No. 88-563 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaint.i f f and Appel-lant , -17sJOEL SCHWICTENRERG, 

Defendant and Respondent. 

APPEAL FRON: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James El. Whee!i.s, Judae presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: 

Ronald MacDonald; Datsopoulos, Macnonald and Zind, 

Nissoula, Montana 

Submitted on Briefs: March 23, 1989 

Decided: April 271 1989 Y 

w, Filed: I? 

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

The State of Montana 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.uence of 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 influence of 

drugs or alcohol. The defendant then appealed his conviction 

to the District Court. 

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-ty to a violation of 

61-7-104, MCA, or failure to st~p at the scene of an acci-, 

dent, in exchange for certain recommendations by the prosecution. 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. It was at that hearing that the District Court judge 

dismissed the proceeding against the defendant after the 

following exchanges : 

THE COURT: Stat-e versus 7nel Schwictenhurg 

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 

entering a plea, other than the 

plea bargain? 

Just strictly the plea bargain. 

In exchange for this, you are 

going to enter a plea, correct? 

Correct. 

Have any other promises or 

threats heen made to YOU? 

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 what you were charged 

with in practical terms. 

Do you want a 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 into Court. 

Defendant's motion to change his plea was heard and 

granted. Thereupon by permissi-on of the Court and 

consent of the County Attorney the Cefendant withdrew his plea of "Not Guilty" and entered his plea 

of "Guilty as charged in the Complaint." 

The Court was advised that a Plea Bargain Agreement 

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 therefore dismissed the case with 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 that he 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 in District Court proceedings in criminal 

cases. The Court expects that this supervision 

will be real and not perfunctory. 

2. The appearance of the student, in clear 

violation of the District Court Rules, indicates to 

this Court the supervisi-ng responsibility is not 

being held to sufficient standards. 

3. The Court not being able to proceed in an 

orderly fashion with the acceptance of a plea as a 

result of the violation of the District Court Rules 

by the County Attorney's Office wec disruptive and 
delayed 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-nds that 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 Practice Rule 

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 defensant with 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 the minutes. 

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 distinction was 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.ismiss a 
proceeding is not unbridled, and must he exercised in view of 

the const?-tutional rights of the defendant and the interests 

of s0ciet.y. State v. Roll (19&3), 206 Mont. 259, 261-62, 670 

P.2d 566, 568. See also State v. Cole (1977), 174 Mont. 380, 

571 P.2d 87. 

Prior to addressing whether the court's dismissal Wac 

"in furtherance of justice," the defendant raises several 

procedural points which he contends render the State's appeal 

Ineffective. First, defendant contends that at the time of 

the appeal, no final order or iudqment existed as a basis for 

that appeal since the District Court did not issue its order 

until after the filing of the State" appeal. 

The District Court's written order of November 7 did not 

alter the substantive effect of its September 30 oral dis-- 

missal at the change-of-plea hearing. 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 the minutes 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." (Emphasis supplied.) This section 

does not require that the order be in writing. Section 

46-13-201(1), MCA, directs only that the reasons for felony 

dismissals be set forth in an order entered upon the minutes. 

We recognize the purpose behind the requirement that reasons 

for clismissal be set forth, which is to provide this Court 

wlth a basis to review whether 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 accompanied by the tran-- 

script of the proceeding and the Minutes and Note of Ruling, 
to serve as a basis 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 the matter. 

Turning now to the substantive issue of this case, the 

State argues that the District Court abused its discretion in 

dismissing the proceeding against the defendant even if the 

order of November 7 is considered. The defendant argues that 

the District Court was justified in its action because of the 

court's frustration in not heing able to locate a particular 

document which wa-s admittedly in the court File, the appear-- 

ance of the student intern in violation of the District 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 

as being familiar with 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 the Defendant with 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 

dism4 ssal. 

The defendant argues that it was within the court's 

discretion tc dismiss because of its frustration in not being 

abl~ to locate a document together with the failure cf a 
student 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 in which a plea bargain 

had been arranged, we conclude that the balance comes out in 

favor of the interests of society. We hold that t-he dismiss-. 

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: