application of 5 46-11-

503, MCA, to this case. We hold that 5 46-11-503, MCA, does not

bar the prosecution of the appellant for the offense of criminal

sale of dangerous drugs.

For purposes of this appeal, the parties have entered into an

agreed statement of facts, as follows:

1 . Shortly after 8 p.m., on April 22, 1992, Hill County

Sheriff's deputies monitored a sale of dangerous drugs by Richard

Wayne Berger to an informant wearing an electronic transmitting

device.

2 . The next day, April 23, 1992, shortly before midnight,

officers executed a search warrant at Berger's house.

3 . Berger was found to be in possession of small amounts of

marijuana and, at 12:15 a.m. on April 24, 1992, he was arrested and

charged with two counts of possession of dangerous drugs

(marijuana) in violation of MCA § 45-g-102.

4 . On April 24, 1992, Berger appeared in justice court and

pled guilty to the two possession charges.

5 . The information charging Berger with criminal sale of

dangerous drugs for the April 22, 1992 sale was filed in the

district court on July 28, 1992.

6 . The parties agree that the April 22, 1992 drug sale and

the April 24, 1992 possession charges were not a part of the “same

transaction" as defined in MCA 5 46-l-202(23).

Appellant Berger contends that the facts of this case fit

within the provisions of § 46-11-503(1)(b), MCA (1991), with the

result that his prosecution for criminal sale of dangerous drugs is

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barred. He maintains that the 1991 amendments to 5 46-11-503, MCA,

eliminated the "same transaction" requirement from what is now

subsection (l)(b) and expanded the protection of the statute to

unrelated offenses. We disagree.

Section 46-11-503, MCA, is the Montana "double jeopardy"

statute. In pertinent part, that section provides as follows:

46-11-503. Prosecution based on same transaction

barred by former prosecution. (1) When two or more

offenses are known to the prosecutor, are supported by

probable cause, and are consummated prior to the original

charge and jurisdiction and venue of the offenses lie in

a single court, a prosecution is barred if:

. . .

(b) the former prosecution resulted in a conviction

that has not been set aside, reversed, or vacated[.]

Section 46-11-503, MCA, was originally enacted in 1973 as §

95-1711(3), RCM (1947), and expressly applied only to prosecutions

based upon the same transaction. See Sec. 6, Ch. 513, L. 1973.

Prior to amendments adopted by the legislature in 1991, the

statute, in pertinent part, provided as follows:

46-11-503. When prosecution based on same

transaction barred by former prosecution. If the

offenses were known to the attorney prosecuting upon

sufficient evidence to justify the filing of an

information or the issuance of a warrant of arrest and

were consummated prior to the original charge and if the

jurisdiction and venue of the several offenses lie in a

single court, a prosecution based uoon the same

transaction as a former prosecution is barred by such

former prosecution under the following circumstances: . . .

(Emphasis added).

The 1991 amendments to § 46-11-503, MCA, were part of a number

of amendments adopted by the legislature to the Montana Code of

Criminal Procedure, Title 46 MCA. It is well settled that, when

3
construing a statute, the intent of the legislature is controlling,

Holly Sugar v. Department of Revenue (1992), 252 Mont. 407, 412,

830 P.2d 76, 78; 3 l-2-102, MCA.

While there is no specific discussion in the legislative

history pertaining to the amendments to the code section at issue,

it is instructive to note, however, that at the House Judiciary

Committee hearing on March 8, 1991, with respect to Senate Bill 51,

Robert Dechamps III, Chairperson of the Montana Criminal Procedure

Committee stated that the objective of the bill was to streamline,

codify, unify and consolidate procedural rules of criminal

procedure that had been adopted by the courts over the years that

did not exist in statute. II.. .[M]ost of what the committee did

really didn't change anything. The committee streamlined and

codified the rules. Most of the bill is existing law." See

minutes of hearing on SEi 51, House Judiciary Committee, March 8,

1991, p. 6.

In his comments as sponsor of the bill, Senator Van Valkenburg

pointed out that "[t]his is a bill that modernizes and recognizes

changes in case law that has [sic] occurred over the past 25 years

since Montana's Criminal Procedure Code was last revised and put

into statute many of the common practices that occur in the

criminal arena in the state of Montana." See minutes of hearing on

SB 51, House Judiciary Committee, March 8, 1991, p. 5.

Moreover, the 1991 Commission Comments note that the new

subsections (l)(a) and (l)(b) 'I . ..preserve the 1987 code but

eliminate confusing and unnecessary provisions."

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Neither the legislative history nor the Commission Comments

reveal that the legislature intended to substantively change the

application of 5 46-11-503, MCA, from prosecutions resulting from

the same transaction to unrelated prosecutions.

The dissent argues that the majority has inserted into 5 46-

11-503(1), MCA, the requirement that the offenses be part of the

"same transaction" and that it has improperly resorted to the use

of legislative intent in construing the statute, thereby ignoring

the clear provisions of the language of that section. While we

have no argument with the principles of statutory construction

cited by the dissent, when subsection (1) of the statute is read in

conjunction with new subsection (2), the language of subsection (1)

becomes less clear.

New subsection (2) of the statute provides that "[al

prosecution based upon the same transaction as a former prosecution

is not barred under subsection (l)(d) when: . . . .I' We are required

to avoid any statutory interpretation that renders any sections of

the statute superfluous and does not give effect to all of the

words used. Central Montana Elec. v. Adm'r of Bonneville Power

(9th Cir. 1988), 840 F.2d 1472, 1478. If subsection (1) does not

continue to pertain to prosecutions based upon the same

transaction, then the language in subsection (2) making reference

to such prosecutions is superfluous.

Furthermore, in amending the title of § 46-11-503, the

legislature retained the "same transaction" language of the

immediately preceding subsection (1). While, in construing a

5
statute, the wording of the body, and not that of the title

controls, Eastman v. School District No. 1 (1947), 120 Mont. 63,

78, 180 P.2d 472, 479 (overruled on other grounds), resort may,

nevertheless, be had to the title as an aid to construction. State

v. Bruce (1938), 106 Mont. 322, 332, 77 P.2d 403, 408, affirmed 305

U.S. 577, 59 S.Ct. 465, 83 L.Ed. 363 (overruled on other grounds).

The legislature's retention of the "same transaction" language in

the title of the statute is a further indication that subsection

(1) was not expanded to cover unrelated prosecutions.

Taking into consideration the general intent of the

legislature to malce procedural rather than substantive changes in

the law by its adoption of the 1991 amendments to the criminal

procedure code, and the above mentioned rules of construction, we

hold that § 46-11-503(l), MCA, continues to apply only to

prosecutions arising from the same transaction.

In this case the parties have agreed, and the record reflects,

that the appellant's prosecution of criminal sale of dangerous

drugs arose out of a transaction separate from that involving his

prosecution for possession of dangerous drugs. Accordingly, based

upon our construction of the statute, !j 46-11-503, MCA, does not

bar his prosecution for criminal sale of dangerous drugs, and his

conviction of that offense is affirmed.

We Concur:
Justices
Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion. All of the facts which

led to defendant's arrest, prosecution, and conviction for the sale

of dangerous drugs pursuant to 3 45-g-101, MCA, were known to the

State on April 24, 1992, when defendant was charged with and

convicted of possession of dangerous drugs pursuant to 5 45-g-102,

MCA. For that reason, and because the other statutory elements are

satisfied, defendant's second prosecution, which was commenced on

July 28, 1992, was clearly barred by the plain language of

5 46-11-503(1)(b), MCA.

The majority has held otherwise by inserting into

§ 46-11-503(l), MCA, the requirement that the offenses be part of

the "same transaction." However, in doing so, the majority has

violated a cardinal principle of statutory construction. Section

l-2-101, MCA, provides as follows:

In the construction of a statute, the office of the judge

is simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has been

omitted or to omit what has been inserted.

In departing from the current clear language of the statute

which controls the outcome of this case, the majority has based its

decision on its contention that the Legislature did not mean to say

what it clearly did say when it amended 5 46-11-503, MCA.

Therefore, the majority ignores the plain language of that section

in favor of what it concludes was the Legislature's intent.

However, in doing so, the majority has violated a second rule of

construction which we have previously articulated in our decisions.

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In WhiteV. U"hite (1981), 195 Mont. 470, 473-74, 636 P.2d 844,

845-46, we held that:

The intention of the legislature must first be determined

from the plain meaning of the words used, and if

interpretation of the statute can be so determined, the

courts may not go further and apply any other means of

interpretation. Haker v. Southwestern Railway Co. (1978)~ 176

Mont. 364, 5 7 8 P .2d 7 2 4 ; Montana Assn. of Underwriters v. State of

Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the

language of a statute is plain, unambiguous, direct and

certain there is nothing left for the court to construe.

Doullv. Wohhchlager (1963), 141 Mont. 354, 377 P.2d 758;

National Electric ContractoorsAssn. v. State Board of Education (1960) , 137

Mont, 382, 352 P.2d 258; Vaughn & Ragsdale Co. v. State Board of

Equalization (1939), 109 Mont. 52, 96 P.2d 420. The

function of the court in construing a statute is simply

to ascertain and declare what is in terms or in substance

contained therein, not to insert what has been omitted or

omit what has been inserted. Section l-Z-101, MCA. In

short, it is simply the duty of the Supreme Court to

construe the law as it finds it. Dunphy v. Anaconda Co.

C-68), 151 Mont. 76, 438 P.2d 660, and cases cited

therein.

In Statev. Hubbard (1982), ZOO Mont. 106, 111, 649 P.2d 1331,

1333, we held that "[tlhere is simply no reason for the use of

legislative history to construe a statute where the language is

clear and unambiguous on its face."

Even more recently, in Dom v. Board of Trustees of Billings School District

(19831, 203 Mont. 136, 144, 661 P.2d 426, 430, we held that:

The primary tool for ascertaining intent is the plain

meaning of the words used. The Court properly refers to

legislative history only when intent cannot be determined

from the content of the statute. The instant statute

does not necessitate such an inquiry.

There is nothing unclear about § 46-11-503(1)(b), MCA, which

requires reference to its legislative history in order to determine

the Legislature's intent. The language of the statute is clear and

9
requires the dismissal of the charges filed against defendant on

July 28, 1992. However, if, as the majority suggests, inconsistent

language in subparagraph (2) creates an ambiguity in 5 46-11-

503(1), MCA, then according to the rule of lenity the ambiguity

must be construed in favor of the defendant and against the State

which authored the ambiguous provision. State v. Goodwin (1991) , 249

Mont. 1, 24, 813 P.2d 953, 967.

For these reasons, I dissent from the majority opinion.

Justice William E. Hunt, Sr., joins in the foregoing dissent.

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July 15, 1993

CERTIFICATE OF SERVICE

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

Ilamed:

Lawrence A. LaFountain

Attorney at Law

P.O. Box 1532

Havre, MT 59501

Hon. Joseph P. Mazurek, Attorney General

Kathy Seeley, Assistant

Justice Bldg.

Helena, MT 59620

David G. Rice

Hill County Attorney

P.O. Box 912

Havre, MT 59501

ED SMITH

CLERK OF THE SUPREME COURT

STATE 0% MONTANA