State v. Topp

• Citation: 75 P.3d 330,317 Mont. 59,2003 MT 209
• Decision Date: 12 August 2003
• Docket Number: No. 02-054.,02-054.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael Patrick TOPP, Defendant and Appellant.
• Court: Montana Supreme Court

75 P.3d 330

2003 MT 209

317 Mont. 59

STATE of Montana, Plaintiff and Respondent, v. Michael Patrick TOPP, Defendant and Appellant.

No. 02-054.

Supreme Court of Montana.

Submitted on Briefs August 22, 2002.

Decided August 12, 2003.

For Appellant: David E. Stenerson; Stenerson Law Office, Hamilton, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, George H. Corn, Ravalli County Attorney, Hamilton, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Michael Patrick Topp (Topp) was convicted in the Twenty First Judicial District Court, Ravalli County, on his guilty pleas to one felony and two misdemeanor offenses. Topp appeals from the District Court's earlier order denying his motion to dismiss the two misdemeanor charges on statutory speedy trial grounds, having reserved the right to do so. We affirm.

¶ 2 The dispositive issue on appeal is whether the District Court erred in denying Topp's motion to dismiss the misdemeanor charges pursuant to § 46-13-401(2), MCA.

BACKGROUND

¶ 3 Topp's vehicle collided with an oncoming vehicle as he drove from the parking lot of the Rustic Hut Tavern in Florence, Montana, onto U.S. Highway 93. He was cited into the Ravalli County Justice Court on January 23, 2001, for the misdemeanor offenses of driving under the influence of alcohol and/or drugs (second offense) and failure to provide proof of liability insurance (fourth offense). On February 5, 2001, Topp pled not guilty to both offenses. The prosecution moved to dismiss the citations because it intended to file charges in the District Court and, on March 14, 2001, the Justice Court granted the motion.

¶ 4 On March 21, 2001, the State of Montana (State) filed an information against Topp in the District Court, charging him with felony criminal endangerment and the two misdemeanor offenses previously dismissed by the Justice Court. Topp pled not guilty to all charges on April 18, 2001. Subsequent amendments to the information are not at issue in this appeal.

¶ 5 The District Court set trial for August of 2001, but rescheduled it to September 17, 2001, on the State's motion. On August 13, 2001, Topp moved to dismiss the two misdemeanor charges for lack of a speedy trial. Topp argued that § 46-13-401(2), MCA, required the misdemeanor charges to be tried within six months of February 5, 2001, the date on which he pled not guilty in the Justice Court. The District Court concluded the constitutional speedy trial analysis, rather than the statute, applied and denied Topp's motion. Reserving his right to appeal that ruling, Topp pled guilty to all three charges. The District Court sentenced Topp and ultimately entered an Amended Judgment. Topp appeals from the District Court's denial of his motion to dismiss the misdemeanor charges on statutory speedy trial grounds.

STANDARD OF REVIEW

¶ 6 Whether a district court properly denied a motion to dismiss is a legal issue which we review to determine whether that court's interpretation was correct. State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66 (citing State v. Mantz (1994), 269 Mont. 135, 137, 887 P.2d 251, 253; Doting v. Trunk (1993), 259 Mont. 343, 347, 856 P.2d 536, 539).

DISCUSSION

¶ 7 Did the District Court err in denying Topp's motion to dismiss the misdemeanor charges pursuant to § 46-13-401(2), MCA?

¶ 8 Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant's right to a speedy trial. Section 46-13-401(2), MCA, addresses the time in which a person charged with a misdemeanor must be tried:

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.

With regard to the constitutional speedy trial right, Montana courts apply a modified Barker v. Wingo test. See City of Billings v. Bruce, 1998 MT 186, ¶ 19, 290 Mont. 148,

¶ 19, 965 P.2d 866, ¶ 19 (citing Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101).

¶ 9 Analogizing to Mantz and Bullock, the District Court determined that the proper joinder of the misdemeanor and felony charges against Topp, together with the strong policies underlying joinder, rendered all of the charges against Topp susceptible to the Bruce speedy trial analysis. Applying that analysis, the court determined Topp's constitutional speedy trial rights had not been violated. Topp does not challenge the court's Bruce analysis. He contends the District Court improperly interpreted—and failed to apply— § 46-13-401(2), MCA. He also addresses the case law on which the court relied.

