STILSON v STATE
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IN THE SUPREME COURT OF THE STATE OF MONTANA No. MICHAEL 96-071 SCOTT STILSON, Petitioner, OPINION AND ORDER v. STATE OF MONTANA, Respondent. Petitioner Michael post-conviction Fourth not Scott relief and Eighth be twice alleging Judicial put in Stilson that filed a petition convictions District jeopardy has Courts guaranteed Amendments to the United States Section of the Montana for he received violated by the his rights Fourteenth and to and Fifth Article II, Constitution. 25, On March Judicial District a bad check, written in guilty a Lewis to the sentenced than Stilson Judicial three On April 1991, of charging felony, 29, District six years by the First Judicial for numerous bad checks same day Stilson pled deferred the State sentenced to run District consecutive Court. District of with a felony, to the Stilson issuing Court sentence. an Information Stilson County, guilty the imposition filed charging Missoula pled Court confinement scheme, 1991, of First the 27, crime the with On the Court Stilson in Stilson a three-year in an Information on March and 1991, bad checks filed County. and Clark to State common District 1, 1991, the the charge, On January Fourth 1991, Court 26, Constitution, in the charge, to issuing the more common scheme. and on May 20, a suspended to the in sentence sentence imposed On May Judicial District a felony, county, listed filed charging referenced it only an Information Stilson with the Cascade While a single as witnesses businesses. charge individuals On June 14, 1991, confinement First sentence 20-25 in the Great also wrote Bow Counties. counties Court ordered Stilson On February post-conviction Fourth, 1996, relief common scheme and, therefore, Court convictions The State argues Stilson argues when he pled claims It is well that and that that him to ten imposed in of the wrote total checks and Butte-Silver in those this Courts his Stilson's double them prior he did because his established that 2 petition a the for First, same Judicial jeopardy his for the rights. claims to entering claims plea in jeopardy not waive guilty District and Eighth double those bad checks. were the Fourth of Judicial convictions District that either filed his to raise that the Stilson the for Stilson violated waived because he failed pleas. indicated by the Fourth alleging Judicial to Execution prosecuted entered and Eighth District sentenced Courts. to pay restitution 15, guilty Great $2,961. was not but the judgment in Cascade separate pled bad checks in Yellowstone Stilson Information to the sentences area in Cascade County totaled Stilson from six District Falls a bad check, County Court The judgment was suspended. checks written Judicial issuing Stilson to run consecutive and Fourth in the Eighth bad check written and on the same day the District years the Court common scheme. specifically Falls 1991, the State 28, double are his guilty jeopardy are jurisdictional. of guilty which is voluntary and understandingly nonjurisdictional defects constitutional v. (1994), v. Turcotte State Mont. that to in "those cases government 164 Mont. the prior 873 the the power to to the 428, 524 P.2d court bring of Hagan 1387 (citing 787, exception could the of plea. 1385, grounds district waiver claims P.2d 426, jurisdictional which lacked 35, a including occurred 31, (1974), constitutes defenses, which 265 In Haqan we held the and violations State made 788). applies determine indictment that atthetimeof accepting the guilty plea from the face of the indictment or from the record. ( Hasan, 873 P.2d at 1992), 973 F.2d 764, 1388 (quoting District in Stilson's we contained not charges the bad that Cortez two prior (9th checks in double claims in due to the twice merits five the of Cir. at that of the to time guilty County pre-sentence Stilson's previous also referenced the plea and government the was Eighth Judicial record before the power it for sufficient lacked constitutional the to bring prohibitions We conclude claim Cascade County. the jeopardy in report and Clark jeopardy. his copy regard convictions whether his a The Stilson's at issue Stilson Lewis conclude a person waived with County. accepted his it prepared in to determine address v. and was sentenced before Missoula Court placing had conviction Thus, court guilty report sentencing the pled Court investigation District States 767). When Stilson the United and that against Stilson has therefore proceed to one common scheme to write thing that claim. he engaged different in counties 3 and the only separates his 1'common scheme" nothing in design. Stilson maintains for common scheme the crime into is the an or State argues multiple Legislature not "common an element provision require therefore the the of that criminal and punished County, he cannot asserts if that the that be a the is in and distinct of is not enhancement each other or county did counties and According common common offense, scheme" offenses. one case a misdemeanor in the this be the sentence offense committed additional to prohibit in "common offense a defendant of and rather that separate convictions protections a bad check" but acts convicting foreclose Clark jeopardy "issuing maintains were and that and continuing same offense, determines they State, the offense proof charged he was convicted double The State The State felony. not for scheme." which since Lewis that intended of crimes argues again. punishments the the He a different that in geography. of evidences punished The is element charges prosecuted parts scheme schemes to does in not different counties. In stated has State that v. in examining consistently United States (1932), 810 P.2d different double arising be convicted from at (1991), the 284 U.S. 304. 169, double set 299, 52 S. Ct. that forth dangerous 4 in 299, this we Court Blockburger 180, v. 76 L. Ed. 306. Blockburser dealt with two was the whether two different of 810 P.2d jeopardy, test issues--one of violating sale of We noted jeopardy a single 248 Mont. questions applied Crowder, could Crowder drugs, statutory and the defendant provisions second was whether the defendant a dangerous Crowder, drug could under be convicted a single of two counts provision of the of selling Narcotics Act. 810 P.2d at 304-05. When two distinct to determine statutory whether each provision there requires provisions are two offenses proof Crowder, 810 P.2d at The U.S. Supreme Court are involved, of a fact 304 (citing or only which this one is whether the other Blockburser, explained the test does not. 284 U.S. "elements test" at 304). by stating that: A single act may be an offense against two statutes; and if each statute requires proof of an additional fact an acquittal or conviction which the other does not, under either statute does not exempt the defendant from prosecution and punishment under the other. Blockburser, This whether be Court for same act 250 Mont. mischief); (holding that intercourse Long (19861, 400, of State employed a Clawson of (1989), of the same statutory issue. we dealt convicted of with (possession 5 781 P.2d both that and sexual a situation with Wolfe can criminal kidnapping); Crowder was charged provision v. and 413, assault two a defendant explosives and aggravated of both misdemeanor second Blockburser that 239 Mont. be determine of violating 502, 726 P.2d 1364 (holding however, to See State transaction. can consent 223 Mont. and convicted possession defendant without In Crowder, or test" 821 P.2d 339 (holding both v. can be convicted "elements the can be charged the convicted at 304. has a defendant statutes (1991), 284 U.S. 267 sexual State v. a defendant assault). similar to the two violations of dangerous drugs) and we were faced on drugs with his the question person and constituted two separate principles of fundamental once for conduct of whether possession Crowder's drugs of possession his acts of possession. fairness on of property Crowder asserted required that that he be charged which amounted to the same transaction. only Crowder, 810 P.2d at 304. We again issue looked to the Blockburqer Court which addressed the as follows: Each of several successive sales constitutes a distinct they may follow each other. offense, however, closely [Wlhen the impulse is single, but one indictment no matter how long the action may continue. If iik; successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie. Blockburqer, 284 U.S. at 302 (citation convictions, the U.S. Supreme Court examined the legislative behind the Narcotics punish engaging in rather penalized any sale. We adopted second test determine the U.S. possession business intent analysis the selling 284 U.S. in Crowder unit discretion subject only 620, Legislature is to Bell 622, with is the 99 L. Ed. 905, drugs and concluded 6 but a involved. To look legislature to to limitations. States 910). punish that drugs, courts v. United to not and articulated constitutional intended did at 302. prosecution" of the intent statute dangerous provision since of dangerous In affirming the one statutory 810 P.2d at 305 (citing that of that Blockburser, "allowable 81, 82, 75 S. Ct. we held and concluded a similar punishments, Crowder, the when only legislative impose Act omitted). (1955), 349 In Crowder each the district separate court did not err the in person failing and to join possession the separate on the counts premises. of possession Crowder 810 on P.Zd at Crowder in 305-06. The facts that of the present Stilson was charged (1989) I and issuing a bad check, is was whether for 48, than 730 P.2d 1178, specifically contention which determines if the 296, of reliance 697 P.2d defendants issuing focus were bad disputed that that the acts the acts were that a single our is charged as part their conduct issuing "either crime the is of question could be and State been v. county the State's whether McHugh of those with and one the are incomplete (1985), 215 cases the count of defendants We held a common scheme such or or scheme. a common scheme. bad checks 7 with one common In both committed, Fleminq, remains a common scheme individually statute." is or felony. than constituted MCA, as it enhancement still one clearly a misdemeanor is more is 225 a sentence analysis only (1987), scheme agree with of Fleming the merely crime multiple had v. ยง 45-6-316, misplaced. in checks of Thus, "[clommon under on Fleminq 466, State (3) of the may be charged Stilson's MCA counties a defendant we do not scheme" a defendant Mont. in that Therefore, "common Nevertheless, 5 45-6-316, different that subsection that provision not that and proven in 1180. three intended we stated mentioned at with same statute, common scheme. fact to be charged P.2d all themselves one common scheme. the an element 730 in a felony, We acknowledge Mont. the Legislature more align under convicted the punished case that [were] they acts if show which followLed closely design." one convictions a State we did not a basis While and of written in in evidence for charge required to allow to Stilson, the else in of issuing bad Code does not provide for has the for conclude that in Under the the that conclude one county appropriate double a defendant from in each county and distinct to a number together, of neither jeopardy