No. 86-551 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDENNIS JAMES COLLINS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Meagher, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Philip F. Walsh, White Sulphur Springs, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

John V. Potter, Jr., County Attorney, White Sulphur 

Springs, Montana 

Submitted on Briefs: Feb. 5, 1987 

Decided: March 24, 1987 

. , ,,,, - -- Filed: '. : %=' ;i 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Dennis James Collins appeals his conviction in Meagher 

County District Court for operating a motor vehicle while 

adjudged a habitual traffic of fender. Three issues are 

raised on appeal: (1) whether the language of the information 

was sufficient to apprise Collins of the nature of the charge 

brought against him; (2) whether the District Court had 

subject matter jurisdiction of the case; (3) whether the 

information was duplicitous in that it charged two separate 

criminal offenses. We affirm. 

In May 1986, Collins was cited for operating a motor 

vehicle as a declared habitual offender under 5 61-11-213, 

MCA. The matter was transferred to the District Court for 

trial and an information was filed by the State. The 

relevant part of the information states as follows: 

[a] ccuses the Defendant, Dennis James 

Collins, with the crime of driving a 

motor vehicle on a public highway of this 

State at a time when his privilege to do 

so was revoked in violation of 

§ 61-5-212, Montana Codes Annotated, with 

increased penalty provisions as provided 

in S 61-11-213 Montana Codes Annotated, 

by reason of the fact that the said 

Defendant had been adjudged an habitual 

traffic offender, which judgment was 

still in effect, and more particularly 

that on May 25, 1986, at approximately 

11:53 p.m., the said Dennis James Collins 

purposely and knowingly drove, operated 

and was in control of a 1973 Chevrolet 

Nova automobile on U. S. Highway 12 and 

within the City of White Sulphur Springs, 

Meagher County, Montana, at a time when 

the privilege of the said Dennis James 
Collins to operate a motor vehicle had 

been revoked and the Defendant had been 

adjudged an habitual traffic offender by 

order of the District Court of Meagher 

County dated April 3, 1984 in Cause no. 

5936, which adjudication as an habitual 

traffic offender was still in effect. 

The penalty upon conviction of the 

offense charged is imprisonment for a 

period of not more than one year or a 

fine of not more than $1,000, or both, as 

provided in § 61-11-213 Montana Codes 

Annotated. 

At trial Collins did not dispute the allegation that he 

had been adjudged a habitual traffic offender or that he had 

been driving a motor vehicle at the time he was cited. He 

chose to defend on the basis of necessity. As will be shown 

by citation to the relevant statute below, necessity is a 

defense only to a person adjudged to be a habitual traffic 

offender. A jury found Collins guilty of operating a motor 

vehicle as a declared habitual offender. The court fined 

Collins $1,000 and sentenced him to one year in the county 

iail with all but 120 days suspended. 

Section 61-11-213, MCA, reads as follows: 

Any person found to be an habitual 

traffic offender under this part, and who 

thereafter operates a motor vehicle in 

this state while the order of the court 

prohibiting such operation remains in 

effect, shall be guilty of a misdemeanor, 

and upon conviction thereof shall be 

imprisoned for a period of not more than 

1 year or fined not more than $1,000, or 

both. However, in cases wherein the 

prohibited operation of a motor vehicle 
by an habitual traffic offender is 

necessitated in a situation of extreme 

emergency in order to save life, limb, or 

property, he shall not be deemed guilty 

of a violation under this part. 

Collins first argues that the information was 

insufficient and thereby failed to apprise him of the charge. 

It is interesting to note that in his brief, Collins makes 

significant concessions as to his knowledge and awareness of 

the charge being brought against him. We quote directly from 

the brief: 

Mr. Collins concedes that he was not 

completely surprised by the particular 

evidence admitted against him at trial. 

The officer who originally ticketed Mr. 

Collins charged him with driving while 

adjudged an habitual traffic offender. 

