State v. Barlow's, Inc.

• Decision Date: 03 December 1986
• Docket Number: No. 16016,16016
• Citation: 111 Idaho 958,729 P.2d 433
• Parties: STATE of Idaho, Plaintiff-Appellant, v. BARLOW'S, INC., Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 433

729 P.2d 433

111 Idaho 958

STATE of Idaho, Plaintiff-Appellant, v. BARLOW'S, INC., Defendant-Respondent.

No. 16016.

Court of Appeals of Idaho.

Dec. 3, 1986.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-appellant.

Ronald J. Jarman, Pocatello, for defendant-respondent.

WALTERS, Chief Judge.

This is an appeal by the state from an order of the district court which reversed a judgment of conviction entered in the magistrate division against Barlow's, Inc., an electrical contractor. Barlow's was cited for violation of a Pocatello ordinance adopting the National Electrical Code. A jury found Barlow's guilty of two misdemeanor offenses, namely, installing electrical improvements not conforming to code standards and making an electrical installation without obtaining a permit from the city. On appeal by Barlow's to the district court, the convictions were reversed. The district court held that prosecution was barred by a previous dismissal of similar charges.

The state raises two issues on appeal from the district court's dismissal order: (1) Does I.C. § 19-3506 ¹ bar prosecution for a continuing violation of a misdemeanor law where the prosecutor has twice voluntarily dismissed prior charges of violating the same law? (2) If not, does the constitutional guarantee of procedural due process bar such prosecution? We conclude that the prosecution was not constitutionally barred. However, we interpret the city's ordinance as providing for only a single offense for failure to obtain a permit for a particular installation, while defining as a separate offense the continuing failure to correct a faulty installation. Therefore, we affirm the district court's ruling in part, and reverse the dismissal and affirm the convictions, in part.

Barlow's was cited on December 15, 1983, for installing non-code electrical improvements and failing to obtain a permit, on November 25, 1983. These charges were dismissed "in the interest of justice" on December 23, 1983, at the request of the city attorney. Five days later, Barlow's was again cited for the same offenses. Apparently realizing that these new charges were barred by I.C. § 19-3506, the city moved to dismiss the second set of charges. On January 19, 1984, citations were issued charging Barlow's with making an electrical installation on January 17, 1984, at the same address as alleged in the previous charges. Again the city alleged Barlow's had made an electrical installation without obtaining a permit and which did not comply with the city's electrical code. However, this time the city also cited Barlow's for "allowing the same to continue."

Barlow's moved to dismiss the January 19 charges, arguing that under I.C. § 19-3506 the prior dismissals acted as a bar. The magistrate denied the motion and a jury trial was held. Barlow's was convicted and was fined $300 on each of the charges. On appeal, the district court set aside the convictions and dismissed the third set of citations with prejudice. The district court found that the failure to obtain a permit is an offense requiring only one act. Thus upon dismissing charges relating to the original act, the district court reasoned, prosecution for failure to obtain a permit on subsequent occasions would be barred. The district court held that the city had failed to obtain convictions on the initial violation and was thus barred by constitutional due process guarantees and by I.C. § 19-3506 from further prosecution. We do not agree.

The appeal from denial of its dismissal motion was taken by Barlow's to the district court on a matter of law. The state has similarly appealed to this Court. Therefore, the record of proceedings at trial has not been provided to us. On appeal from a ruling on a matter of law we exercise free review.

The ordinance under which Barlow's was charged provides:

It is unlawful for any person, firm or corporation engaged in electrical work to install any electric wiring, fixtures, appliances or apparatus in or on any building, unless and until a permit for such work has been secured from the city building department as provided in this chapter.

Further, all installations are to conform to the National Electrical Code as adopted by the city. The ordinance's violations and penalties section provides:

It is unlawful for any person, firm or corporation to install or revise any electrical wiring, fixtures, appliance or apparatus in or on any building or structure in the city, or cause the same to be done, contrary to or in violation of any of the provisions of this chapter. Any person, firm or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and each such person shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of any of the provisions of this chapter is committed, continued or permitted. [Emphasis added.]

Following an order of dismissal, I.C. § 19-3506 bars any subsequent misdemeanor prosecution for the same offense. State v. Barter, 80 Idaho 552, 335 P.2d 887 (1959). Unlike the constitutional double jeopardy clauses, this statute does not require that the defendant actually be placed in jeopardy before the immunity attaches. See generally 21 AM.JUR.2d, Criminal Law § 258-262 (1981). A bare charge and dismissal is sufficient to act as a bar. Section 19-3506 applies to voluntary dismissals on the prosecutor's motion as well as dismissals on motion by the defendant. State v. McKeehan, 49 Idaho 531, 289 P. 993 (1930). In order for a dismissal to act as a bar, it must be valid and final. State v. Swartz, 109 Idaho 1033, 712 P.2d 734 (Ct.App.1985). Whether I.C. § 19-3506 is applicable depends upon a finding by the court that a subsequent charge is for the "same offense" as the previously dismissed charge. Although immunity attaches more readily than does double jeopardy protection, comparable tests of "offense identity" are applicable. Like the double jeopardy clauses, I.C. § 19-3506 is intended to protect individuals against repeated charges and trials for the same offense. Cf. State v. Sharp, 104 Idaho 691, 662 P.2d 1135 (1983) (on double jeopardy purpose).

The analysis of whether a subsequent charge involves the "same offense" as a previously dismissed charge generally applies a "same evidence" or a "same transaction" test. See generally C. WHITEHEAD, CRIMINAL PROCEDURE: AN ANALYSIS OF CONSTITUTIONAL CASES AND CONCEPTS § 24.04 (1980). The first approach focuses on whether the same evidence is required to support a conviction for each offense charged. The "same transaction" test focuses upon the behavior of the defendant that led to the prosecution. However, Idaho's double jeopardy statute, I.C. § 18-301, enlarges the scope of double jeopardy in that it prohibits double punishment for the same act or omission and is not limited to the same offense. State v. Werneth, 101 Idaho 241, 611 P.2d 1026 (1980). Thus few Idaho cases have focused on the "same offense" phrase of the statute at issue. Therefore, we look to other jurisdictions for guidance in interpreting this phrase.

A continuing offense is a continuous, unlawful act or series of acts set in motion by a single impulse and operated by unintermittent force. United States v. Midstate Horticultural Co., Pa., 306 U.S. 161, 59 S.Ct. 412, 83 L.Ed. 563 (1939); State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982); State v. Johnson, 212 N.C. 566, 194 S.E. 319 (1937). Barlow's argues that both failure to obtain a permit and a non-code installation are either single-event offenses or continuing offenses subject to only one prosecution. We concur with respect to failure to obtain a permit, but are not persuaded with respect to failure to correct the faulty installation.

Barlow's alleges that the evidence presented at trial showed that its only offenses on January 19 were continued failure to obtain a permit or to remove the improvement and that, in fact, an installation only on the formerly charged date was proven. Although the trial record is not before us, state's counsel at oral argument also suggested that only omissions on January 19 were properly being charged in the third set of citations and that the alleged act of installation occurred on an earlier date. Assuming that no new act of electrical installation occurred on the latter date, we find a significant distinction between the omissions charged.

Our reading of the city's ordinance suggests that failure to obtain a permit is a single-event offense. The ordinance provides that "to install" electric improvements "unless and until a permit for such work has been secured" is a misdemeanor. Failure to secure a permit following complete installation is not addressed. Because failure to obtain a permit is a single-event offense, and because this charge previously had been dismissed, the city was barred by I.C. § 19-3506 from renewing the charge with respect to the same installation. ² Therefore, we affirm the district court's ruling with respect to this offense.

However, we find the offense of failing to correct or remove a non-code installation to be a continuing offense. The city's ordinance requires that:

All installations in the city, of wires and equipment to convey electric current and installations of apparatus to be operated by such current, except as provided in this chapter, shall be in conformity with the National Electrical Code....

We interpret this section as requiring that the improvement conform to the Code standards. So long as the nonconforming improvement remains in place, a continuing offense is in progress.

Ordinarily a continuing offense would constitute a single offense for purposes of our statute. A prosecution for a continuing offense is a bar to subsequent prosecution for the same offense charged to have been committed at any time prior to the initiation of the first prosecution....