State v. Jelliff, 574
| Decision Date | 18 February 1977 |
| Docket Number | No. 574,574 |
| Citation | 251 N.W.2d 1 |
| Court | North Dakota Supreme Court |
| Parties | STATE of North Dakota, Plaintiff and Appellant, v. Thomas B. JELLIFF, Defendant and Appellee. Crim. |
Syllabus by the Court
1. An order dismissing a criminal complaint or dismissing an information in effect quashes an information for the purpose of determining appealability under § 29-28-07, NDCC.
2. If a criminal complaint otherwise fairly and factually apprises the defendant of the offense charged, but contains unnecessary or prejudicial allegations, irrelevant or immaterial facts, or other surplusage, the proper remedy is to amend or strike that surplusage rather than to suppress the evidence or dismiss the complaint.
3. Under the provisions of § 12.1-23-07, NDCC, each misapplication of entrusted property can be considered a separate offense.
Calvin N. Rolfson, Deputy Atty. Gen., Bismarck, for appellant.
Robert A. Alphson, Grand Forks, for appellee.
This is an appeal by the State from an order of the Grand Forks County Court With Increased Jurisdiction dismissing the criminal complaint charging the defendant, Thomas B. Jelliff, with the offense of misapplication of entrusted property in violation of § 12.1-23-07, NDCC. We reverse and order the complaint reinstated.
On September 9, 1975, the district judge of the First Judicial District made a written demand upon the attorney general of North Dakota, pursuant to § 54-12-04, NDCC, directing his office to "make a full and complete investigation" of alleged irregularities in the Grand Forks County State's Attorney's office.
The district judge's demand was based upon an affidavit of a former assistant state's attorney which alleged that Jelliff maintained a trust account in his name as state's attorney for the purpose of depositing moneys received by his office for restitution of insufficient fund checks, and that the trust account had become overdrawn on occasion because Jelliff had drawn checks upon this account for his own personal use.
After several months of investigation, a criminal complaint, supported by an affidavit of probable cause, was prepared and presented to the judge of the Grand Forks County Court With Increased Jurisdiction, who approved the complaint on December 29, 1975, based upon a finding of probable cause. The criminal complaint charged Jelliff with the offense of misapplication of entrusted property on or about the 28th day of July, 1975, in violation of § 12.1-23-07, NDCC. That section states:
"A person is guilty of a class A misdemeanor if he disposes of, uses, or transfers any interest in property which has been entrusted to him as a fiduciary, or in his capacity as a public servant or an officer, director, agent, employee of, or a person controlling a financial institution, in a manner that he knows is not authorized and that he knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted."
The supporting affidavit listed nine instances in which Jelliff had allegedly drawn money from the state's attorney's trust checking account for his personal use. Seven of the checks were allegedly drawn prior to the effective date of the statute under which Jelliff was charged, July 1, 1975. The relevant subsection which deals with the retroactivity of the criminal statute, § 12.1-01-01(2), NDCC, provides:
On June 21, 1976, Jelliff filed a motion to suppress all transactions of the defendant except those occurring after July 1, 1975. The hearing on that motion was set for July 29, 1976, but a day before the hearing Jelliff served upon the State an "amended motion to dismiss." Both motions were argued on July 29, 1976, and the court, on September 7, 1976, rendered an order entitled "Order Granting Motion of Defendant to Suppress Evidence and Order Granting Amended Motion of Defendant to Dismiss the Above Entitled Action and Dismissal of the Complaint." In its order the court stated that the complaint must be dismissed because "Section 12.1-23-07 is not applicable to any element of the offense committed prior to July 1, 1975, the effective date of Title 12.1 of the North Dakota Criminal Code as amended through the 1975 Legislative Assembly." It is from this order that the State appeals.
In its brief the State poses the following questions, slightly reordered, as the issues on appeal, each of which will be discussed below:
(1) May an order of the court dismissing a criminal complaint be appealed by the State?
(2) Should an otherwise sufficient criminal complaint be dismissed because a supporting affidavit contains, in addition to facts supporting the charge, surplusage or evidentiary material which may or may not be admissible at trial?
(3) Did any of the "elements" of the offense with which defendant is charged occur prior to the effective date of the law?
(4) If the lower court's order dismissing the complaint also effectively suppressed evidence, was it error to suppress evidence which was to be introduced for the limited purpose of showing motive, intent, identity, scheme or plan, or the absence of mistake or accident?
Section 29-28-07, NDCC, lists the orders from which the State may appeal, and provides in relevant part:
The defendant contends that the quoted statutory language allows an appeal only from an order quashing an information or indictment, not from an order dismissing a complaint. He cites State v. Bauer, 153 N.W.2d 895 (N.D.1967), in support of this contention, a case which held that an order dismissing a criminal complaint was not appealable because it was not expressly enumerated by § 29-28-07, NDCC.
While State v. Bauer, supra, was not expressly overruled by State v. Hart, 162 N.W.2d 499, 500 (N.D.1968), that latter decision held that an order granting a motion to quash a criminal complaint is appealable by the State. In so holding, this Court stated:
While this Court in State v. Hart, supra, found that there is no real distinction between a criminal information and a criminal complaint for purposes of determining appealability under § 29-28-07, NDCC, in the same manner, in State v. Howe, 247 N.W.2d 647 (N.D.1976), we held that an order dismissing an information under Rule 12, NDRCrimP, in effect quashes an information within the purview of appealable orders under § 29-28-07. In reaching this conclusion in State v. Howe, supra, we said, at 652:
In reaching the foregoing conclusion in State v. Howe, supra, we said that, while the right to appeal is purely statutory, statutes conferring the right to appeal must be liberally construed, and that in determining appealability it is not the label which controls but, rather, the effect. We think these cases and Rule 12 NDRCrimP which abolished motions to quash and replaced them with motions to dismiss, clearly permit the appealability of an order dismissing a criminal complaint under § 29-28-07(1), NDCC.
Rule 3, NDRCrimP, which governs the criminal complaint, provides as follows:
"(a) General.
The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate of this state who may examine on oath the complainant and other witnesses as well as receive any affidavit filed with the complaint. If the magistrate examines the complainant or other witnesses on oath, he must cause their statements to be reduced to writing and to be subscribed by the persons making them or to be recorded by a court reporter or recording equipment.
(b) Amendment.
The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or...
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