¶ 10 Topp first asserts entitlement to dismissal of the misdemeanor charges pursuant to § 46-13-401(2), MCA, because he was not brought to trial on those charges within six months of his February 5, 2001 not guilty pleas in the Justice Court. This assertion is totally without merit since the Justice Court charges were, in fact, dismissed without prejudice on March 14, 2001. No charges were pending against Topp for approximately one week thereafter and, consequently, no speedy trial "clock" was running.

¶ 11 Moreover, Topp does not object to the joinder of the misdemeanor and felony charges against him in the District Court. Indeed, he concedes that felony charges may take longer to prepare and try. He contends, however, that the misdemeanor charges remain subject to the "six-month" rule contained in § 46-13-401(2), MCA, while the felony charge falls under the Bruce analysis. We disagree and, because the joinder issue relates to both Topp's statutory interpretation argument and the cases on which the District Court relied, we discuss that subject next.

¶ 12 Rule 8(a), Fed.R.Crim.P., states that an indictment or information may charge a defendant with multiple offenses "whether felonies or misdemeanors or both" if the offenses are based on the same act or transaction. In general, federal authorities are uniformly in support of joining multiple offenses that arose from the same acts by the defendant. See, e.g., United States v. Alexander (7th Cir.1998), 135 F.3d 470, 476

; United States v. Bullock (5th Cir.1995), 71 F.3d 171, 174. Out of considerations of fairness to defendants and of orderly and efficient law enforcement, the policy of the United States Department of Justice is "that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions." 1A CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 143 (3d. Ed.1999) (citing Petite v. U.S. (1960), 361 U.S. 529, 530, 80 S.Ct. 450, 451, 4 L.Ed.2d 490, 492).

¶ 13 Montana authorities are generally in accord. Section 46-11-404(1), MCA, is substantively identical to Rule 8(a), Fed. R.Crim.P., providing that multiple offenses, "whether felonies or misdemeanors or both," may be charged in the same charging document if the offenses are of the same or similar character, based on the same transactions, or constitute a common scheme. Considerations of judicial economy exert a strong pressure in favor of joining related offenses. See State v. Martin (1996), 279 Mont. 185, 192, 926 P.2d 1380, 1385

.

¶ 14 As noted above, Topp does not dispute the propriety of joinder in the present case. In addition, he recognizes that § 46-13-401(2), MCA, contains a "good cause" exception. While not expressly stated, Topp may be attempting to argue that, because the District Court did not expressly make a "good cause" determination, joinder does not constitute good cause as contemplated by § 46-13-401(2), MCA.

¶ 15 It is true that no express good cause determination was made here. If the District Court implicitly made a determination that joinder and the purposes it serves constituted good cause not to apply § 46-13-401(2), MCA, to the misdemeanor charges against Topp, that determination would be a conclusion of law in the context of this criminal proceeding, reviewable to determine whether the court was correct. See Bullock, 272 Mont. at 368,

901 P.2d at 66 (citing Mantz, 269 Mont. at 137,

887 P.2d at 253). In that regard, the District Court did state that it would "thwart[ ] the very principle of joinder" to subject the misdemeanor charges to the statute, thus requiring that they be tried more quickly, while the felony charge remained subject to the separate Bruce analysis. Assuming arguendo that the conclusion was reached as a good cause determination regarding why § 46-13-401(2), MCA, does not apply to the misdemeanors in the District Court, Topp advances no authority under which such a determination would be legally incorrect, as required by Rule 23(a)(4), M.R.App.P. As a result, we will not address that matter further. See In re B.P., 2001 MT 219, ¶ 41, 306 Mont. 430, ¶ 41, 35 P.3d 291, ¶ 41 (citation omitted).

¶ 16 Topp also asserts that Mantz and Bullock, on which the District Court relied, are not directly on point here. He is correct and, indeed, the District Court acknowledged as much. That court merely analogized to Mantz and Bullock, and we conclude it did so properly. ¶ 17 Mantz involved a defendant tried and convicted of a misdemeanor in city court, who thereafter appealed to the district court for a trial de novo. Mantz, 269 Mont. at 136-37,

887 P.2d at 252. He was not tried in the district court within the six months set forth in § 46-13-401(2), MCA, and sought dismissal of the misdemeanor on that basis. The trial court denied the motion, the defendant was convicted and, on appeal to this Court, the defendant asserted error in the trial court's failure to dismiss the misdemeanor charge on statutory speedy trial grounds. Mantz, 269 Mont. at 137,

887 P.2d at 252-53. We disagreed, noting that we previously had...