No. 13786 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Appellant,

-vsFRANK COLE, JR., Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judqe presiding. Counsel of Record: For Appellant: Hon. Mike Greely,Attorney General, Helena, Montana Arthur W. Ayers, Jr., argued,County Attorney,

Red Lodge, Montana For Respondent: Kampfe and Perhacs,Red Lodge, Montana D. Frank Kampfe argued, Red Lodge, Montana

Submitted: September 26, 1977 Decided: 

### 'JCi

### 26 

## 1977Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. The Carbon County attorney charged defendant with four counts of officialmisconduct under section 94-7-401, R.C.M. 1947. Defendant moved todismiss the four count Information. The districtcourt granted themotion todismiss Count I and denied the dismissal of Counts 11, 111, and IV. The Carbon County attorney appeals the dismissal. On January 20, 1977, the Carbon County attorney applied tothe districtcourt for leave tofilean Information charging defendant with four counts of officialmisconduct while chairman of the Carbon County Board of County Commissioners. The county attorney supported his applicationwith an affidavitwherein he setforth various facts tending toestablishprobable cause forbelieving defendant committed the offenses. The court granted leave to filethe Information. Count I of the Information charged that defendant, in hisofficial capacity, had knowingly performed an actwhich he knew was prohibited by law (section 16-1803, R.C.M. 1947) when he entered into a contract topurchase road machinery from Allied Equipment Company for a sum inexcess of $10,000 without first publishing a notice calling for bids. On February 14, 1977, defendant filed

### twomotions to dismiss. In the motion entitled ''MOTION TO DISMISS" defendant asserted that Count I failed tocharge an offensebecause section 16-1803 pertains only tothe "county governing body" qnd not to

an individual commissioner, such asdefendant. In hismotion entitled "MOTION TO DISMISS 

## - #2", defendant alleged the affidavitshe submitted in support of thatmotion showed he did not commit an offense. Defendant and theAllied Equipment Company salesman and president swore in the affidavits accompanying "MOTION TO DISMISS 

## - #2" thatno contract had been entered intoby defendantwith ~llied, as alleged in the Information's Count 

### I. The affiants all asserted that, although defendanthad signed an order form, the purpose of the formwas to allow the salesman to order the equipment to county specifications of the equipment might be available when the county accepted equipment bids. The affiants stated the form in no way bound Carbon County to the purchase of the machinery. Defendant and the other two county commissioners stated in affidavits that the commissionerspublished a call for bids in the February 26, March 

### 4 and March 11, 1976,Carbon County News and did not acceptAllied Equipment Company's bid until the regular meeting of the commissionerson March 11, 1976. The Carbon County attorney submitted no counter-affidavits and offered no other proof to rebut the sworn statements in the affidavits submitted by defendant. On March 7, 1977, the district court ordered that Count I of the Informationbe dismissed, without setting forth the reasons for the dismissal. The issues on appeal are whether a trial judgemay dismiss a criminal caseprior to trial over the objection of the prosecuting attorney, and, if he may, whether the trial judge in this case followed the proper procedure in dismissing Count I. Appellant state of Montana notes that the district court did not specify the basis for its dismissal of Count I,and asserts that either ground for dismissal advanced by defendant

was insufficient. The state argues the proscription in section 16-1803(1), R.C.M. 1947,against a county governing body entering into certain contracts without firstpublishing a notice calling for bids, applied to each county commissioner individually,

as well as to the commissionersas a body. Appellant maintains dismissal for the reason that section 16-1803(1) did not apply to defendant as an individual was therefore incorrect. Appellantasserts that neither could the judge dismiss Count I on the basis of the affidavits defendant submittedwith his "MOTION TO DISMISS

## - #2". The affidavits went directly to the general issue to be determined at trial, that of whether defendant had actually entered into an unauthorized contract. The state contends that issue is a question to be decided by the jury at trial and not by the judge prior to trial. As the state notes, section 95-1701,R.C.M. 1947,which sets forth the defenses and objectionswhich a defendantmay raise before trial, allows motions only for 

### "Anydefenseor objection which is capable of determination without the trial of the general issue

## * * 

## *." Unlike the defense of entrapment raised by pretrial motion in State ex rel. Hamlin v. ~istrict Court, 163 Mont. 16, 515 P.2d 74 (1973), defendant's defense in his "MOTIONTO DISMISS

## - #2" went squarely to the general issue of existence or nonexistence of a contract,and was, therefore,not authorized by section 95- 1701. The judge could,however, for the reason there were insufficient facts to bring defendant to trial,dismiss Count I of the Information under section 95-1703,R.C.M. 1947,which provides "The courtmay 

