No. 88-563 IN THE SUPREME COURT OF THE STATEOF MONTANA

STATE OF MONTANA, Plaint.iff and Appel-lant 

### ,-17sJOEL SCHWICTENRERG, Defendant and Respondent.

APPEAL FRON: District Court of the Fourth Judicial District, In and for the County ofMissoula, The Honorable James El. Whee!i.s, Judaepresiding. COUNSEL OF RECORD: ForAppellant: Pon. Marc R-acicot,Attorney General, Helena,Montana Clay Smith,Asst. Atty. General,Helena Robert L. Deschamps, 1x1,County Attorney; Craig Friedenauer,Deputy County Atty., Missoul.a,

### Manta-na For Respondent: RonaldMacDonald; Datsopoulos,Macnonald and Zind, Nissoula, Montana

Submitted on Briefs: March 23, 1989 Decided: April 2711989 Y w, Filed: I? 6. i3) ~lr- >'O

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# -Mr. Justice Fred J. Weber delivered the Opinion of the Conrt.

The State ofMontana appeals the dismissal of a criminal proceeding against.the defendant, Joel Schwictenburg, in the District Court for the Fourth Judicial District, Missou1.a County. We reverse. The defendant was charged in justice court with fai.lure to stop at the scene of an accident, in violation of 5 61-7-104, MCA, and driving under the infl.uenceof drugs or alcohol in violation of 61-8-401, MCA. At trial, the defendant was found guilty of failing to stop at the scene of an accident,but not guilty of driving under the influenceof drugs or alcohol. The defendant then appealed his conviction to the DistrictCourt. At a combined arraignment and omnibus hearing, the defendant pled not guilty and was released on his own recognizance. TJater,he agreed to plead guil-tyto a violation of 61-7-104, MCA, or failure to st~p at the scene of an acci-, dent, in exchange for certain recommendationsby theprosecution. A plea bargain agreement was entered into between the defendant, his counsel, and the Deputy County Attorney Craig Friedenauer. At the change of plea hearing,Mr. Friedenauer and a legal intern, Robert Long, appeared on behalf of the State. Itwas at that hearing that the District Court judge dismissed the proceeding against the defendant after the following exchanges:
THE COURT: Stat-eversus 7nelSchwictenhurg You are Mr. Schwictenherq3 MR. SCHkIICTENRERG: Correct. MR. FRIEDENAUP: This is Robert Long, ar intern in our office.THE C0UF.T:

NR. SCHWICTENRERG: THE COURT:

MR. SCHWICTENRERG: THE COURT:.

KR. SCHWICTENBERG: THE COURT:

MR. SCHWICTENBERG: TI-IE C0IJF.T:

MR. SCHWICTENRERG: THE C0UR.T:

MR. SCH\A~ICTENRERG : THE C0TJF.T:

MR. SCHWICTENBERG: THE COURT: Long, go get a jacket. The calendar says you are going to change your plea now; is that true? Correct. Is this leaving the scene of the accident? Yes. How do you wj-sh to plead to that? Guilty. Is this 

### in accordance with a plea bargain ln thi.s case? Yes. What's the plea bargain? Has anything pressured you into enteringa plea, other than the plea bargain? Just strictlythepleabargain. In exchange for this, you are goingtoenter a plea, correct? Correct. Have any other promises or threats heen madetoYOU? No. Is it true that on or about the 15th of April, 1988, you were driving a Dodge pickup--wait a minute. I'm trying to find somewhere where it te1l.s whatyou were charged withinpractical terms. Doyou wanta copy of the Complaint?THE COURT: There is a Complaint in here that charges him with DUI. This is nuts. The case 

### is dismissed. The Minutes and Note of Ruling for that date further stat.e: Deputy County Attorney Craig Friedenauer and the Defendant with his counsel, Rebecca Summervi1!.e, came intoCourt. Defendant's motion to change his plea was heard and granted. Thereupon by permissi-onof the Court and consent of the County Attorney the Cefendant withdrew his plea of "Not Guilty" and entered his plea of "Guiltyas charged in the Complaint." The Courtwas advised that 

### a Plea BargainAgreement had been entered into and is on file herei-n. Upon questioning, the Court was unable to find the appropriate documents in the Court fLle and thereforedismissed the casewith prejudice. Following the State's appeal of the dismissal,the judge issued an order stating that he had instructed the student intern to remove himself from the courtroom until he was appropriately attired and thathe had spent considerable time searching through the court file for the appropriate charge but failed to lccate it. The judge offered the following reasons for the dismissal: 

### 1. The Nissoula County Attorney's Office is responsible for insuring compliance with the Student Practice Rule particularly when students are appearing inDistrictCourt proceedings in criminal cases. The Court expects that this supervision will be real and notperfunctory. 2. The appearance of the student, in clear violation of the District Court Rules, indicates to this Court the supervisi-ngresponsibility is not being held to sufficient standards. 3. The Court not being able to proceed in an orderly fashionwith the acceptance of aplea as a result of the violation of the DistrictCourt Rules by the County Attorney's 

### Office wec disruptive anddelayed the Court's proceeclings. No supervisorl~ attorney presente6. hinself to the Court with any familiarity which would have allowed proceeding excepting an offer to get the Court a copy of the Complaint. 4. The Court Fj-ndsthat in order to communicate to the County Attorney's Office that this Court is dissatisfiei?with the degree of preparation and compliance with the Student PracticeRule providing responsible supervisory participation that it is necessary to dismiss the misdemeanor Complaint. The issue now before this Court is whether the District Court abused its discretion by dismissinq the proceeding, aqainst the defensantwith prejudice. Section 46-13-201(1),MCA,provides that: The court may, either on its own motion or upon the application of the attorney prose cut in^ and in furtherance of justice, order a complaint, information, or indictment to he dismissed; however, the court may not order a dismissal of a complaint, informaticn, or indictment, or a count contained therein, charging a felony, unless good cause for fiismissal is shown and the reasons for the dismissal are set f0rt.h in an order entered upon theminutes. The clismissed charge in this case was a misdemeanor, which could arguably be said not to be subject to the "goo6 cause for dismissal"required for felonies under the statute. As the State points out, that clause addressing felony charqes was added to 46-13-201(1),MCA, in 1985. Prior to that time, no distinctionwas made between misdemeanor and felony charges and either could be dismissed at the court's discretion if in furtherance of justice. "In furtherance of iustice" remains the standard under the first phrase cS 9 46-13-203.(I), MCA, which we hold to be applicable in this case. That standard has been interpreted in pre-1385 case law as meanjnq that the authority of the court to d.ismissaproceeding is not unbridled, andmust he exercised in view 

### of the const?-tutional rights of the defendant and the interests of s0ciet.y. Statev. Roll (19&3),206 Mont. 259, 261-62, 670 P.2d 566, 568. Seealso Statev. Cole (1977),174Mont. 380, 571 P.2d 87. Prior to addressing whether the court's dismissal Wac "in furtherance of justice," the defendant raises several procedural pointswhich he contends render the State's appeal Ineffective. First, defendant contends that at the time of the appeal,no finalorder or iudqment existed as abasis for that appeal since the District Court did not issue its order until after the filing of the State" appeal. The DistrictCourt's written order ofNovember 7did not alter the substantive effect of its September 30 oral dis-- missal at the change-of-pleahearing. The criminal proceeding against Mr. Schwictenburg was effectively dismissed upon the court's oral declaration of September 30, which was further reinforced 

### by the entry contained in theminutes for that date. Section 46-20-103(2)(a), MCA, authorizes the State to appeal in a criminal proceeding "from any court order or judgment the substantive effect of which results in



# .. .dismissing a case." (Emphasissupplied.) This section does not require that the order be in writing. Section 46-13-201(1), MCA, directs only that the reasons for felony dismissalsbe set forth in an order entered upon theminutes. We recognize the purpose behind the requirement that reasons for clismissal be set forth, which is to provide this Court wlth a basis to reviewwhether the trial judge exercised his discretion to dismiss within the "in furtherance of justice" standard. State

### v. Cole, 571 P.2d at 87. In this case, however, ample basis appears from the District Court's oral dismissal of September 30,which is accompaniedby the tran-- script of theproceeding and 

### the Minutes and Note of Ruling,to serve as abasis for review. We hold that the State could properly appeal from the court's order of September 30 dismissing the case against Mr. Schwictenburg, and that the accompanying minutes provide an adequate basis for our review of thematter. Turning now to the substantive issue of this case, the State argues that theDistrict Court abused itsdiscretion in dismissing the proceeding against the defendant even 

### if the order of November 7 is considered. The defendantargues that the District Courtwas justified in its action because of the court's frustration in not heing able to locate a particular document which wa-sadmittedly in the court File, the appear-- ance of the student intern in violation of theDistrict Court Rules, the failure of the deputy county attorney Craig Friedenaur to identify himself as the supervising attorney, and Plr. Friedenaur's failure to present himself to the court asbeing familiarwith the case. The latter two contentions are not supported by the record, which reflects that Mr. Friedenaur was involved in the case From Its inception and that the District Court acknowledged his participation. The first sentence of the minutes from the hearing states that, "Deputy County Attorney Craig Friedenauer and theDefendantwith his counsel,Rebecca Summerville, came into Court." Mr. Friedenauer's name appears on the plea agreement and it is signed by him. Furthermore, it was Mr. Friedenauer who introduced the legal intern to the court at the change of plea hearing. We conclude that these justifications do not find support 

### in the record. and do not form 

### a basis for the Cistrict Court's dism4ssal. The defendant argues that it was within the court's discretion tc dismissbecause of its frustration in not being abl~ to locate 

### a document together with the failure cf astudent intern to azhere to the rules of decorum. We recognize the broad discretion allowed to the District Court in enforcing its own rules, that discretion must be balanced with the interests of society as outlined in State

### v. Roll, ----- 670 P.2d at 560. In balancing the absence of a court document and the failure in court 6ecorum against the interests of society in proceeding with a case inwhich a plea bargain had been arranged,we conclude that the balance comes out in favor of the interests of society. We hold that t-hedismiss-. a1 

### of this case was not "in furtherance of justice" and was an abuse of discretion. We hold that the dismissal is set aside with the result that the prosecution may proceed to trial on the charge of ~~iolation of 

### 5 61-7-104, WCA, or failure 

### to stop at the scene 

### of an accident.

We Concur: