No. 80-314 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

vs . 

CURTIS CARDWELL, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Hon. W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

A. Michael Salvagni argued, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten appeared, Assistant Attorney General, 

Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

Michael Lilly argued, Deputy County Attorney, Bozeman, 

Montana 

Submitted: February 17, 1981 

Decided: MAR 2 4 1981 

Filed: MljR 24. 1!?8f 

v I Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Cardwell appeals his conviction by a Gallatin County 

jury of tampering with a witness and misdemeanor assault. 

In State v. Cardwell (1980), - Mont. - , 609 P.2d 

1230, 37 St.Rep. 750, we reversed the defendant's first 

convictions on charges of aiding and abetting another in the 

commission of the offense of tampering with witnesses and 

aggravated assault. In doing so, we ruled that section 

46-11-403, MCA, allowing the amendment of a criminal 

information without leave of court, was unconstitutional. 

Af ter the opinion was entered, Cardwell asked this 

Court for an order discharging him from the state prison. 

We ordered him released and bound over to Gallatin County 

authorities for rearraignment on the original charges. 

Defendant moved the District Court for dismissal on the 

grounds of double jeopardy and speedy trial violations. The 

motion was denied. 

The cause went to trial on June 10, 1980. The jury 

returned a verdict of guilty on the lesser included offenses 

of misdemeanor assault and tampering with a witness, a 

felony. This appeal follows. 

The underlying facts of this case have no bearing on 

the issues involved in the appeal and will not be recited. 

They can be found in our first Cardwell opinion, cited 

above. 

Defendant offers three issues for our review: 

1. Did the second trial violate defendant's right to 

be protected against double jeopardy as guaranteed by the 

United States Constitution and the Montana Constitution? 

2. Did the action of this Court and the subsequent 
detention and trial violate defendant's rights under the due 

process clauses of the United States Constitution and the 

Montana Constitution? 

3. Was defendant's right to a speedy trial denied? 

Double Jeopardy 

This Court's remand order in State v. Cardwell, 

supra, provided: "The cause is reversed and the amended 

information against the defendant is ordered dismissed." 

Cardwell maintains that his second trial violated his 

constitutional rights against double jeopardy. Benton v. 

Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 

707. See also Art. 11, Section 25, 1972 Mont. Const. 

Defendant cites numerous decisions by this Court for 

the proposition that double jeopardy exists whenever this 

Court fails to order a new trial. State v. Hodgson (1979), 

Mont. , 603 P.2d 246, 36 St.Rep. 2121; State v. 

Holliday (1979), Mont . , 598 P.2d 1132, 36 St.Rep. 

1535; State ex rel. Nelson v. Ellsworth (1962), 141 Mont. 

78, 375 P.2d 316. We do not agree that such a rule can be 

found in these decisions. 

In Ellsworth, supra, this Court explained that the 

rule of law was clear: " . . . a reversal of a judgment of 

conviction upon appeal and a retrial does not constitute 

double jeopardy." 141 Mont. at 81. 

The rule in Ellsworth was based on the case of State 

v. Aus (1937), 105 Mont. 82, 69 P.2d 584. Cardwell 

underscores the language of Aus for the purpose of 

emphasizing several points: (1) when a new trial is 

granted, the defendant is not placed in double jeopardy but 
merely subjected to the same jeopardy he was in during the 

first trial; (2) the defendant may not be tried again for 

the same offense except in the case where a new trial is 

granted or ordered; and (3) a person convicted of a crime 

waives his constitutional protection against being twice in 

jeopardy where at his request the verdict against him is set 

aside and a new trial granted. 

Defendant Cardwell admits that if this Court had 

ordered or granted a new trial, as in Aus and its progeny, 

he would not have been able to claim that he was placed in 

double jeopardy by the second trial. Cardwell concludes 

that the salient distinction between the precedent cases 

cited and his case is the absence of an express order of 

this Court directing the new proceeding. 

The issue before us is more properly framed in terms 

of whether the failure to specifically and expressly order a 

new trial necessarily precludes further action. It is our 

opinion that it does not. 

Cardwell correctly recites the case law applicable to 

former jeopardy protections as they have been interpreted by 

this Court in the Aus line of cases. We are not persuaded 

by defendant's logic, however, that the remand order must 

order a new trial for one to occur. Our remand orders do 

not exist in the abstract, independent of the supporting 

opinion. In the body of the Cardwell opinion, we wrote: 

"Section 46-11-403(1) being unconstitutional, 

the amended information should have been 

dismissed by the District Court on the 

original motion by Cardwell, and he should 

not have proceeded to trial on the charges in 

the amended information. Since the District 

Court failed to dismiss the amended 

information, we must do so now. However, 

------- ordering ---------- the dismissal ----- -------------- of the amended 

information, we do not mean to preclude -- the 
It is unreasonable to urge this Court to disregard 

its own language. Clearly, it was our intention to leave 

the door open to retrial. Any ambiguity created because of 

the wording of the remittitur order is eliminated by 

referring to the above language. We conclude, therefore, 

that a new trial was indeed granted by the original opinion, 

and we are compelled by the precedent cited by defendant to 

hold that his former jeopardy rights were not violated by 

his second trial. 