The case was tried by respective counsel 

as if it were an habitual offender case. 

Mr. Collins' counsel admitted as much in 

his motions to the Court after the close 

of trial evidence (Transcript of Motions, 

P. 5). The evidence adduced by the 

prosecution at trial was generally known 

and expected by Mr. Collins. 

During the argument on Collins' motions to dismi-ss, the 

following exchange took place: 

THE COURT: Well, are you saying that he 

[the State] stated an offense in the 

information that's different from what he 

[Collins] is being tried with today? You 

don't deny the fact that the trial today 

has to do with driving as a habitual 

traffic offender while he doesn't have 

any license? 

MR. WALSH: No, I think we all understand 

that. 
In addition, the jury instructions clearly show that Collins 

was tried on a charge of operating a motor vehicle while an 

adjudged habitual traffic offender. The general rule is that 

when the facts, acts and circumstances are set forth with 

sufficient certainty to constitute an offense, it is not a 

fatal defect that the complaint gives the offense an 

erroneous name. State v. Handy (Mont. 1986), 719 P.2d 766, 

768, 43 St.Rep. 897, 899, citing State v. Longneck (1981), 

196 Mont. 151, 154, 640 P.2d 436, 438, and quoting State v. 

Schnell (1939), 107 Mont. 579, 585, 88 P.2d 19, 22. This 

means that an erroneous statutory reference will not 

invalidate the charge. Handy, 719 P.2d at 768. 

While the State erroneously cited to S 61-5-212, MCA, 

in the information, the facts and circumstances subsequently 

described in that same information unmistakably point to an 

alleged violation of § 61-11-213, MCA. Further, the penalty 

provision of the information to which we cite tracks the 

language of S 61-11-213, MCA. A person of common 

understanding would know that the State was charging a 

violation of S 61-11-213, not S 61-5-212. Collins admitted 

as much in his brief. Again, we reiterate the point that the 

name of a crime is controlled by the specific acts charged. 

State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19. The 

information contained harmless error and was therefore 

sufficient to apprise Collins of the crime charged. See 

State v. Pearson (Mont. 1985), 704 P.2d 1056, 1059, 42 

St.Rep. 1253, 1256. 

The second issue is whether the District Court had 

subject matter jurisdiction of the case. The jurisdictional 
statute in question is 5 61-11-214, MCA, which we quote in 

full: 

For the purpose of enforcing the 

provisions of this part, in any case in 

which the defendant is charged with 

operating a motor vehicle while his 

license to do so is suspended or revoked, 

or is charged with driving without a 

license, the court, before hearing such 

charge, shall ascertain whether the 

defendant has been adjudged an habitual 

traffic offender and by reason of that 

judgment is prohibited from operating a 

motor vehicle in this state. If the 

court determines that the defendant has 

been so adjudged and that that judgment 

remains in effect, the court shall 

certify the case to the district court of 

its jurisdiction for trial. 

Collins was charged with operating a motor vehicle while an 

adjudged habitual traffic offender. He was not charged with 

operating a motor vehicle while his license was suspended or 

revoked, or driving without a license and therefore no 

certification to district court was required. The District 

Court had subject matter jurisdiction over the case. 

The third issue is whether the information was 

duplicitous in that it charged two separate criminal 

offenses. As stated previously, the information contained an 

erroneous reference to 5 61-5-212, MCA. However, the 

information clearly intended to charge Collins with driving 

while an adjudged habitual offender, and was interpreted as 

such by Collins. In addition, the jury was instructed that 

driving while one's license is revoked is a lesser-included 

offense of driving while an adjudged habitual traffic 

offender. The jury was also informed that it could not find 
Collins guilty of any lesser-included offense if it found him 

guilty of driving while an adjudged habitual traffic 

offender. Finally, the jury was instructed that it could 

only convict Collins of one offense. We conclude that the 

information was not duplicitous. 

Affirmed. 

Justice 

f!. L 1 

We concur: