City of Wahpeton v. Desjarlais

• Decision Date: 03 July 1990
• Docket Number: Cr. N
• Citation: 458 N.W.2d 330
• Parties: CITY OF WAHPETON, Plaintiff and Appellant, v. Cheryl Ann DESJARLAIS, Defendant and Appellee. o. 900013.
• Court: North Dakota Supreme Court

Page 330

458 N.W.2d 330

CITY OF WAHPETON, Plaintiff and Appellant, v. Cheryl Ann DESJARLAIS, Defendant and Appellee.

Cr. No. 900013.

Supreme Court of North Dakota.

July 3, 1990.

Lies, Bullis & Grosz Law Firm, Wahpeton, City Attys., for plaintiff and appellant; argued by Richard W. Grosz on behalf of John I. Allen.

David John Haberman (argued), Wahpeton, for defendant and appellee.

GIERKE, Justice.

The City of Wahpeton appeals from a county court judgment which found Cheryl Ann Desjarlais not guilty of driving under suspension. We reverse and remand.

On January 24, 1989, Desjarlais was arrested by an officer of the Wahpeton Police Department and charged, by uniform traffic complaint, with the offense of driving under suspension/revocation in violation of Section 5-1506 of the Wahpeton City Ordinance. ¹ Desjarlais pleaded not guilty to the charge and a trial date was scheduled. On March 13, 1989, prior to the scheduled trial date, the prosecuting attorney for Wahpeton issued a formal complaint charging Desjarlais with "Driving Under Suspension." The basis for the arrest was that Desjarlais, a Minnesota resident, did not have a valid Minnesota driver's license due to a February 3, 1988, driving under the influence conviction in Minnesota.

At trial, the city entered as an exhibit a certified copy of Desjarlais' Minnesota driver's license record. The record listed the status of her Minnesota driver's license as "Revoked", due to the previous DUI conviction. The municipal court judge found Desjarlais guilty of driving under suspension and sentenced her accordingly. Desjarlais subsequently appealed the city court decision to the county court for a new trial. However, prior to the scheduled trial date, the city and Desjarlais stipulated to the facts of the case thus avoiding a formal trial in the county court.

The county court held that the city failed in its burden to prove Desjarlais guilty beyond reasonable doubt of driving under suspension because Desjarlais' Minnesota license was revoked, rather than suspended. The court, quoting State v. Brude, 222 N.W.2d 296, 297 (N.D.1974), pointed out the definite distinction between "suspension" and "revocation" by stating: "The distinction between suspension and revocation under these sections [N.D.C.C. Secs. 39-06-23(2) and 39-06-23(3) ] is that a suspension is effective for a specified period, while a revocation continues until such time as a new application has been submitted and a license issued." The court stated that it:

"[A]ppears quite clear that the City is alleging that there was a suspension of the defendant's license. On the other hand, the proof submitted by the City does not show that the defendant's license was 'suspended'. It then appears that the City has failed to prove all the essential elements of the offense.... The complaint is clear and unambiguous in that it charges a crime that is separate and distinct from that of driving while a person's license is revoked."

Thus, the county court found that the city failed in its burden to find Desjarlais guilty beyond a reasonable doubt and therefore concluded that she was "not guilty" of the alleged offense. It is from this judgment that the city of Wahpeton appeals. ²

Desjarlais requests this court to dismiss the City's appeal on the ground that the trial court's judgment constitutes an acquittal and therefore cannot be appealed by the City. On the other hand, the City contends that the judgment of the trial court constitutes a dismissal of the complaint and is therefore appealable under Section 29-28-07(1), N.D.C.C. Thus, the City contends that the complaint charging Desjarlais with "driving under suspension" was sufficiently phrased so as to adequately apprise her of the offense of "driving under revocation."

In a criminal action, the City has only such right of appeal as is expressly conferred by statute. State v. Flohr, 259 N.W.2d 293, 295 (N.D.1977); Section 29-28-07(1), N.D.C.C. Section 29-28-07(1), N.D.C.C. provides that the State [City] can appeal "an order quashing an information or indictment or any count thereof." An order dismissing a criminal complaint has the same effect as an order quashing an information for the purposes of appealability, and can therefore be appealed by the City pursuant to Section 29-28-07(1), N.D.C.C.; Flohr, supra, 259 N.W.2d at 295. Thus, we must determine whether the trial court's ruling constituted an acquittal, which is not appealable or is an order which, regardless of its label, has the same effect as an order quashing an information.

Although the trial court phrased its findings in terms of "not guilty", the mere use of those words does not establish the action as an acquittal. State v. Melin, 428 N.W.2d 227, 229 (N.D.1988), cert. denied, 488 U.S. 942, 109 S.Ct. 367, 102 L.Ed.2d 357. As this court stated in Flohr, supra, 259 N.W.2d at 295:

"The question of what constitutes an 'acquittal' is not to be controlled by the form of a judge's ruling. United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Rather, one must look at the substance of the judge's ruling, whatever its label, and determine whether it actually represents a resolution of some or all of the factual elements of the offense charged. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)." [Emphasis added].

A review of the trial court's memorandum opinion clearly indicates that the trial court was not resolving "some or all the factual elements of the events charged." While the trial judge's opinion contained language indicating that the City "failed to prove all the essential elements of the offense", we believe that the court's decision was premised on an ill-worded complaint which charged Desjarlais with "driving under suspension" when in fact her Minnesota license was revoked. The following language from the trial court's opinion leads to our conclusion:

"It is a general rule that a complaint must set forth the facts so distinctly as to advise accused of the charge, and give him a fair opportunity to prepare his defense, so particularly that a conviction or acquital [sic] would bar another prosecution for the same offense, and so clearly that the Court may determine whether the facts stated support a conviction.

Preparing for a defense against a charge of driving while license was suspended, or while license was revoked, could well take entirely different rules of law and fact when given the situation of this case where the defendant was licensed in the State of Minnesota, was apparently convicted of a vehicular offense in Minnesota, had her license revoked in Minnesota for a stated period of time which had expired at the time of the alleged offense hearing, it appears possible she may have become a resident of the State of North Dakota, and as such should have acquired a North Dakota license, or was entitled to a North Dakota license."

Thus, we believe that the trial court's decision was based upon the legal conclusion that the complaint was worded so as to charge an offense [driving under suspension] that was inconsistent with the "revoked" status of Desjarlais' driver's license. It appears that the trial court was concerned with due process fair notice requirements rather than with resolving some or all of the factual elements of the case. Therefore, we conclude that the trial court judgment constitutes a dismissal of the complaint against Desjarlais thereby giving the City a right to an appeal.

As to the merits of the case, the City contends that the trial court dismissal was based on a complaint that was not technically worded correctly. In order to sufficiently charge an offense, a complaint must contain a plain, concise, and definite written statement of the essential elements of the offense. City of Minot v. Bjelland, 452 N.W.2d 348, 350 (N.D.1990); Rule 7(c), N.D.R.Crim.P. In considering the sufficiency of a criminal pleading, technicalities have been abolished, and it is only necessary to plead an offense in its usually designated name in plain, ordinary language. State v. Jelliff, 251 N.W.2d 1, 6 (N.D.1977); State v. Medearis, 165 N.W.2d 688, 693 (N.D.1969). When the facts, act and circumstances are set forth with sufficient certainty, it is not a fatal defect that the information or the complaint gives an erroneous name to the charge. Medearis, supra, 165 N.W.2d at 692-93. Mere defects, inaccuracies, or omissions in a complaint do not affect the subsequent proceedings, unless as a result, no offense is charged. Jelliff, supra, 251 N.W.2d at 5.

In this case, Desjarlais was charged with driving under suspension in violation of Wahpeton City Ordinance Section 5-1506 which is entitled "Penalty For Driving While License is Suspended or Revoked." Subsection 5-1506(1) provides in pertinent part that "[a]ny person who drives a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this city while that person's license or privilege so to do is suspended or revoked is guilty of a Class B misdemeanor." Further, subsection 5-1506(2) provides that "the sentence [for driving under suspension or revocation] must be at least four consecutive days' imprisonment and such fine as the court deems proper."

Thus, under Section 5-1506(2) of the Wahpeton City Ordinances, it seems clear that the penalty imposed is similar whether the charge is driving while license is suspended or driving while license is revoked. We are mindful that the primary purpose of a criminal complaint is to fairly inform the defendant of the charges against him or her. Bjelland, supra, 452 N.W.2d at 351. Considering that the complaint filed against Desjarlais notified her that she was driving in...