No. 93-572 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, ex rel. 

JOHN C. TORRES, 

Petitioner, 

MONTANA EIGHTH JUDICIAL DISTRICT 

COURT, CASCADE COUNTY, and THE 

HONORABLE JOHN M. McCARVEL, 

Presiding Judge, 

Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen E. Hagerman & Marvin Anderson, Great Falls, 

Montana 

For Respondent: 

Michael Fanning, Deputy Cascade County Attorney, 

Great Falls, Montana 

Filed: 

Original Proceeding Submitted: May 26, 1994 

Decided: 3uly 6, 1994 
~ustice James C. Nelson delivered the Opinion of the Court. 

BACKGROUND 

This is an original proceeding. On February 9, 1993, John C. 

Torres, a/k/a John C. Hess, (Torres or the defendant) was charged 

by information in the Eighth Judicial District Court, Cascade 

County, with one count of Negligent Homicide, a felony, in 

violation of 45-5-104(1), MCA, (1991), alleged to have beer 

committed on or about June 20, 1992. On February 23, 1993, Torres 

entered his plea of not guilty and, by counsel, filed his Motion to 

Dismiss With Prejudice and a supporting brief. The grounds for his 

motion are not pertinent to our decision here. On March 5, 1993, 

the State filed its brief in answer to Torres' motion, and after 

arguments on March 25, 1993, the District Court orally denied 

Torres' motion, and filed its written order to that effect on April 

2, 1993. 

Torres, subsequently, on August 30, 1993, filed various other 

pretrial motions with a supporting memorandum. Included in his 

motions were five additional motions to dismiss based on alleged 

violations of the year and day rule, destruction of evidence, 

violation of equal protection and due process, double jeopardy and 

the interests of justice. Again, for purposes of this opinion, we 

are not concerned with the underlying merits of Torrest motions. 

On September 8, 1993, Torres filed additional pretrial motions, 

including another motion to dismiss alleging outrageous government 

conduct on the part of the prosecution. The State did not file any 

I written response to Torrest pretrial motions filed August 30, 1993, 

or September 8, 1993, until November 16, 1993, when it responded in 

writing to the motions filed September 8, 1993. 
The record indicates that a hearing on Torres' motions was 

held on September 9, 1993, and that the District Court dismissed 

defendant's motion to suppress and took his other motions under 

advisement. 

On September 10, 1993, the District Court entered its written 

order setting forth various facts underlying the Negligent Homicide 

charge and the procedural history of not only that charge, but of 

a related charge of DUI to which Torres had entered a plea of 

guilty in Justice Court and on which he had been sentenced to and 

had served jail time, all prior to the filing of the Negligent 

Homicide charge. The District Court concluded that Torres' state 

and federal constitutional rights to due process and fundamental 

fairness had been violated (1) by the State filing the Negligent 

Homicide charge; (2) because of outrageous government conduct (the 

court concluded that the prosecution had directed one of its 

potential witnesses, a highway patrolman, to cancel an appointmenc 

with defense counsel and to not talk with the defense without the 

prosecutor being present); (3) because the State failed to give 

adequate notice of its intention to introduce hospital medical 

records of the defendant's blood alcohol level (his blood sample 

submitted to the State Crime Lab had been compromised) ; (4) because 

the court found "serious questions" about the cause of death of the 

victim due to evidence being destroyed; (5) because of the late 

filing of the State's "Just" notice; and (6) under 5 46-13-401, 

MCA, in furtherance of justice. 

Following its "Judicial Conclusions" the District Court 

entered the following order: "Based upon the foregoing Conclusions, 

it is hereby ordered that this case is dismissed with preiudice." 
(Emphasis added) . 

On September 16, 1993, the State filed its Motion to 

Reconsider and Memorandum in Support alleging factual and legal 

errors in the District Courtls September 10, 1993, order of 

dismissal. The prosecution, concluding that the court's order was 

based on findings of fact for which there was no evidence and that 

the court was led into error by assertions of the defense, 

requested that the District Court ll... vacate its ruling and order 

a rehearing on the defendant's motions." 

