STATE v SCHWICTENBERG
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No. 88-563 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, P l a i n t . i ff and Appel-lant , -17s- JOEL SCHWICTENRERG, Defendant and Respondent. APPEAL FRON: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable James El. Whee!i.s, Judae presiding. COUNSEL OF RECORD: For Appellant: Pon. Marc R-acicot, Attorney General, Helena, Montana Clay Smith, Asst. Atty. General, Helena Robert L. Deschamps, 1x1, County Attorney; Craig Friedenauer, Deputy County Atty., Missoul.a, Manta-na For Respondent: Ronald MacDonald; Datsopoulos, Macnonald and Zind, Nissoula, Montana Submitted on Briefs: Decided: Y w , Filed: I ? 6 . i3) ~lr- > O ' 0 4 f - ? ; I.' I, , *.I - - \ ,.-- I ,. .-. f"' 1 > '! _. _ - I L. i. ; -- , ,) ! - ,- -.J .:: -- , s:, C, >: . d : 1 ' i) . . . .A - : \ .i . - 1 \- .., C3 .F - - March 23, 1989 April 2 7 1 1989 Mr. Justice Fred J. Weber delivered the Opinion of the C o n r t . The State of Montana appeals the dismissal of a criminal proceeding against. the defendant, Joel Schwictenburg, in the District Court for the Fourth Judicial District, Missou1.a County. We reverse. The defendant was charged in justice court with fai.lure to stop at the scene of an accident, in violation of 5 61-7-104, MCA, and driving under the infl.uence of drugs or alcohol in violation of 61-8-401, MCA. At trial, the defendant was found guilty of failing to stop at the scene of an accident, but not guilty of driving under the influence of drugs or alcohol. The defendant then appealed his conviction to the District Court. At a combined arraignment and omnibus hearing, the defendant pled not guilty and was released on his own recognizance. TJater, he agreed to plead guil-ty to a violation of at the scene of an acci-, 61-7-104, MCA, or failure to s t ~ p dent, in exchange for certain recommendations by the prosecution. A plea bargain agreement was entered into between the defendant, his counsel, and the Deputy County Attorney Craig Friedenauer. At the change of plea hearing, Mr. Friedenauer and a legal intern, Robert Long, appeared on behalf of the State. It was at that hearing that the District Court judge dismissed the proceeding against the defendant after the following exchanges: THE COURT: Stat-eversus 7 n e l Schwictenhurg You are Mr. Schwictenherq3 MR. SCHkIICTENRERG: Correct. MR. F R I E D E N A U P : This is Robert Long, ar intern in our office. THE C0UF.T: go g e t a j a c k e t . The c a l e n d a r s a y s you a r e g o i n g t o change your p l e a n o w ; i s t h a t Long, true? NR. SCHWICTENRERG: THE COURT: MR. SCHWICTENRERG: THE COURT:. Correct. Is t h i s leaving the accident? the scene of to plead to Yes. How do you wj-sh that? KR. SCHWICTENBERG: Guilty. THE COURT: I s t h i s i n accordance w i t h a l n thi.s c a s e ? plea b a r g a i n MR. Yes. SCHWICTENBERG: TI-IE C0IJF.T : What's t h e p l e a bargain? Has anything pressured you into entering a plea, other than t h e plea bargain? MR. J u s t s t r i c t l y t h e plea bargain. SCHWICTENRERG: THE C0UR.T: I n exchange f o r t h i s , you a r e going t o e n t e r a p l e a , c o r r e c t ? MR. Correct. SCH\A~ICTENRERG : any o t h e r p r o m i s e s t h r e a t s h e e n m a d e t o YOU? THE C0TJF.T: Have MR. or No. SCHWICTENBERG: THE COURT: I s it t r u e t h a t on o r about t h e 1 5 t h of A p r i l , 1 9 8 8 , you were driving a Dodge a minute. I 'm pickup--wait trying t o find somewhere where i t te1l.s w h a t you w e r e charged w i t h i n practical t e r m s . D o you w a n t a copy of t h e Complaint? THE COURT: There is a Complaint in here that charges him with DUI. This is nuts. The case is dismissed. The Minutes and Note of Ruling for that date further stat.e: Deputy County Attorney Craig Friedenauer and the Defendant with his counsel, Rebecca Summervi1!.e, came into Court. Defendant's motion to change his plea was heard and granted. Thereupon by permissi-on of the Court and consent of the County Attorney the Cefendant withdrew his plea of "Not Guilty" and entered his plea of "Guilty as charged in the Complaint." The Court was advised that a Plea Bargain Agreement had been entered into and is on file herei-n. Upon questioning, the Court was unable to find the appropriate documents in the Court f L l e and therefore dismissed the case with prejudice. Following the State's appeal of the dismissal, the judge issued an order stating that he had instructed the student intern to remove himself from the courtroom until he was appropriately attired and that he had spent considerable time searching through the court file for the appropriate charge but failed to lccate it. reasons for the dismissal: The judge offered the following 1. The Nissoula County Attorney's Office is responsible for insuring compliance with the Student Practice Rule particularly when students are appearing in District Court proceedings in criminal cases. The Court expects that this supervision will be real and not perfunctory. 2. The appearance of the student, in clear violation of the District Court Rules, indicates to this Court the supervisi-ng responsibility is not being held to sufficient standards. 3. The Court not being able to proceed in an orderly fashion with the acceptance of a plea as a result of the violation of the District Court Rules by the County Attorney's Office wec disruptive and delayed the Court's proceeclings. No supervisorl~ attorney presente6. hinself to the Court with any familiarity which would have allowed proceeding excepting an offer to get the Court a copy of the Complaint. 4. The Court Fj-nds that in order to communicate to the County Attorney's Office that this Court is dissatisfiei? with the degree of preparation and compliance with the Student Practice Rule providing responsible supervisory participation that it is necessary to dismiss the misdemeanor Complaint. The issue now before this Court is whether the District Court abused its discretion by dismissinq the proceeding, aqainst the defensant with prejudice. Section 46-13-201(1), MCA, provides that: The court may, either on its own motion or upon the application of the attorney prose cut in^ and in furtherance of justice, order a complaint, information, or indictment to he dismissed; however, the court may not order a dismissal of a complaint, informaticn, or indictment, or a count contained therein, charging a felony, unless good cause for fiismissal is shown and the reasons for the dismissal are set f0rt.h in an order entered upon the minutes. The clismissed charge in this case was a misdemeanor, which could arguably be said not to be subject to the "goo6 cause for dismissal" required for felonies under the statute. As the State points out, that clause addressing felony charqes was added to 46-13-201(1), MCA, in 1985. Prior to that time, no distinction was made between misdemeanor and felony charges and either could be dismissed at the court's discretion if in furtherance of justice. "In furtherance of iustice" remains the standard under the first phrase cS 9 46-13-203.(I), MCA, which we hold to be applicable in this case. That standard has been interpreted in pre-1385 case law as meanjnq t h a t the authority of the court to d.ismiss a proceeding is not unbridled, and must he exercised in view of the const?-tutionalrights of the defendant and the interests of s0ciet.y. State v. Roll (19&3), 206 Mont. 259, 261-62, 670 P.2d 566, 568. See also State v. Cole (1977), 174 Mont. 380, 571 P.2d 8 7 . Prior to addressing whether the court's dismissal Wac "in furtherance of justice," the defendant raises several procedural points which he contends render the State's appeal Ineffective. First, defendant contends that at the time of the appeal, no final order or iudqment existed as a basis for that appeal since the District Court did not issue its order until after the filing of the State" appeal. The District Court's written order of November 7 did not alter the substantive effect of its September 30 oral dis-missal at the change-of-plea hearing. The criminal proceeding against Mr. Schwictenburg was effectively dismissed upon the court's oral declaration of September 30, which was further reinforced by the entry contained in the minutes for that date. Section 46-20-103 (2) (a), MCA, authorizes the State to appeal in a criminal proceeding "from any court order or judgment the substantive effect of which results in dismissing a case." (Emphasis supplied.) This section ... does not require that the order be in writing. Section 46-13-201(1), MCA, directs only that the reasons for felony dismissals be set forth in an order entered upon the minutes. We recognize the purpose behind the requirement that reasons for clismissal be set forth, which is to provide this Court wlth a basis to review whether the trial judge exercised his discretion to dismiss within the "in furtherance of justice" standard. State v. Cole, 5 7 1 P.2d at 87. In this case, however, ample basis appears from the District Court's oral dismissal of September 30, which is accompanied by the tran-script o f the proceeding and the Minutes and Note of Ruling, to serve as a basis for review. We hold that the State could properly appeal from the court's order of September 30 dismissing the case against Mr. Schwictenburg, and that the accompanying minutes provide an adequate basis for our review of the matter. Turning now to the substantive issue of this case, the State argues that the District Court abused its discretion in dismissing the proceeding against the defendant even if the order of November 7 is considered. The defendant argues that the District Court was justified in its action because of the court's frustration in not heing able to locate a particular document which wa-s admittedly in the court File, the appear-ance of the student intern in violation of the District Court Rules, the failure of the deputy county attorney Craig Friedenaur to identify himself as the supervising attorney, and P r Friedenaur's failure to present himself to the court l. as being familiar with the case. The latter two contentions are not supported by the record, which reflects that Mr. Friedenaur was involved in the case From Its inception and that the District Court acknowledged his participation. The first sentence of the minutes from the hearing states that, "Deputy County Attorney Craig Friedenauer and the Defendant with his counsel, Rebecca Summerville, came into Court." Mr. Friedenauer's name appears on the plea agreement and it is signed by him. Furthermore, it was Mr. Friedenauer who introduced the legal intern to the court at the change of plea hearing. We conclude that these justifications do not find support in the record. and do not form a basis for the Cistrict Court's dism4 ssal. The defendant argues that it was within the court's discretion tc dismiss because of its frustration in not being a b l ~to locate a document together with the failure cf a student intern to azhere to the rules of decorum. We recognize the broad discretion allowed to the District Court in enforcing its own rules, that discretion must be balanced Roll, with the interests of society as outlined in State v. ----670 P . 2 d at 5 6 0 . In balancing the absence of a court document and the failure in court 6ecorum against the interests of society in proceeding with a case in which a plea bargain had been arranged, we conclude that the balance comes out in favor of the interests of society. We hold that t-he dismiss-. a1 of this case was not "in furtherance of justice" and was an abuse of discretion. We hold that the dismissal is set aside with the result that the prosecution may proceed to of 5 61-7-104, WCA, trial on the charge of ~~iolation failure to stop at the scene of an accident. We Concur: or
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