IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 96-071 

MICHAEL SCOTT STILSON, 

Petitioner, OPINION 

AND 

v. ORDER 

STATE OF MONTANA, 

Respondent. 

Petitioner Michael Scott Stilson has filed a petition for 

post-conviction relief alleging that convictions he received in the 

Fourth and Eighth Judicial District Courts violated his rights to 

not be twice put in jeopardy guaranteed by the Fourteenth and Fifth 

Amendments to the United States Constitution, and Article II, 

Section 25, of the Montana Constitution. 

On March 26, 1991, the State filed an Information in the First 

Judicial District Court charging Stilson with the crime of issuing 

a bad check, a felony, common scheme, for numerous bad checks 

written in Lewis and Clark County. On the same day Stilson pled 

guilty to the charge, and on March 27, 1991, the District Court 

sentenced Stilson to a three-year deferred imposition of sentence. 

On January 29, 1991, the State filed an Information in the 

Fourth Judicial District Court charging Stilson with issuing more 

than three bad checks in Missoula County, a felony, common scheme. 

On April 1, 1991, Stilson pled guilty to the charge, and on May 20, 

1991, the District Court sentenced Stilson to a suspended sentence 

of six years confinement to run consecutive to the sentence imposed 

by the First Judicial District Court. 
On May 28, 1991, the State filed an Information in the Eighth 

Judicial District Court charging Stilson with issuing a bad check, 

a felony, common scheme. While the Cascade County Information 

specifically referenced only a single bad check written in Cascade 

county, it listed as witnesses individuals from six separate Great 

Falls businesses. On June 14, 1991, Stilson pled guilty to the 

charge and on the same day the District Court sentenced him to ten 

years confinement to run consecutive to the sentences imposed in 

the First and Fourth Judicial District Courts. Execution of the 

sentence was suspended. The judgment indicated that Stilson wrote 

20-25 checks in the Great Falls area and that the total checks 

written in Cascade County totaled $2,961. 

Stilson also wrote bad checks in Yellowstone and Butte-Silver 

Bow Counties. Stilson was not prosecuted in either of those 

counties but the judgment entered by the Fourth Judicial District 

Court ordered Stilson to pay restitution for those bad checks. 

On February 15, 1996, Stilson filed this petition for 

post-conviction relief alleging his convictions in the First, 

Fourth, and Eighth Judicial District Courts were for the same 

common scheme and, therefore, that the Fourth and Eighth Judicial 

District Court convictions violated his double jeopardy rights. 

The State argues that Stilson's double jeopardy claims are 

waived because he failed to raise them prior to entering his guilty 

pleas. Stilson argues that he did not waive his double jeopardy 

claims when he pled guilty because his claims are jurisdictional. 

It is well established that a plea of guilty which is 

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voluntary and understandingly made constitutes a waiver of 

nonjurisdictional defects and defenses, including claims of 

constitutional violations which occurred prior to the plea. Hagan 

v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citing 

State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788). 

In Haqan we held that the jurisdictional grounds exception applies 

to "those cases in which the district court could determine that 

the government lacked the power to bring the indictment atthetimeof 

accepting the guilty plea from the face of the indictment or from the record. ‘( Hasan, 873 

P.2d at 1388 (quoting United States v. Cortez (9th Cir. 1992), 973 

F.2d 764, 767). 

When Stilson pled guilty and was sentenced in Cascade County 

the District Court had before it a copy of the pre-sentence 

investigation report prepared with regard to Stilson's previous 

sentencing in Missoula County. The report also referenced 

Stilson's conviction in Lewis and Clark County. 

Thus, we conclude that at the time the Eighth Judicial 

District Court accepted Stilson's guilty plea the record before it 

contained his two prior convictions and was sufficient for the 

court to determine whether the government lacked the power to bring 

the charges at issue due to the constitutional prohibitions against 

placing a person twice in jeopardy. We conclude that Stilson has 

not waived his double jeopardy claim and therefore proceed to 

address the merits of his claim. 

Stilson claims that he engaged in one common scheme to write 

bad checks in five different counties and the only thing that 

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separates his crime into parts is geography. He argues that 

1' common scheme" is an element of the crimes charged and that 

nothing in the charges evidences a different continuing criminal 

design. Stilson maintains that since he was convicted and punished 

for the common scheme in Lewis and Clark County, he cannot be 

prosecuted or punished again. 

The State argues that double jeopardy protections prohibit 

multiple punishments for the same offense, and that in this case 

the Legislature intended "issuing a bad check" to be the offense, 

not "common scheme." The State asserts that "common scheme" is not 

an element of the offense but rather a sentence enhancement 

provision which determines if the offense is a misdemeanor or 

felony. The State maintains that the offense in each county did 

not require proof of acts committed in the other counties and 

therefore they were separate and distinct offenses. According to 

the State, convicting a defendant of one common scheme does not 

foreclose convictions of additional common schemes in different 

counties. 

In State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299, we 

stated that in examining questions of double jeopardy, this Court 

has consistently applied the test set forth in Blockburger v. 

United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306. 

Crowder, 810 P.2d at 304. We noted that Blockburser dealt with two 

different double jeopardy issues--one was whether the defendant 

could be convicted of violating two different statutory provisions 

arising from a single sale of dangerous drugs, and the second was 

4 
whether the defendant could be convicted of two counts of selling 

a dangerous drug under a single provision of the Narcotics Act. 

Crowder, 810 P.2d at 304-05. 

When two distinct statutory provisions are involved, the test 

to determine whether there are two offenses or only one is whether 

each provision requires proof of a fact which the other does not. 

Crowder, 810 P.2d at 304 (citing Blockburser, 284 U.S. at 304). 

The U.S. Supreme Court explained this "elements test" by stating 

that: 

A single act may be an offense against two statutes; and 

if each statute requires proof of an additional fact 

which the other does not, an acquittal or conviction 

under either statute does not exempt the defendant from 

prosecution and punishment under the other. 

Blockburser, 284 U.S. at 304. 

This Court has employed the "elements test" to determine 

whether a defendant can be charged and convicted of violating two 

statutes for the same act or transaction. See State v. Wolfe 

(1991), 250 Mont. 400, 821 P.2d 339 (holding that a defendant can 

be convicted of both possession of explosives and criminal 

mischief); State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267 

(holding that a defendant can be convicted of both sexual 

intercourse without consent and aggravated kidnapping); State v. 

Long (19861, 223 Mont. 502, 726 P.2d 1364 (holding that a defendant 

can be convicted of both misdemeanor assault and sexual assault). 

In Crowder, however, we dealt with a situation similar to the 

second Blockburser issue. Crowder was charged with two violations 

of the same statutory provision (possession of dangerous drugs) and 

5 
we were faced with the question of whether Crowder's possession of 

drugs on his person and possession of drugs on his property 

constituted two separate acts of possession. Crowder asserted that 

principles of fundamental fairness required that he be charged only 

once for conduct which amounted to the same transaction. Crowder, 

810 P.2d at 304. 

We again looked to the Blockburqer Court which addressed the 

issue as follows: 

Each of several successive sales constitutes a distinct 

offense, however, closely they may follow each other. 

iik; 

[Wlhen the impulse is single, but one indictment 

no matter how long the action may continue. If 

successive impulses are separately given, even though all 

unite in swelling a common stream of action, separate 

indictments lie. 

Blockburqer, 284 U.S. at 302 (citation omitted). In affirming the 

convictions, the U.S. Supreme Court examined the legislative intent 

behind the Narcotics Act and concluded that the statute did not 

punish engaging in the business of selling dangerous drugs, but 

rather penalized any sale. Blockburser, 284 U.S. at 302. 

We adopted a similar analysis in Crowder and articulated a 

second test when only one statutory provision is involved. To 

determine the "allowable unit of prosecution" courts look to 

legislative intent since discretion is with the legislature to 

impose punishments, subject only to constitutional limitations. 

Crowder, 810 P.2d at 305 (citing Bell v. United States (1955), 349 

U.S. 81, 82, 75 S. Ct. 620, 622, 99 L. Ed. 905, 910). In Crowder 

we held that the Legislature intended to punish each separate 

possession of dangerous drugs and concluded that the district court 

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did not err in failing to join the separate counts of possession on 

the person and possession on the premises. Crowder 810 P.Zd at 

305-06. 

The facts of the present case align themselves with Crowder in 

that Stilson was charged under the same statute, 5 45-6-316, MCA 

(1989) I and was convicted in all three different counties of 

issuing a bad check, a felony, common scheme. Thus, the question 

is whether the Legislature intended that a defendant could be 

punished for more than one common scheme. 

We acknowledge the fact that in State v. Fleming (1987), 225 

Mont. 48, 730 P.2d 1178, we stated that "[clommon scheme is clearly 

an element to be charged and proven under § 45-6-316, MCA, as it is 

specifically mentioned in subsection (3) of the statute." Fleminq, 

730 P.2d at 1180. Therefore, we do not agree with the State's 

contention that "common scheme" is merely a sentence enhancement 

provision which determines if the crime is a misdemeanor or felony. 

Nevertheless, the focus of our analysis still remains whether or 

not a defendant may be charged with more than one common scheme. 

Stilson's reliance on Fleminq and State v. McHugh (1985), 215 

Mont. 296, 697 P.2d 466, is misplaced. In both of those cases the 

defendants were charged in only one county with one count of 

issuing bad checks as part of a common scheme and the defendants 

disputed that their conduct constituted a common scheme. We held 

that the acts of issuing multiple bad checks are a common scheme if 

the acts were "either individually incomplete such that they show 

that a single crime had been committed, or [were] acts which 

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closely followLed one another evidencing a continuing criminal 

design." Fleminq, 730 P.2d at 1180. Even though we upheld the 

convictions and concluded that the defendants' conduct constituted 

a common scheme, we did not address nor foreclose the possibility 

that a defendant could, under the appropriate facts and 

circumstances, be convicted of more than one common scheme. 