Due Process 

On April 23, 1980, Cardwell petitioned this Court for 

an order discharging him from custody in compliance with 

section 46-20-707, MCA. 

In a May 1, 1980, order this Court discharged 

Cardwell from the state prison and directed that he be 

returned to Gallatin County for rearraignment on the 

original charges. Cardwell now objects on the ground that 

he was denied due process of law, citing the Fifth and 

Fourteenth Amendments to the United States Constitution and 

Article 11, Section 17, of the 1972 Montana Constitution. 

Cardwell maintains that this Court did not have the 

authority to order him rearraigned under the original 

charges in the absence of a new trial order in the original 

opinion of this Court. As with defendant's double jeopardy 

argument, his initial premise that we did not grant a new 

trial is erroneous. Only if we were persuaded of that fact 

would Cardwell's due process claims have any possible 
validity. We are not so persuaded. 

The statute we are charged with disregarding, section 

46-20-707, MCA, provides that, "[i] f a judgment against the 

defendant is reversed without ordering a new trial," this 

Court must direct that the defendant be discharged from 

custody. This argument again urges this Court to disregard 

the language of the original opinion stating unquestionably 

that the reversal of the District Court's judgment on the 

amended information did not preclude the refiling of charges 

against this defendant. In light of the fact that we did 

indeed grant a new trial, our action was beyond the 

parameters of section 46-20-707, MCA, and this Court was not 

bound by its provisions. 

Cardwell further argues that the original information 

had no effect since it became functus officio upon the 

filing of the amended information. 42 C.J.S. Indictments 

and Informations B 238 at 1248. Therefore, when the amended 

information was dismissed, there was no information then 

existing and Cardwell was illegally detained. This Court is 

of the opinion that the defendant has incorrectly 

interpreted the operation of the doctrine and that he 

misconstrues the effect of this Court's order dismissing the 

amended information. 

Although the question is one of first impression for 

this Court, it is our opinion that the original pleadings 

would become functus officio only if the amended information 

were valid. This Court held in the first Cardwell opinion 

that the amended pleading was not valid under the 

Constitution. As a result, the invalid amendment could not 

render the original information functus ----- officio. This 
ruling adopts the position enunciated in State v. Thompson 

(Mo. 1965), 392 S.W.2d 617, that where an unauthorized or 

otherwise improper amended information is quashed or 

dismissed, further proceedings may be had on the original 

information. 

This Court's order dismissing the amended information 

simply wiped the slate clean in District Court from that 

point in time at which we determined that the State's 

amended information had not been properly filed. The order 

had no effect on the proceedings that occurred prior to that 

time, including the filing of the original information. As 

a result, this Court properly ordered that defendant be 

bound over to the District Court to proceed from that point. 

Speedy Trial 

Cardwell cites our decision in State v. Harvey 

(19791, Mont. , 603 P.2d 661, 36 St.Rep. 2035, 

arguing that when this Court considers the factors relating 

to speedy trial guarantees we should reverse his conviction. 

The defendant alleges that unnecessary delay has 

deprived him of his right to a speedy trial, and 

specifically names this Court as the primary malingerer in 

the resolution of his first appeal. Cardwell claims that 

the 174 days we used to decide the case was unreasonable and 

that his conviction should be reversed. We cannot agree. 

Once again defendant's assignment of error hinges 

upon a finding that there was no new trial granted by us in 

the previous Cardwell opinion. For the reasons discussed 

above, we find that we granted a new trial by the language 

of the opinion, if not by the remittitur order. This being 
the case, Cardwell is in error when he argues that the 

crucial time frame began upon his arrest. We adopted the 

position in State v. Sanders (1973), 163 Mont. 209, 516 P.2d 

372, that, in cases of retrial, it is the time of the 

remittitur which is controlling in determining defendant's 

relative speedy trial rights. 

In this case, the time elapsed between this Court's 

remittitur and defendant's second trial was thirty-three 

days. We do not find this period offensive to Cardwell's 

constitutional guarantees or prejudicial to his cause. 

Compare State v. Harvey, supra. 

We affirm. 

We concur: