No. 86-551
INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
Plaintiff and Respondent,
-vsDENNIS JAMES COLLINS,
Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Fourteenth JudicialDistrict, Inand forthe County of Meagher, The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant: PhilipF. 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



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ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Dennis James Collins appeals his conviction inMeagher County District Court for operating a motor vehicle while adjudged a habitual traffic offender. Three issues are raised onappeal: (1)whether the languageof the information

was sufficientto apprise Collinsof the nature of the charge brought against him; (2) whether the District Court had subject matter jurisdiction of the case; (3) whether the informationwas duplicitous in that it charged two separate criminaloffenses. 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 statesas follows: [a] ccuses the Defendant, Dennis James Collins, with the crime of driving a motor vehicle on apublic highway of this State at a time when hisprivilege to do so was revoked in violation of § 61-5-212, Montana Codes Annotated, with increased penalty provisions as provided in S 61-11-213 Montana Codes Annotated, by reason of the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 saidDennis JamesCollins purposely and knowingly drove, operated and was in control of a 1973 Chevrolet Nova automobile on U. S. Highway 12 and within the City ofWhite SulphurSprings, Meagher County, Montana, at a time when the privilege of the said Dennis JamesCollins to operate a motor vehicle had been revoked and the Defendant had been adjudged an habitual traffic offender by order of the District Court of Meagher County dated April 3, 1984 in Cause no. 5936, which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 ofnot more than $1,000,orboth, as provided in § 61-11-213 Montana Codes Annotated.
At trial Collinsdid notdispute the allegation thathe 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 iailwith allbut 120days suspended. Section 61-11-213,MCA,reads as follows: Any person found to be an habitual traffic offender under this part, andwho thereafter operates a motor vehicle in this state while the order of the court prohibiting such operation remains in effect, shall be guilty of amisdemeanor, and upon conviction thereof shall be imprisoned for a period of notmore than 1year or fined notmore than $1,000,or both. However, in cases wherein the prohibited operation of a motor vehicleby an habitual traffic offender is necessitated in a situation of extreme emergency inorder to save life,limb, or property, he shall not be deemed guilty ofaviolationunder thispart. Collins first argues that the information was insufficientand thereby failed toapprisehim of the charge. It is interesting to note that in his brief, Collinsmakes significant concessions as to his knowledge and awarenessof the chargebeing brought againsthim. We quote directly from thebrief: 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 casewas tried by respective counsel as if itwere an habitual offender case. Mr. Collins' counsel admitted as much in his motions to the Court after the close of trial evidence (TranscriptofMotions, P. 5). The evidence adduced by the prosecution at trialwas generally known and expectedbyMr. Collins. During the argument on Collins' motions to dismi-ss,the following exchangetook place: THE COURT: Well, areyou saying thathe

[the State] stated an offense in the information that's different from what he [Collins]isbeing triedwith 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, Ithinkwe all understand that.In addition, the jury instructionsclearly show that Collins

was tried on a charge of operating a motor vehicle while an adjudged habitual traffic offender. The general rule isthat 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, thepenalty 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

asmuch inhisbrief. Again,we reiterate thepoint 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 jurisdictionof the case. The jurisdictionalstatute 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 todo so is suspended orrevoked, 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 jurisdictionfor trial. Collins was charged with operating a motor vehicle while an adjudged habitual traffic offender. Hewas not chargedwith operating a motor vehicle while his licensewas suspended or revoked, or driving without a license and therefore no certification to district court was required. The District Courthad subject matter jurisdictionover the case. The third issue is whether the information was duplicitous in that it charged two separate criminal offenses. As statedpreviously, the informationcontained 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 jurywas instructed that driving while one's license is revoked is a lesser-included offense of driving while an adjudged habitual traffic offender. The jurywas also informed that it could not findCollins 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 informationwas not duplicitous. Affirmed. 

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Justice 1

We concur: