State v. Waldrup , 51 State Rptr. 344 ( 1994 )

JUSTICE NELSON

delivered the Opinion of the Court.

The State of Montana (State) appeals an order of the Twentieth Judicial District Court, Lake County, dismissing the Information filed against the defendant/respondent, Jeffrey Waldrup, (defendant) charging him with four counts of indecent exposure, a felony pursuant to § 45-5-504, MCA. The District Court dismissed the Information on the basis that § 46-11-503, MCA, is an absolute bar to prosecution of the offenses charged in the Information. We hold that § 46-11-503, MCA, does not bar prosecution of the defendant for the four counts of indecent exposure charged in the Information. We therefore, reverse and remand for reinstatement of the charges and further proceedings.

One issue raised by the parties is dispositive in this case: Did the District Court err in granting defendant’s motion to dismiss by applying § 46-11-503, MCA, to the offenses charged in the Information, when those charges were separate transactions from the previous convictions?

On March 31, 1993, the Poison City Police Department charged the defendant with three counts of indecent exposure for incidents occurring March 20, 22, and 31, 1993. The defendant appeared in Poison City Court on April 1, 1993, where the city judge advised the defendant of his rights and the defendant waived those rights. Upon investigating one of the charges at this appearance, the city judge dismissed that charge, and the defendant pled guilty to the remaining two counts of indecent exposure. The defendant was sentenced on April 7,1993, on the two misdemeanor charges to which he had pled.

After defendant had been charged with the above mentioned three counts of indecent exposure, the police continued to investigate previous reports of a man exposing himself. The defendant was a suspect. In pursuing the investigation, the police contacted prior alleged victims to determine if they could identify the defendant as the perpetrator. Four victims were able to identify the defendant as the perpetrator from a photographic lineup. As a result of these identifications, the Lake County Attorney's Office filed an Information on April 16, 1993, charging the defendant with four counts of indecent exposure in violation of § 45-5-504, MCA. The incidents charged in the Information allegedly occurred on September 23,1992, October 15, 1992, March 22, 1993 and in September 1992, and involved four different victims.

According to the terms of § 45-5-504(2)(c), MCA, upon a third or subsequent conviction of indecent exposure, a defendant’s punishment can be enhanced to a felony. Because the defendant had been convicted of two counts of indecent exposure by pleading guilty to the two charges in City Court, he now faces felony charges for the four counts charged in the Information.

The defendant moved to dismiss the charges on the grounds that prosecution was barred under § 46-11-503, MCA, for reasons of fundamental fairness, and because the prosecution violated various constitutional provisions. After considering the parties’ briefs and oral arguments, the District Court granted the defendant’s motion to dismiss by order dated July 8, 1993. The State appeals from that dismissal.

The District Court based its order of dismissal on § 46-11-503, MCA, holding that the statute was absolute bar to the prosecution of the offenses charged in the Information. In applying § 46-11-503, MCA to the facts, the District Court reasoned that: (1) all of the facts constituting the offenses charged in the Information were contained in the Poison City Police files and were therefore known, or should have been known to the prosecutor at the time the subsequent offenses were prosecuted to conviction in the Poison City Police Court; (2) the probable cause which was found to exist at the time the Information was filed existed on the date the defendant was sentenced in City Court; (3) the incidents, which were the basis of the offenses charged in the Information were consummated prior to the incidents which were the basis of the defendant’s City Court convictions; and (4) the Poison City Court convictions of defendant had not been set aside, reversed or vacated.

The District Court did not address whether the incidents charged in the Information were part of the same transaction as the convicted offenses. However, one week after the District Court issued its order of dismissal in this case, we ruled in State v. Berger (1993), 259 Mont. 364, 856 P.2d 552, that § 46-11-503, MCA, applied only to cases involving the same transactions. Not having the benefit of the Berger decision, the District Court erroneously applied § 46-11-503, MCA, to bar the subsequent felony charges on the basis of double jeopardy.

In Berger, we ruled that the 1991 amendments to § 46-11-503, MCA, did not eliminate the “same transaction” requirement from what is now subsection (l)(b) and did not expand the protection of the statute to unrelated offenses. Berger, 856 P.2d at 553. The defendant in Berger, sold dangerous drugs to an informant. The next day, officers executing a search warrant found marijuana in the defendant’s house, and charged him with two counts of possession of dangerous drugs. The defendant pled guilty to the possession charges injustice court. Three months later an Information charging Berger with sale of dangerous drugs was filed in District Court.

Berger appealed the charge, alleging that the 1991 amendments to § 46-11-503, MCA, eliminated the same transaction requirement from § 46-ll-503(l)(b), MCA, and expanded the protection of the statute to unrelated offenses. However, this Court ruled that § 46-11-503, MCA, did not bar prosecution of the defendant for sale of dangerous drugs. “Neither the legislative history nor the Commission Comments reveal that the legislature intended to substantively change the application of § 46-11-503, MCA, from prosecutions resulting from the same transaction to unrelated prosecutions.” Berger, 856 P.2d at 554.

In the instant case, the defendant has been charged with four separate counts of indecent exposure. The incidents are not part of the same transaction, as they allegedly occurred on four different dates and involve four different victims. The term “same transaction” is defined at § 46-1-202(23), MCA (1991), as follows:

“Same transaction” means conduct consisting of a series of acts or omissions that are motivated by:

(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective; or

(b) a common purpose or plan that results in the repeated commission of the same offense or effect upon the same person or the property of the same person.

The defendant allegedly exposed himself to different victims on different dates in each of the charged incidents. Therefore, the incidents cannot be part of a plan resulting in the repeated commission of the same offense against the same person.

Because § 46-11-503, MCA, applies only to prosecutions arising from the same transaction, this statute does not bar prosecution of the four counts of indecent exposure. Therefore, we reverse the District Court’s decision, and remand for reinstatement of the charges and further proceedings.

Defendant raised other arguments on appeal. Inasmuch as the District Court did not address those other arguments and inasmuch as the defendant has not been convictedrof or sentenced on any of the four charges at issue here, defendant’s arguments are premature. We decline to address those arguments at this time.

Reversed and remanded.

JUSTICES HARRISON, GRAY and WEBER concur. CHIEF JUSTICE TURNAGE did not participate.