Stilson argues that the Legislature did not intend to allow 

the State to divide one common scheme into multiple common schemes 

and multiple felony violations. According to Stilson, the 

Legislature did not provide in 5 45-6-316, MCA, or anywhere else in 

the Code, a basis to divide a single common scheme of issuing bad 

checks into multiple common schemes. 

While we agree with Stilson that the Code does not provide for 

multiple common schemes, we conclude that neither has the 

legislature foreclosed such a possibility. Under the appropriate 

facts and circumstances, we conclude that double jeopardy 

protections do not necessarily prevent a defendant who has been 

convicted of a common scheme in one county from being convicted of 

another common scheme in a different county. 

In this case Stilson was charged in each county for only those 

checks written in that particular county and the bad checks written 

in each county were separate and distinct "common scheme" offenses. 

Stilson wrote bad checks to a number of different vendors in each 

county and, when taken together, such a series of acts provides the 

basis for the charge of felony common scheme in each county. The 

evidence required for the State to prove the offense in each county 
was different and specific to each county and the series of acts or 

transactions in each county were different from those in the other 

jurisdictions, both individually and as a group. 

Thus, under the specific facts and circumstances of this case, 

Stilson committed the crime of writing a bad check, a felony, 

common scheme, in each of the jurisdictions for which he was 

charged and we hold that the convictions he received in the Fourth 

and Eighth Judicial District Courts did not violate his double 

jeopardy rights. Therefore, 

IT IS HEREBY ORDERED that Stilson's petition for postconviction relief is DENIED. 

The Clerk is directed to mail a copy of this opinion and order 

to all counsel of record and to the Clerks of Court for the First, 

Fourth, ant 1 Eiqhth _ Judicial District Courts 

DATED this 

Justices 

9 
Justice W. William Leaphart, dissenting 

I would grant the Petition for Post-Conviction relief on 

double jeopardy grounds with regard to the conviction of Issuing a 

Bad Check, a Felony in the Eighth Judicial District Court, Cause 

No. ADC-91-56. Under State v. Hagan (1994), 265 Mont. 31, 873 P.2d 

1385, this Court held that jurisdictional claims are narrowly 

limited to "those cases in which the district court could determine 

that the government lacked the power to bring the indictment at the 

time of accepting the guilty plea from the face of the indictment 

or from the record." Haqan, 265 Mont. at 36 (citing United States 

V. Brace (1989), 488 U.S. 563. The State does not contest 

Petitioner's assertion that the Eighth Judicial District Court 

accepted Mr. Stilson's guilty plea on the same day that it 

sentenced him. On that same day, the Eighth Judicial District 

Court had before it the Pre-Sentence Investigation Report (PSI) 

prepared with regard to Stilson's previous conviction in Missoula 

County for the same check writing scheme. The Missoula County PSI 

in turn references the fact that Stilson was convicted in Lewis & 

Clark County with regard to the same check writing scheme. Thus, 

it is clear to me that when the Eighth Judicial District Court 

accepted Stilson's plea of guilty on June 14, 1991, the "record" of 

the two prior convictions was both available and sufficient for the 

court to determine that, due to the constitutional prohibitions 

against placing a person twice in jeopardy, the government lacked 

the power to bring the charges at issue. 

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As to whether defendant's state-wide check writing conduct can 

be broken into separate "common schemestt in which each county 

charges a common scheme limited to the checks written in that 

particular county, I note that the Cascade County Information CDC 

91-096, charges defendant with Issuing a Bad Check, a Felony, a 

common scheme. The Information then makes reference to one check 

which was issued in Cascade County. It is axiomatic that more than 

one check is necessary in order to constitute a "common scheme." 

One cannot tell from the face of the Information whether the other 

checks necessary to constitute the "common scheme" were written in 

Cascade County or were the same checks which were the basis for the 

charges in Lewis & Clark and Missoula Counties. The Cascade County 

Judgment does, however, reference the fact that the defendant was 

convicted for writing bad checks in Missoula and Helena. 

Accordingly, I cannot conclude that the Cascade County charge 

of "common scheme" was based solely upon checks issued in Cascade 

County and that it did not encompass checks from other counties 

wherein the defendant had already been put in jeopardy. 

Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., 

join in the foregoing dissent of Justice W. William Leaphart. 

Justices 

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CERTIFICATE OF SERVICE 

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

following named: 

Jeffrey T. Rena, Director 

Jonath: m Kudrna, Legal Intern 

Montana Defender Project 

University of Montana School of Law 

Missoula, MT 59812 

Hon. J oseph P. Mazurek, A.G. 

Cregg Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

Robert Deschamps, III 

Count) fAttorney 

Missot da County Courthouse 

Missoula, MT 59802 

Brant Light 

County Attorney 

121 4th Street North 

Great Falls, MT 59401 ’ 

Mike McGrath 

L & C County Attorney 

228 Broadway, Courthouse 

Helena, MT 59624 

Dennis Paxinos 

Yellowstone County Attorney 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 
Cl LERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Dep