who has been convicted of being county. separate when taken the the prevent particular bad checks basis and common schemes common scheme was charged Stilson and, intend MCA, or anywhere a different Stilson were wrote not possibility facts multiple a possibility. necessarily that that we in each county county we such common scheme case into 5 45-6-316, Stilson a common scheme In this did the According a single schemes, do not convicted Legislature circumstances, protections another one common scheme. in divide foreclosed facts than the with common legislature constituted appropriate more foreclose the common schemes. we agree multiple conduct the of provide multiple we upheld under violations. to though nor one common scheme did into Even criminal address could, felony a continuing defendants' divide to Code, checks not the that multiple checks that argues Legislature the at be convicted Stilson and 1180. defendant circumstances, the P.2d and concluded a common scheme, that evidencing 730 Fleminq, another felony State such county scheme" different a series common scheme to prove only and the bad checks "common of for the those written offenses. vendors in each of acts provides the in county. The each offense in each county was different and specific transactions to each county and the series were different from those in each county jurisdictions, both individually Thus, under the specific Stilson committed common scheme, charged jeopardy Judicial rights. IT IS conviction of of and circumstances writing the the convictions District Courts case, a felony, for which he was he received in the Fourth violate his double petition for post- did not Therefore, relief counsel of this a bad check, jurisdictions HEREBY ORDERED that The Clerk Fourth, each in the other and as a group. facts crime and we hold that and Eighth to all in the of acts or Stilson's is DENIED. is directed of record ant 1 Eiqhth _ Judicial to mail a copy of this and to the Clerks District of Court Courts DATED this Justices 9 opinion for and order the First, Justice W. William I would double grant jeopardy Bad Check, a Felony this limited the grounds No. ADC-91-56. 1385, Leaphart, in Court held to "those time of accepting sentenced Court had before with it is against jurisdictional claims plea U.S. 563. the plea the Pre-Sentence the regard to me that Stilson's convictions that, a person the power to bring contest Court same day Judicial Investigation Stilson not that District Report conviction it (PSI) in Missoula The Missoula County PSI was convicted in Lewis & to the same check writing scheme. Thus, when the District Court plea of guilty to determine placing that States District Eighth scheme. the fact United does Judicial on at the of the indictment State Eighth narrowly could determine at 36 (citing The same day, are Cause the indictment from the face previous County with clear court the power to bring to Stilson's the two prior court the regard references accepted 31, 873 P.2d the same check writing County for in turn it a 265 Mont. guilty On that of Issuing Court, that Judicial on District that Stilson's him. prepared Clark 488 relief to the conviction Haqan, 265 Mont. assertion Mr. Post-Conviction v. Hagan (1994), the guilty (1989), Petitioner's regard the Eighth lacked or from the record." accepted with for cases in which the district the government Brace Petition Under State that V. dissenting Eighth on June 14, 1991, the "record" was both available due to the twice the charges Judicial constitutional in jeopardy, at issue. 10 and sufficient for of the prohibitions the government lacked As to whether be broken charges into separate state-wide county, charges I note to that defendant with Issuing The Information which was issued in Cascade County. One cannot is necessary tell the in checks written It is axiomatic to constitute in Lewis & Clark Judgment does, convicted for however, writing Accordingly, of bad checks wherein and that it the defendant did not that that more than the other the The Cascade County the defendant was the Cascade County charge upon checks been put issued from other in Cascade counties in jeopardy. Justice Terry N. Trieweiler and Justice William in the foregoing dissent of Justice W. William Justices 11 for in and Helena. encompass checks had already a to one check whether that in Missoula conclude CDC a "common scheme." Counties. the fact "common scheme" was based solely County join reference that a Felony, the "common scheme" were written and Missoula I cannot county in Cascade County or were the same checks which were the basis charges can Information then makes reference in order to constitute each a Bad Check, from the face of the Information checks necessary conduct which the Cascade County common scheme. one check check writing "common schemestt a common scheme limited particular 91-096, defendant's E. Hunt, Leaphart. Sr., CERTIFICATEOF SERVICE I herebycertify that the following certified order was sent by United Statesmail, prepaid,to the following named: Jeffrey T. Rena,Director Jonath: Kudrna, LegalIntern m MontanaDefenderProject Universityof MontanaSchoolof Law Missoula,MT 59812 Hon. JosephP. Mazurek, A.G. CreggCoughlin,Assistant JusticeBldg. Helena,MT 59620 RobertDeschamps, III Count) Attorney f Missot County Courthouse da Missoula,MT 59802 Brant Light CountyAttorney 1214th StreetNorth GreatFalls, MT 59401 Mike McGrath L & C CountyAttorney 228 Broadway,Courthouse Helena,MT 59624 DennisPaxinos Yellowstone CountyAttorney P.O. Box 35025 Billings, MT 59107 ED SMITH Cl LERK OF THE SUPREME STATE OF MONTANA BY: Dep COURT
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