## * * * on its own motion 

## * * * and in furtherance of justice, order an 

### * * 

## * information

## * * * to be dismissed 

## * * *." The defendant in State ex rel. Forsythe 

### v. Coate, Mont

# . , 558 P.2d 647, 33 St.Rep.1350 (1976),was also charged with official misconduct, and sought to dismiss the charge. This Court held the district judge in Forsythe had the authority under section 95-1703 to dismiss the indictment where he was thoroughly familiarwith the facts underlying the alleged offense. Themotion to dismiss by the defendant in Forsythewas in effect a motion requesting the court to exercise its discretion to dismiss a charge "on its own motion" and "infurtherance of justice". See: People v. Benson, 64 Cal.App.3d Supp. 10, 134 Cal.Rptr. 766 (1976). The authority of the court to dismiss an Information under section 95-1703, however, is not unbridled. The court nay only dismiss the Information if dismissal is "in furtherance of justice". Section 95-1703 further requires "the reasons of the dismissal must be set forth in an order entered upon the minutes." If the reasons for dismissal are not set forth, this judge Court has no basis to review whether the trial/exercised his discretion to dismiss within the "in furtheranceof justice" standard. The "in furtheranceof justice" standard, though not defined in section 95-1703, is not merely verbiage; rather, it requires that the court exercise its discretion to dismiss a criminal charge 

### " 

## * * * in view of the constitutional rights of the defendant and the interestsof society

## * * 

## *". State ex rel. Anderson v. Gile, 119Mont. 182, 187, 172 P.2d 583 (1946). The California courts, interpreting the California Penal Code, section 1385, a sectionvirtually identical to section 95-1703,R.C.M. 1947,have stated the factorswhich a trial court should consider before dismissing 

### a case, either before trial or after a verdict, includeweighing the evidence indicative of guilt or innocence, the nature of the crime involved, the length, if any, of the defendant's pretrial incarceration,and the possible harassment and burdens imposed upon the defendant by a trial. Peoplev. Superior Court of Marin County, 69 Cal.2d 491, 72 Ca1.Rpt.r. 330, 446 P.2d 138, 147 (1968);People

### v. Ritchie, 17 Cal.App.3d 1098, 95 Cal.Rptr.462, 466 (1971). Because the trial judge in this case did not set forth the reasons for dismissing Count I,we can only guess as to the rationale for the dismissal. If he dismissed the Count because he felt that an individual commissioner cannot violate section16-1803, R.C.M. 1947, the rationale advance by defendant in his "MOTIONTO DISMISS", the judgewas incorrect. An individual commissioner may be criminally liable for official misconduct under section 94-7-401(1)(c),R.C.M. 1947, for entering into a contract for the purchase of road equipment in excess of $10,000 cost,without publishing notice calling for bids. Section 94-7-401(1)(c)states: "(1) 

### A public servant commits the offense of official misconduct when, in his official capacity 

## * * * "(c) with the purpose to obtain advantage for himself or another,he performs an act in excess of his lawful authority 

## * * 

## *." Although it is true, as defendant maintains, that section 16-1803 allows only the county governing body as a unit to enter into such construction contracts, this sectionmerely defines the scope of the commissionerstlawful authority. Any contract made by an individual board member without board approval is "an act in excess of his lawful authority",and a crime under section 94- 7-401(1)(c)

# . Defendant maintains that the affidavits he submitted with his "MOTIONTO DISMISS

# - #2"were uncontested by the state, clearly proved defendant had not entered into any contract,and warranted the judge in dismissing Count I "inthe furtheranceof justice". Defendant asserts the judgewas fully cognizant of the attendant facts of this case because the affidavitswhich defendant submitted with his "MOTIONTO DISMISS

# - #2"were identical to the affidavitshe submitted in support of 

### a motion for summary judgmentwhich the judge previously granted in a civil

case. Defendant maintains that the affidavits stood uncontroverted by any other evidence in the civil case,were part of the court record, and provided the judge with the basis onwhich to make an informed judgment to order dismissal of Count I of the criminal Information.If these were the judge's reasons for dismissing Count I,he did not state them in the record. In an order filed March 9, 1977, the judge merely stated that "IT IS ORDERED that said motion to dismiss Count I be, and hereby is, granted." The judge had no authority under section 95-1701 to grant a defendant's motion to dismiss based on a defense which went to the general issue to be determined at trial. If the judge wishes to dismiss Count I of the Information on his ownmotion and in the furtheranceof justice,under section 95-1703, he must set forth the reasons for the dismissal in an order entered on the minutes. The order of dismissal is vacated and the case is remanded to the district court for furtherproceedings consistent with this opinion. -3

Chief Justice

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Justices

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