State v. Sommerville

• Decision Date: 22 February 2013
• Docket Number: No. 20081042–CA.,20081042–CA.
• Citation: 728 Utah Adv. Rep. 35,297 P.3d 665
• Parties: STATE of Utah, Plaintiff and Appellee, v. Troy Munk SOMMERVILLE, Defendant and Appellant.
• Court: Utah Court of Appeals

297 P.3d 665

728 Utah Adv. Rep. 35

STATE of Utah, Plaintiff and Appellee,

v.Troy Munk SOMMERVILLE, Defendant and Appellant.

No. 20081042–CA.

Court of Appeals of Utah.

Feb. 22, 2013.

Charles A. Schultz, Attorney for Appellant.

John E. Swallow and Jeffrey S. Gray, Attorneys for Appellee.

Opinion

ROTH, Judge:

¶ 1 This case originated as an interlocutory appeal from the district court's denial of Defendant Troy Munk Sommerville's motion to dismiss a felony charge for driving under the influence (DUI). In State v. Sommerville, 2010 UT App 336, 248 P.3d 50,reh'g granted (Feb. 15, 2011), we reversed, concluding that Utah Code sections 76–1–401, –402 and –403 (the Single Criminal Episode Statute or the Statute), which bar multiple prosecutions of offenses that arise out of a single criminal episode, barred prosecution of the felony DUI offense in the district court. Id. ¶ 1. Following the issuance of our decision, the State filed a petition for rehearing. We now issue this revised opinion, which entirely replaces our previously-issued opinion, and affirm the district court's decision not to dismiss the felony DUI offense because we are persuaded that prosecution of that offense is not barred by the Single Criminal Episode Statute, double jeopardy, or res judicata.

BACKGROUND

¶ 2 In December 2006, following an investigation of a hit and run accident, Sommerville was arrested for DUI, seeUtah Code Ann. § 41–6a–502 (LexisNexis 2012).¹ At that time, he was also cited for following too closely, see id. § 41–6a–711, as well as other misdemeanor offenses. The arresting officer later issued another citation by mail for only the following too closely offense, and Sommerville promptly paid the bail schedule fine on that citation in January 2007. Murray City (the City) subsequently filed an information in the Murray City Justice Court, charging Sommerville with the remaining misdemeanor offenses, including the DUI.

¶ 3 When the City became aware that Sommerville had paid the fine for the following too closely offense, it moved to dismiss the remaining misdemeanor offenses. In support of its motion to dismiss, the City explained that it believed that the remaining misdemeanor offenses and the following too closely offense “arise from a single criminal episode” and, “[t]herefore, further prosecution of this case would be barred by double jeopardy.” In February 2007, the justice court dismissed the charges, including the misdemeanor DUI, on the City's motion.

¶ 4 In April 2007, Salt Lake County charged Sommerville in the district court with a felony DUI offense arising from the same December 2006 incident because Sommerville had at least two prior DUI convictions on his record. SeeUtah Code Ann. § 41–6a–503(2)(b) (providing that the penalty for DUI is a third degree felony if the defendant has two or more DUI convictions within the previous ten years). The information also charged Sommerville with the remaining misdemeanors that had been included in the information the City had filed in the justice court.² Sommerville moved to dismiss, asserting that both double jeopardy and res judicata barred subsequent prosecution of the offenses due to the justice court's earlier dismissal of the same offenses.

¶ 5 The district court dismissed the misdemeanor offenses but declined to dismiss the felony DUI offense, concluding that further prosecution of the DUI offense was not barred by the Single Criminal Episode Statute or by double jeopardy or res judicata. Sommerville appeals this decision.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Sommerville argues that prosecution of the felony DUI offense is barred under double jeopardy and res judicata. Constitutional issues such as double jeopardy present questions of law, which we review for correctness. State v. Cahoon, 2007 UT App 269, ¶ 7, 167 P.3d 533,rev'd on other grounds,2009 UT 9, 203 P.3d 957. Similarly, whether res judicata applies to bar a subsequent prosecution is a question of law reviewed for correctness. In re D.A., 2009 UT 83, ¶ 14, 222 P.3d 1172. Sommerville's arguments also implicate application of the Single Criminal Episode Statute, thus raising an issue of statutory interpretation, which is also a question of law. State v. Yazzie, 2009 UT 14, ¶ 6, 203 P.3d 984.³

ANALYSIS

I. The Single Criminal Episode Statute

¶ 7 The Single Criminal Episode Statute is designed to protect a defendant from multiple trials for offenses that are part of a “ ‘single criminal episode,’ ” which is defined as “all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.” Utah Code Ann. § 76–1–401 (LexisNexis 2012).

¶ 8 The parties do not dispute that all the offenses—including the following too closely offense and the DUI offense—are part of the same criminal episode. The issue is whether the disposition of the following too closely offense on the citation and the dismissal of the remaining misdemeanor offenses, including the DUI offense, in the justice court bars subsequent prosecution of the DUI offense as a felony in the district court.

¶ 9 “When interpreting statutes, we first look to the plain language of the statute and give effect to that language unless it is ambiguous.” State v. Jeffries, 2009 UT 57, ¶ 7, 217 P.3d 265. “Thus, a statutory provision should be read literally, unless it would result in an unreasonable or inoperable result.” Id. “When examining the statutory language we assume the legislature used each term advisedly and in accordance with its ordinary meaning.” Id. (citation and internal quotation marks omitted).

¶ 10 The portions of the Single Criminal Episode Statute that are most relevant to our analysis are sections 403(1) and 402(2). Section 403(1) provides, “If a defendant has been prosecuted for one or more offenses arising out of a single criminal episode, a subsequent prosecution for the same or a different offense arising out of the same criminal episode is barred if” (1) the “subsequent prosecution is for an offense that was or should have been tried ... in the former prosecution” and (2) the former prosecution resulted in acquittal or conviction, was improperly terminated, or was terminated by final order or judgment. Utah Code Ann. § 76–1–403(1); see also id. § 76–1–403(2)–(4) (defining acquittal, conviction, and improper termination). To determine whether an offense charged in the subsequent prosecution should have been tried in the former prosecution, section 403(1) refers to section 402(2), which provides that “unless the court otherwiseorders to promote justice, a defendant shall not be subject to separate trials for multiple offenses” that are part of a single criminal episode when (1) “[t]he offenses are within the jurisdiction of a single court” and (2) “[t]he offenses are known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment.” Id. § 76–1–402(2).

¶ 11 There are two events in the procedural history of this case that might implicate the Single Criminal Episode Statute so as to bar subsequent prosecution of the felony DUI offense in the district court. The first is Sommerville's payment of the bail schedule fine on the citation for only the following too closely offense. The second is the City's prosecution of Sommerville by information in the justice court and subsequent voluntary dismissal of the remaining misdemeanor offenses—in particular, the dismissal of the misdemeanor DUI offense. We conclude that neither of these events bars subsequent prosecution of the felony DUI offense in the district court under the Single Criminal Episode Statute. First, the issuance and disposition of the citation does not constitute a prosecution under the Single Criminal Episode Statute. And second, the prosecution of the misdemeanor DUI offense in the justice court was not concluded in a manner that bars subsequent prosecution.

A. Citation for the Following Too Closely Offense

¶ 12 Application of the Single Criminal Episode Statute turns on the occurrence of former and subsequent prosecutions for offenses that arise out of the same criminal episode. So whether multiple prosecutions have occurred is a fundamental question in any analysis to determine whether the Statute bars prosecution of an offense arising out of a single criminal episode. Under Utah law, “all criminal prosecutions whether for felony, misdemeanor or infraction shall be commenced by the filing of an information or the return of an indictment.” Utah R.Crim. P. 5(a); see alsoUtah Code Ann. § 77–2–2 (LexisNexis 2012) (providing that “[f]or the purpose of this chapter” on prosecution, screening, and diversion, “ ‘[c]ommencement of prosecution’ means the filing of an information or an indictment”). An information ⁴ is “an accusation, in writing, charging a person with a public offense [and] is presented, signed, and filed in the office of the clerk where the prosecution is commenced.” Utah Code Ann. § 77–1–3(13); see also Black's Law Dictionary 849 (9th ed. 2009) (defining “information” as “[a] formal criminal charge made by a prosecutor”). Under Utah law, the filing of an information—and, therefore, the initiation of a prosecution—requires the involvement of a prosecuting attorney. SeeUtah Code Ann. § 77–2–1.1 (“The prosecuting attorney shall sign all informations.”). See also State v. Leary, 646 P.2d 727, 730 (Utah 1982) (explaining “the steps required to properly initiate a prosecution”), superseded by statute as explained in Tweed v. Bertram, 2003 WL 26098341, at *12 (D.Utah Sept. 8, 2003).

¶ 13 Although commencement of a prosecution requires the filing of an information by a prosecutor, a criminal matter may also be initiated and disposed of by citation in cases involving misdemeanors and infractions. Utah Code Ann. § 77–7–18 (providing that a “person subject to arrest or prosecution on a misdemeanor or infraction charge may be issued and delivered a citation”). Citations may be...