State v. Klose

Citation334 N.W.2d 647
Decision Date12 May 1983
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. David C. KLOSE, Defendant and Appellee. o. 908.
CourtUnited States State Supreme Court of North Dakota

James Twomey, Asst. State's Atty., Fargo, for plaintiff and appellant.

Richie & Sogard, Fargo, for defendant and appellee; argued by Michael Masuda, Fargo.

SAND, Justice.

The State appealed from an order dismissing a DUI charge against the defendant, David C. Klose.

Klose originally was charged with driving while under the influence of intoxicating liquor in violation of North Dakota Century Code Sec. 39-08-01. Klose appeared for arraignment in county court and pleaded not guilty to the charge and requested a jury trial. The county court set bail and a date for jury selection. After numerous continuances and delays, Klose's case was placed on the 22 June 1982 criminal jury calendar. Klose failed to appear for jury selection on 22 June 1982, and the court issued a bench warrant on 23 June 1982 for Klose's arrest.

On 6 July 1982 Klose voluntarily appeared with his attorney during daily arraignments in county court and orally moved to amend the complaint to reduce the charge from DUI to actual physical control of a motor vehicle while under the influence of intoxicating liquor. The record reflects that, although Klose did not give prior notice to the State, an assistant state's attorney was present for the daily arraignments in county court and stayed for the proceedings involving Klose. The county court granted Klose's motion to amend the complaint, and he pleaded guilty to the reduced charge. The county court accepted Klose's guilty plea and deferred imposition of sentence for two years and ordered Klose to pay court costs in the amount of $150.00.

On 15 July 1982 the State filed a motion to vacate the judgment and imposition of sentence issued by the county court on the grounds that the judgment and order were invalid. The county court granted the State's motion to vacate and set the case for trial on the original DUI charge.

On 30 August 1982 Klose again moved to amend the criminal complaint to reduce the charge from DUI to actual physical control and a hearing was held before the county judge. However, the county judge disqualified himself from the case and this court appointed the Honorable Bayard Lewis to hear Klose's case. On 15 October 1982 a hearing was held before Judge Lewis on Klose's motion to amend the criminal complaint. Judge Lewis concluded that the county court had originally acted improperly and without authority in amending the initial complaint to reduce the charge to actual physical control. However, Judge Lewis also concluded that Klose had been placed in jeopardy because the county court accepted his guilty plea to the reduced charge and accordingly dismissed the DUI charge. The State appealed.

The State contended that the county court had no legal authority or justification to amend the complaint and reduce the offense charged; therefore, jeopardy did not attach to Klose's plea of guilty to the amended complaint.

We must first determine if the county court was justified or had the legal authority under the aforementioned circumstances to amend the initial complaint.

Rule 3(b), North Dakota Rules of Criminal Procedure, provides as follows:

"(b) Amendment. The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

The explanatory note to Rule 3(b) states:

"Subdivision (b) is adapted from and is almost identical to Rule 7(e), N.D.R.Crim.P., and permits amendment of a complaint if not prejudicial to the substantial rights of the defendant...."

Rule 7(e), North Dakota Rules of Criminal Procedure, states:

"(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding, if no additional or different offense is charged and substantial rights of the defendant are not prejudiced."

The explanatory note for Rule 7(e) states:

"Subdivision (e) parallels the language of Rule 7(e), F.R.Crim.P., and is substantially in accordance with the provisions of Section 29-11-45, N.D.C.C. which allows amendment of the information."

The notes of Advisory Committee on the Federal Rules states:

"Note to Subdivision (e). This rule continues the existing law that, unlike an indictment, an information may be amended. Muncy v. United States, 289 Fed. 780, C.C.A.4th."

We note specifically that the rules permit an amendment to the complaint or information if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. 8 Moore's Federal Practice: Criminal Procedure p 7.05, in part, states:

"These requirements [for amendment] are cumulative. Thus if the court determines that the government is charging an additional or different offense, it has no discretion to permit amendment, regardless of whether or not defendant is prejudiced by the change. The result--apart from a needless clerical burden--is that the defendant obtains a new arraignment, and new opportunity for motions, although the attendant delays may not be needed for the preparation of his defense."

The language of Rules 3(b) and 7(e) provides that the magistrate or court may permit a complaint or information to be amended. This language implies that the information or complaint may be amended only with permission of the court. This language does not suggest that the court, on its own or at the request of the defendant without the concurrence of the prosecution, may amend the complaint or information. If the defendant were authorized to seek an amendment to the complaint without the concurrence of the prosecution, we could readily envision the defendant seeking an amendment in every case to reduce the charge to the lowest possible offense or, in the alternative, to charge something which would not even technically constitute an offense, but only an infraction. Such a construction would permit the defendant to determine what charge, if any, should be filed against him. It would bring about an absurd result. We therefore conclude that the county court, without the consent or request of the prosecution, had no authority to amend the complaint under the circumstances of this case. The amendment clearly reduced the offense and as a result charged a different offense than the one set forth in the initial complaint. This is precisely what the rules do not permit.

If the State had been given notice and simply failed or declined to appear, we may have had a different situation. The record is not clear how or when the State became aware of the hearing or proceedings in which the complaint was amended and the defendant pleaded guilty to the amended complaint. The defendant's brief states:

"The State was represented by an Assistant Cass County State's Attorney who was present throughout these proceedings and made no objection to any of the actions of the Appellee or the Court."

The record discloses that an assistant state's attorney was present at the hearing, but the record does not indicate that the assistant state's attorney did anything more but be present. 1 We do not believe the facts of this case established that the State waived the right to object to Klose's motion to amend the complaint.

Our review of the record discloses that a trial in this instance was not had. The proceedings indicate that the defendant moved to change or reduce the offense, which the court granted. The court then heard unsworn statements regarding the defendant's reformed behavior. The court asked the defendant to plead to the reduced charge and he pleaded guilty. The court accepted the plea and deferred imposition of sentence for two years and assessed court costs to the defendant in the amount of $150.00.

In resolving the issue under consideration, we are aware and recognize that in State v. Morris, 316 N.W.2d 80 (N.D.1982), we concluded that the court in a criminal bench trial may find the defendant guilty of a lesser included offense. However, in the instant case, no trial was had and no evidence was introduced upon which the court could make the determination that the evidence was not sufficient to support the original charge, but was sufficient beyond a reasonable doubt to support a lesser included offense, as is required pursuant to State v. Piper, 261 N.W.2d 650 (N.D.1977). Neither did the court follow the procedure outlined in Rule 11, NDRCrimP, relating to the acceptance of a guilty plea. Consequently, the court's authority to find a defendant guilty of a lesser included offense in a bench trial is not the real issue before us.

We conclude that under the circumstances of this case the county court did not have the authority to amend the initial complaint.

Having concluded that the county court did not have the authority to amend the initial complaint on motion by Klose, we must consider the application of the double jeopardy provision of the State and Federal constitutions to the county court's acceptance of Klose's guilty plea to the reduced charge.

The State contended that the vacation of the amended complaint and guilty plea and the reinstatement of the original complaint did not constitute double jeopardy, which is prohibited by the Fifth Amendment of the United States Constitution and Article I, Sec. 12, of the North Dakota Constitution. See also NDCC Sec. 29-01-07. 2

Klose, in support of his argument that the proceedings described earlier herein constituted double jeopardy cited State v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948).

In State v. Thomson, supra, after several district court judges in one manner or another became disqualified to hear the case, the Supreme Court, under its power of general superintending control over inferior courts, designated the Honorable W.H. Hutchinson to preside over the trial. Judge Hutchin...

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    • United States
    • United States State Supreme Court of North Dakota
    • December 21, 2010
    ...violated their constitutional rights by failing to make the required findings about the necessity of restraints. Cf. State v. Klose, 334 N.W.2d 647, 651 (N.D.1983) ("a person legally should not be permitted to benefit from an error resulting from or through the action that he promoted or in......
  • State v. Torres
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    ...Not only the defendant, but "the prosecution has the responsibility to avoid error by making appropriate objections." See State v. Klose, 334 N.W.2d 647, 651 (N.D.1983). Certainly, the defense cannot be faulted for not objecting as there was a reasonable basis for it to believe that the sta......
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    • United States State Supreme Court of North Dakota
    • April 10, 2007
    ...value prevented the court from doing more. On appeal a party cannot complain about error that is of their own making. See State v. Klose, 334 N.W.2d 647, 651 (N.D.1983). The court did not have evidence about the present value of Mark Lorenz's pension, and therefore the court did not err in ......
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    • United States State Supreme Court of North Dakota
    • January 16, 1985
    ...An issue or contention not raised or considered in the trial court cannot be raised for the first time on appeal. E.g., State v. Klose, 334 N.W.2d 647 (N.D.1983); State v. Hartsoch, 329 N.W.2d 367 (N.D.1983). Although the Ronngrens are represented by a different attorney on appeal, new coun......
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