### No. 80-314 INTHE SUPREME COURTOF THE STATEOF MONTANA 1981

THE STATEOF MONTANA, Plaintiff and Respondent,

vs

# . CURTIS CARDWELL, DefendantandAppellant.

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin. Hon. W. W. Lessley, Judgepresiding. Counsel of Record: ForAppellant: A. Michael Salvagni argued, Bozeman,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Chris Tweetenappeared,Assistant Attorney General,

Helena,Montana Donald White, CountyAttorney, Bozeman,Montana Michael Lilly argued,Deputy CountyAttorney, Bozeman,

Montana

Submitted: February 17, 1981 Decided: 

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## 1981 Filed: 

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v I 

### ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Cardwell appeals his conviction by a Gallatin County jury of tampering with a witness andmisdemeanor assault. In State v. Cardwell (1980), 

### -Mont. 

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## , 609 P.2d 1230, 37 St.Rep. 750, we reversed the defendant's first convictionson charges of aiding and abetting another inthe 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. After 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 trialviolations. The motion was denied. The cause went to trial on June 10, 1980. The jury returned a verdictof guiltyon the lesser included offenses of misdemeanor assault and tampering with a witness, a felony. This appeal follows. The underlying factsof this case have no bearing on the issues involved in the appeal and willnot be recited. They can be found in our first Cardwell opinion, cited above. Defendant offersthree issues for our review: 1. Did the second trialviolatedefendant's right to be protected against double jeopardy as guaranteed by the United StatesConstitutionand theMontana Constitution? 2. Did the action of this Court and the subsequentdetention and trialviolate defendant's rights under thedue process clauses of the United States Constitution and the Montana Constitution? 3. Was defendant's right toa speedy trialdenied?

DoubleJeopardy This Court's remand order in State v. Cardwell, supra, provided: "The cause is reversed and the amended information against thedefendant is ordered dismissed." Cardwellmaintains thathis second trialviolated his constitutional rights against double jeopardy. Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. See alsoArt. 11, Section25, 1972Mont. Const. Defendant cites numerous decisions by thisCourt for the proposition that double jeopardy exists whenever this Court fails toorder a new trial. Statev. 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 thesedecisions. In Ellsworth, supra, this Court explained that the rule of law was clear: 

### "

# . . . a reversal of ajudgment of conviction upon appeal and a retrial does not constitute doublejeopardy." 141Mont. at81. 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 butmerely 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 athisrequest theverdict againsthim is set aside and a new trialgranted. Defendant Cardwell admits that if this Court had ordered or granted a new trial, as inAus 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 thisCourt directing thenew proceeding. The issue before us 

### ismore properly framed in terms of whether the failuretospecifically and expresslyorder a

new trial necessarily precludes further action. It 

### is our opinion that it does not. Cardwell correctlyrecites the caselaw applicable to former jeopardy protections asthey have been interpreted by thisCourt 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. Inthebody of theCardwell opinion, we wrote: "Section46-11-403(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 totrialon thecharges 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 

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### -------------- information, we do not mean topreclude

### -- theIt 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, thata new trialwas indeed granted by theoriginalopinion, 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 thisCourt for

an order discharging him from custody in compliance with section46-20-707, 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 StatesConstitution and Article 11, Section 17, of the 1972Montana 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 trialorder inthe 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 possiblevalidity. We arenot sopersuaded. The statutewe 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 thisCourt todisregard the language of the original opinion stating unquestionably that the reversal of the District Court's judgment on the amended informationdid notpreclude 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 section46-20-707, MCA, and thisCourt was not bound by 

### itsprovisions. Cardwell further argues that the original information had no effect since it became functusofficio upon the filing of the amended information. 42 C.J.S. Indictments and Informations 

### B 238 at1248. Therefore, when the amended information was dismissed, there was no information then existing and Cardwell was illegallydetained. This Court is of the opinion that the defendant has incorrectly interpreted the operation of the doctrine and that he misconstrues the effectof thisCourt'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 officioonly if the amended information

were valid. This Court held in the firstCardwell 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. Thisruling 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. ThisCourt'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 effecton theproceedings thatoccurredprior tothat 

### time, including the filingof the original information. As

a result, this Court properly ordered that defendant be bound over totheDistrictCourt toproceed from thatpoint.

SpeedyTrial 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 tospeedy trialguaranteeswe should reversehisconviction. 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 174dayswe used todecide thecasewas unreasonable and thathisconviction shouldbe reversed. We cannot agree. Once again defendant's assignment of error hinges upon a finding that therewas no new trialgranted 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 notby the remittitur order. This beingthe case, Cardwell 

### is in error when he argues that the crucial time frame began upon his arrest. We adopted the position in Statev. Sanders (1973), 163Mont. 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 trialrights. 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 Statev. Harvey, supra. 

### We affirm.

We concur: