State v. Berger , 259 Mont. 364 ( 1993 )

JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Twelfth Judicial District Court, Hill County, wherein the appellant, Richard Wayne Berger, pled guilty to the offense of criminal sale of dangerous drugs in violation of § 45-9-101, MCA, pursuant to a plea agreement under which he reserved his right to appeal the application of § 46-11-503, MCA, to this case. We hold that § 46-11-503, MCA, does not bar the prosecution of the appellant for the offense of criminal sale of dangerous drugs.

For purposes of this appeal, the parties have entered into an agreed statement of facts, as follows:

1. Shortly after 8 p.m., on April 22, 1992, Hill County Sheriff’s deputies monitored a sale of dangerous drugs by Richard Wayne Berger to an informant wearing an electronic transmitting device.

2. The next day, April 23,1992, shortly before midnight, officers executed a search warrant at Berger’s house.

3. Berger was found to be in possession of small amounts of marijuana and, at 12:15 a.m. on April 24, 1992, he was arrested and charged with two counts of possession of dangerous drugs (marijuana) in violation of MCA § 45-9-102.

4. On April 24,1992, Berger appeared injustice court and pled guilty to the two possession charges.

5. The information charging Berger with criminal sale of dangerous drugs for the April 22, 1992 sale was filed in the district court on July 28, 1992.

6. The parties agree that the April 22, 1992 drug sale and the April 24, 1992 possession charges were not a part of the “same transaction” as defined in MCA § 46-1-202(23).

Appellant Berger contends that the facts of this case fit within the provisions of § 46-ll-503(l)(b), MCA (1991), with the result that his prosecution for criminal sale of dangerous drugs is barred. He maintains that the 1991 amendments to § 46-11-503, MCA, eliminated the “same transaction” requirement from what is now subsection (l)(b) and expanded the protection of the statute to unrelated offenses. We disagree.

Section 46-11-503, MCA, is the Montana “double jeopard/’ statute. In pertinent part, that section provides as follows:

46-11-503. Prosecution based on same transaction barred by former prosecution. (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses he in a single court, a prosecution is barred if:

(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated [.]

Section 46-11-503, MCA, was originally enacted in 1973 as § 95-1711(3), RCM (1947), and expressly applied only to prosecutions based upon the same transaction. See Sec. 6, Ch. 513, L. 1973.

Prior to amendments adopted by the legislature in 1991, the statute, in pertinent part, provided as follows:

46-11-503. When prosecution based on same transaction barred by former prosecution. If the offenses were known to the attorney prosecuting upon sufficient evidence to justify the filing of an information or the issuance of a warrant of arrest and were consummated prior to the original charge and if the jurisdiction and venue of the several offenses lie in a single court, a prosecution based upon the same transaction as a former prosecution is barred by such former prosecution under the following circumstances:... (Emphasis added).

The 1991 amendments to § 46-11-503, MCA, were part of a number of amendments adopted by the legislature to the Montana Code of Criminal Procedure, Title 46 MCA. It is well settled that, when construing a statute, the intent of the legislature is controlling, Holly Sugar v. Department of Revenue (1992), 252 Mont. 407, 412, 830 P.2d 76, 78; § 1-2-102, MCA.

While there is no specific discussion in the legislative history pertaining to the amendments to the code section at issue, it is instructive to note, however, that at the House Judiciary Committee hearing on March 8, 1991, with respect to Senate Bill 51, Robert Dechamps III, Chairperson of the Montana Criminal Procedure Committee stated that the objective of the bill was to streamline, codify, unify and consolidate procedural rules of criminal procedure that had been adopted by the courts over the years that did not exist in statute. “... [M]ost of what the committee did really didn’t change anything. The committee streamlined and codified the rules. Most of the bill is existing law.” See minutes of hearing on SB 51, House Judiciary Committee, March 8, 1991, p. 6.

In his comments as sponsor of the bill, Senator Van Valkenburg pointed out that “[t]his is a bill that modernizes and recognizes changes in case law that has [sic] occurred over the past 25 years since Montana’s Criminal Procedure Code was last revised and put into statute many of the common practices that occur in the criminal arena in the state of Montana.” See minutes of hearing on SB 51, House Judiciary Committee, March 8,1991, p. 5.

Moreover, the 1991 Commission Comments note that the new subsections (l)(a) and (l)(b)"... preserve the 1987 code but eliminate confusing and unnecessary provisions.”

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.

The dissent argues that the majority has inserted into § 46-11-503(1), MCA, the requirement that the offenses be part of the “same transaction” and that it has improperly resorted to the use of legislative intent in construing the statute, thereby ignoring the clear provisions of the language of that section. While we have no argument with the principles of statutory construction cited by the dissent, when subsection (1) of the statute is read in conjunction with new subsection (2), the language of subsection (1) becomes less clear.

New subsection (2) of the statute provides that “[a] prosecution based upon the same transaction as a former prosecution is not barred under subsection (l)(d) when: ... .” We are required to avoid any statutory interpretation that renders any sections of the statute superfluous and does not give effect to all of the words used. Central Montana Elec. v. Adm’r of Bonneville Power (9th Cir. 1988), 840 F.2d 1472, 1478. If subsection (1) does not continue to pertain to prosecutions based upon the same transaction, then the language in subsection (2) making reference to such prosecutions is superfluous.

Furthermore, in amending the title of § 46-11-503, the legislature retained the “same transaction” language of the immediately preceding subsection (1). While, in construing a statute, the wording of the body, and not that of the title controls, Eastman v. School District No. 1 (1947), 120 Mont. 63, 78, 180 P.2d 472, 479 (overruled on other grounds), resort may, nevertheless, be had to the title as an aid to construction. State v. Bruce (1938), 106 Mont. 322, 332, 77 P.2d 403, 408, affirmed 305 U.S. 577, 59 S.Ct. 465, 83 L.Ed. 363 (overruled on other grounds). The legislature’s retention of the “same transaction” language in the title of the statute is a further indication that subsection (1) was not expanded to cover unrelated prosecutions.

Taking into consideration the general intent of the legislature to make procedural rather than substantive changes in the law by its adoption of the 1991 amendments to the criminal procedure code, and the above mentioned rules of construction, we hold that § 46-11-503(1), MCA, continues to apply only to prosecutions arising from the same transaction.

In this case the parties have agreed, and the record reflects, that the appellant’s prosecution of criminal sale of dangerous drugs arose out of a transaction separate from that involving his prosecution for possession of dangerous drugs. Accordingly, based upon our construction of the statute, § 46-11-503, MCA, does not bar his prosecution for criminal sale of dangerous drugs, and his conviction of that offense is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.