On September 20, 1993, the State filed its Motion for 

Expedited Hearing on its Motion to Reconsider, and on September 21, 

1993, the District Court entered its Order Setting Hearing. In 

that order, the court set an omnibus hearing and, without any 

explanation, rescinded its previous order of September 10, 1993, 

dismissing the case with prejudice. 

On November 17, 1993, Torres filed in this Court his 

Application for Writ of Supervisory Control or Other Appropriate 

Writ and Supporting Memorandum alleging that the District Court war 

without jurisdiction to rescind its order of dismissal with 

prejudice and that he should not have to stand trial. On January 

20, 1994, after ordering and reviewing a response from the State, 

we assumed jurisdiction and ordered the parties to submit briefs on 

the following issue: 

Whether or not the District Court has the jurisdiction to 

rescind its order dismissing the information with 

prejudice and thereby reinstating the charge. 

This case, having been deemed submitted on the parties' 

briefs, is now ready for decision. Upon completion of our review 

we hold that the District Court was without jurisdiction to rescind 
its order dismissing the information with prejudice and, 

accordingly, we issue a writ of supervisory control and remand this 

case to the District Court with instructions that it enter an order 

vacating its September 21, 1993, order and reinstating its 

September 10, 1993, order dismissingthe information against Torres 

with prejudice. 

DISCUSSION 

I. 

At the outset, we note that in its brief the Cascade County 

Attorney's office changed the statement of the issue that we 

ordered briefed and, in addition to addressing Torrest legal 

arguments, included in its briefs a lengthy recitation of alleged 

facts not pertinent to the legal question at issue, along with 

arguments not relevant to that legal question. We admonish counsel 

that such tactics simply waste the time of this Court and opposing 

counsel, add nothing to the merits and presentation of one's case, 

delay our decision and may result in rejection of the offending 

brief. 

11. 

It is necessary that we also briefly address the 

appropriateness of our exercise of supervisory control in this 

case. The exercise of supervisory control by this Court is 

authorized by Article VII, Section 2 (2) of the Montana Constitutior, 

and by Rule l7(a), M.R.App.P. Supervisory control, being an 

extraordinary remedy, we are extremely reluctant to entertain such 

proceedings, especially where our acceptance of jurisdiction will 

interfere with the trial of the underlying case on the merits and 

where the defendant has an adequate remedy of appeal. State ex 
rel. O'Sullivan v. District Court (1946), 119 Mont. 429, 431-432, 

175 P.2d 763, 764. 

We have also held, however, that supervisory control is 

appropriate where the district court is proceeding under a mistake 

of law and, in so doing, is causing a gross injustice, State ex 

rel. Forsyth v. District Court (l985), 216 Mont. 480, 484, 701 P.2d 

1346, 1348; State ex rel. Fitzgerald v. District Court (1985), 217 

Mont. 106, 114, 703 P.2d 148, 153-154, and where, as here, 

requiring the defendant to stand trial would result in unnecessary 

1 expenditures of time and resources. State ex rel. Fletcher v. 

District Court (1993), 260 Mont. 410, 414, 859 P.2d 992, 994; State 

ex rel. First Bank System v. District court (1989), 240 Mont. 77, 

84, 782 P.2d 1260, 1264. 

It is fundamentally unfair and prejudicial, not to mention a 

waste of the taxpayers' money and the limited time and resources of 

the court and counsel, to force a defendant in a criminal case to 

stand trial when the court does not have jurisdiction to hear the 

case. 

Having concluded that, once it dismissed the information 

against the defendant with prejudice, the District Court here was 

without jurisdiction to reinstate the information. We therefore, 

also conclude, that it is appropriate that we assume jurisdiction 

of this case and exercise original jurisdiction under a writ of 

supervisory control in order to forestall a needless and expensive 

trial. 

111. 

Citing State v. Porter (l964), 143 Mont. 528, 391 P.2d 704, 

and other prior and more recent cases in accord, Torres argues that 
the District Court lost jurisdiction to reinstate the information 

in this case because of the doctrine that once a valid sentence has 

been pronounced, the court loses jurisdiction to vacate or modify 

the sentence, except as otherwise provided by statute. Torres also 

argues that our decision in State v. Onstad (1988), 234 Mont. 487, 

764 P.2d 473, is dispositive. 

The State argues that Onstad was wrongly decided since it 

applied the case law on final judgments to "simple orders.I1 

Further, the State maintains that Onstad is no longer valid 

authority because the statutory language upon which our decision 

was based has been subsequently modified by the legislature. 

We believe that the rationale expressed in Onstad is still 

valid, and, accordingly, it is necessary that we address our 

decision in that case. 

In Onstad, an information was filed charging the defendant 

with various felonies. The defense filed a motion to dismiss foz 

lack of jurisdiction along with a supporting brief based on the 

defendant being a member of an Indian tribe. While counsel had 

informally agreed that the State would have additional time in 

which to file its brief, the court was not made aware of that fact, 

and, in due course, no answer brief being submitted, the district 

court dismissed the information and charges. Our opinion does not 

indicate whether the dismissal was with or without prejudice. 

Through oversight, the court's order was not served on counsel, 

but, subsequently, the county attorney learned of the order ani 

filed his memorandum addressing the jurisdictional issue and a 

motion to set aside the court's order of dismissal. The time for 

appealing the order of dismissal having expired, the court held is 
hearing, granted the State's motion and entered an order 

reinstating the information. The defendant was then tried, 

convicted and sentenced. Onstad, 764 P.2d at 474. 

On appeal, we addressed the jurisdiction of the district court 

to reinstate the information after having dismissed it. There 

being no responsive brief from the State on file as required by 

Rule I1 of the Uniform District Court Rules then in effect at the 

time the court entered its order of dismissal, we concluded that 

the district court properly dismissed the information on the 

grounds raised by the defendant, and we held that, upon filing the 

order dismissing the information, that order became final and was 

appealable. Onstad, 764 P.2d at 475, citing, State v. Enfinger 

(1986), 222 Mont. 438, 722 P.2d 2170; State v. Wirtala (1988), 231 

Mont. 264, 752 P.2d 177; and State v. Spencer (1916), 37 S.D. 219, 

157 N.W. 662. 

As pointed out by the State, we did not distinguish in Onstad, 

between an order of dismissal and a judgment, and we cited cases in 

which a judgment had been entered. Under 46-1-202 (11) , MCA, 

(1991) , and 46-1-202 (lo), MCA, (1993), a judgment is: 

... an adjudication by a court that the defendant is 

guilty or not guilty, and if the adjudication is that the 

defendant is guilty, it includes the sentence pronounced 

by the court. 

The order of dismissal in the instant case (and in Onstad) is 

not the same thing as a lljudgmentql as defined by our code of 

criminal procedure since the order did not adjudicate guilt. 

Accordingly, to equate a judgment in a criminal case with an order 

which does not adjudicate guilt, is not technically correct. For 

purposes of resolving the issue raised in this case, however, that 

distinction is more of academic interest than of substantive 
import. 

What is critical here is that the District Court dismissed 

the information against Torres "with prejudice." The technical 

distinction between such an order of dismissal and a judgment 

aside, we have held that: 

The term "with prejudice" as used in a judgment of 

dismissal has a well-recognized legal import. It is the 

converse of the term "without prejudice,It and a judgment 

or decree of dismissal with prejudice is as conclusive of 

the rights of the parties as if the suit had been 

prosecuted to a final adjudication adverse to the 

plaintiff. (Citation omitted.) 

The terms "with prejudice" and "without prejudice" have 

been recognized as having reference to, and being 

determinative of, the right to bring a future action. 

(Citation omitted.) 

Schuster v. Northern Co. (1953), 127 Mont. 39, 45, 257 P.2d 249, 

Accordingly, an order of dismissal "with prejudice" in a 

criminal case, while not technically a judgment as that term is 

defined in our code of criminal procedure, nevertheless, acts as F: 

final adjudication of the case and is as conclusive of the rights 

of the parties as is a final judgment. Hence, our statement in 

Onstad that "[ulpon the filing of the order dismissing the 

information the order became a final judgment and was appealable," 

remains, for all intents and purposes, a correct statement of the 

law. 

Moreover, in Onstad we concluded that 5 46-13-106, MCA, 

(1985), implied that the dismissed information is no longer 

effective against the defendant though the court may retain custody 

over the defendant pending the filing of a new information; that 

the statute did not provide for reinstatement of the dismissed 

information; and that, since a valid information did not exist 
under which the defendant could be tried, his subsequent trial, 

conviction and sentence under the reinstated information is 

invalid. Onstad, 762 P.2d at 475. t 

section 46-13-106, MCA, (l985), referred to in OnstnS. 

provided that: 

Effect of order of dismissal. If the court directs the 

action to be dismissed, the defendant must, if in 

custody, be discharged therefrom or, if admitted to bail, 

have his bail exonerated or money deposited instead of 

bail refunded to him. However, if the court grants a 

motion to dismiss based on a defect in the institution of 

the prosecution or in the indictment, information, or 

complaint or if it appears at any time before judgment 

that a mistake has been made in charging the proper 

offense, the court may also order that the defendant be 

held in custody or that his bail be continued for a 

specified time pending the filing of a new complaint, 

indictment, or information. 

That section has since been amended, is now renumbered 5 46- 

13-402, MCA, in both the 1991 and 1993 codes and provides that: 

Effect of order to dismiss. If the court directs the 

action to be dismissed, the defendant must, if in 

custody, be discharged and, if admitted to bail, have 

bail exonerated or money deposited instead of bail 

refunded to the defendant. 

Importantly, the first sentences of each statute are virtually 

identical, and we conclude that, based upon that language, our 

reasoning in Onstad remains correct. The dismissed information is 

no longer effective against the defendant, and the statute does not 

provide for reinstatement of the dismissed information. Onstad,. 

Furthermore, as we pointed out in Onstad, while a district 

court may correct clerical errors to make the record speak the 

truth of what was actually decided, the court may not change what 

was originally intended. Citing State v. Owens (1988), 230 Mont. 

135, 138, 748 P. 2d 473, 474. "The reinstatement of the information 
was a reversal of the court's decision on the motion to dismiss and 

is not permissible." Onstad, 764 P.2d at 475. The same is true in 

the instant case. 

Under 46-2O-l03(2) (a), MCA, the State can appeal the 

dismissal of a case. Here, on the District Court's dismissal of 

the information with prejudice on motion of the defendant, the 

appropriate remedy for the State was to appeal, not to request 

reconsideration of the court's order. Onstad, 764 P.2d at 475. 

We hold that, having dismissed the information against Torres 

"with prejudice," the District Court was without jurisdiction to 

rescind its order of dismissal and to reinstate the information. 

Accordingly, we remand this case to the District Court for entry of 

an order vacating its September 21, 1993, order and for entry of an 

order reinstating its September 10, 1993, order dismissing with 

prejudice the information filed against Torres. 

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT H THIS OPINION. 
July 6, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Stephen E. Hagerman & Marvin Anderson 

Attorneys at Law 

600 Central Plaza, Suite 316 

Great Falls. MT 59401 

Michael Fanning 

Deputy County Attorney 

Cascade County Courthouse 

Great Falls, MT 59401 

Hon. Joseph P. Mazurek 

Attorney General 

Justice Building 

Helena. MT 59620 

Hon. John M. McCarvel 

Cascade County Courthouse 

Great Falls, MT 59401 

ED SMITH 

CLERKOFTHE 

SUPREME COURT 

STATE OF 

MONTANA