State v. Stanko, 98-106
| Decision Date | 24 December 1998 |
| Docket Number | No. 98-106,98-106 |
| Citation | 974 P.2d 1139,292 Mont. 214 |
| Parties | , 1998 MT 323 STATE of Montana, Plaintiff and Respondent, v. Rudy STANKO, Defendant and Appellant. |
| Court | Montana Supreme Court |
Penelope S. Strong, Livingston, for Appellant.
Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown, for Respondent.
¶1 Defendant Rudy Stanko (Stanko) appeals his conviction in the District Court for the Tenth Judicial District, Fergus County, of two counts of reckless driving. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Does § 46-13-401(2), MCA, providing a six-month period in which to try misdemeanors, apply to a trial de novo in District Court?
¶4 2. Was Stanko bound by his counsel's consent to a continuance as to one count which was joined for trial with a second count in which Stanko was representing himself?
¶5 3. Did the District Court err in denying Stanko's motion to dismiss in which he argued that no one was injured and excessive speed could not be the sole basis for a charge of reckless driving?
¶6 4. Did the District Court err in denying Stanko's Motion to Dismiss for Selective Prosecution?
¶7 5. Is § 61-8-301, MCA, prohibiting reckless driving, unconstitutionally vague as applied to the facts in this case?
¶8 6. Did the District Court err in denying Stanko's proposed jury instruction defining wanton and willful conduct?
¶9 On August 13, 1996, at 11:45 a.m., Highway Patrol Officer Barb Lobdell was southbound on U.S. 87 near mile marker 33 when she observed a 1996 purple Camaro driving north at a high rate of speed. Officer Lobdell turned on her radar unit and clocked the vehicle as it crested a hill. The radar unit indicated that the vehicle was traveling 117 mph. Officer Lobdell activated her lights and set off in pursuit of the vehicle. The vehicle slowed down as it approached a semi-trailer and stopped when the driver noticed the lights of Officer Lobdell's patrol car. Officer Lobdell cited Stanko, the driver of the vehicle, for reckless driving pursuant to § 61-8-301, MCA. The citation read: "Reckless Driving! 117 mph over Crest of Hill on Narrow Road Moderate Traffic." This charge will be referred to throughout this opinion as "the Lobdell charge."
¶10 On October 1, 1996, at 4:30 p.m., Highway Patrol Officer Virginia Kinsey was driving north on U.S. 87 near mile marker 31 when she observed a 1978 Lincoln Continental coming toward her at a high rate of speed. Her visibility was momentarily cut off by a hill. When she observed the vehicle drive over the crest of the hill, she activated her radar unit and clocked the vehicle at 121 mph. Officer Kinsey cited Stanko, the driver of the vehicle, for reckless driving pursuant to § 61-8-301, MCA. The citation read, "operate a vehicle in a reckless manner 121 mph coming over crest of hill." This charge will be referred to throughout this opinion as "the Kinsey charge."
¶11 The two charges were joined for trial in Justice Court and Stanko was convicted of two counts of reckless driving. He appealed to the District Court for a trial de novo. On June 25, 1997, the District Court held a scheduling conference and subsequently issued a scheduling order wherein trial was set for September 4, 1997. The scheduling order did not specify a time limit for the filing of pretrial motions other than that they were to be filed so that they could be heard before trial. In this order the court recognized that Stanko intended to represent himself on the Lobdell charge and an attorney would represent him on the Kinsey charge.
¶12 On September 2, 1997, Stanko filed several pretrial motions regarding the Lobdell charge including a Motion to Dismiss for Selective Prosecution and a Motion to Dismiss for Vagueness and for Failure to have Knowledge or Intent. On September 5, 1997, the State filed a motion to continue the trial set for September 4, 1997, as Officer Kinsey was unavailable for trial due to an unexpected hospital stay. The motion was dated September 2, 1997, and the certificate of service accompanying the motion noted that it was mailed to Stanko and his counsel on September 3, 1997. Although the State declared in its motion that Stanko's counsel did not object to a continuance, it did not mention Stanko's position as to the continuance.
¶13 On September 2, 1997, the District Court held an in-chambers conference on the State's motion and, by order dated September 6, 1997, the court continued the matter until December 29, 1997. Stanko's counsel was present at this conference, but Stanko was not. Stanko subsequently filed a written objection to the motion to continue contending that it violated his right to a speedy trial. He specifically objected to the court proceeding with the hearing without him, to the setting of a new trial date, to his counsel's failure to consult with him regarding the continuance and to the court's failure to timely notify him of the hearing. On November 17, 1997, the court denied Stanko's various pretrial motions giving no basis for its denial of those motions.
¶14 A trial by jury was held on December 29, 1997. Prior to trial, Stanko's counsel objected to the trial going forward on the grounds that Stanko's speedy trial rights had been denied since he was not brought to trial within six months as provided for in § 46-13-401(2), MCA. The court denied this objection on the grounds that § 46-13-401(2), MCA, does not apply to appeals from justice court.
¶15 At trial, Officer Kinsey testified that the two-lane road upon which Stanko was traveling was narrow with a one-foot shoulder and a sloped embankment. She stated that although farm and ranch vehicles and machinery use the road, traffic in the area was light that day. However, she had observed pheasants at the side of the road and she was aware that deer frequented the area. She testified that she cited Stanko for reckless driving because he was traveling at an excessive speed over a hill where he had no visibility and if he had encountered anything in the road, he would not have been able to stop.
¶16 Officer Lobdell testified that she cited Stanko for reckless driving because he was endangering everyone on the road by traveling at a high speed on a narrow road as he crested a hill. She also testified that although traffic in the area was moderate on the day she cited Stanko, there was the potential for tourist traffic on the road, such as campers and boats, as well as farm and ranch vehicles.
¶17 At the close of the State's case, Stanko and his counsel moved for a directed verdict on both counts. The court denied the motion.
¶18 In his defense, Stanko testified that he drives approximately 6,000 miles per month and that he has never had an accident. He admitted that he was consciously driving at speeds of 117 mph and 121 mph at the times he was cited. However, he contended that he was not acting recklessly as his vehicles are in good condition and he is accustomed to driving at high speeds since he had raced stock cars at one time.
¶19 The jury found Stanko guilty on both counts. The court sentenced him to a fine of $250 on each count and to 30 days in jail on the Lobdell charge and 120 days in jail on the Kinsey charge with the sentences to run concurrently. Stanko appeals the District Court's judgment and sentence.
¶20 Does § 46-13-401(2), MCA, providing a six-month period in which to try misdemeanors, apply to a trial de novo in District Court?
¶21 Stanko contends that he was denied his right to a speedy trial because § 46-13-401(2), MCA, unequivocally states that anyone charged with a misdemeanor offense in Montana's courts must be brought to trial within six months of their first appearance. Stanko notes that more than six months elapsed between May 27, 1997, when he appealed to the District Court for a trial de novo, and December 29, 1997, when his trial was held.
¶22 Stanko concedes that this Court ruled in State v. Mantz (1994), 269 Mont. 135, 887 P.2d 251, that § 46-13-401(2), MCA, does not apply to trials de novo on appeal from justice court. However, he contends that we should overrule our holding in Mantz on the basis that the speedy trial statute does not distinguish between district court de novo trials and justice or city court trials. Furthermore, he argues that Mantz is outmoded in light of the 1997 amendment of § 46-17-201, MCA, that requires a defendant charged with a misdemeanor to elect one jury trial by right, either in the justice or city courts, or to reserve jury trial on a de novo appeal to district court.
¶23 Section 46-13-401(2), MCA, provides, in pertinent part:
After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant's motion is not brought to trial within 6 months. [Emphasis added.]
Under the plain language of this statute, the six-month time period within which the defendant must be brought to trial on a misdemeanor charge, runs from the entry of a plea upon that charge. In an appeal to district court, the defendant does not enter a plea as the matter is treated as an appeal for trial de novo. Stanko would have this Court read into the statute a meaning that was clearly not intended by the legislature. That is not the function or duty of this Court. See § 1-2-101, MCA.
¶24 In addition, Stanko's contention that Mantz is outmoded in light of § 46-17-201, MCA, which requires a defendant to elect one jury trial, is without merit. Whether the disposition in justice court was by a jury trial, a bench trial, or on motion, has no effect on whether § 46-13-401(2), MCA, is applicable to trials de novo in district...
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