ROSEBUD COUNTY ATTORNEY

P.O. Box 69

FORSYTH, MT 59327

(406) 356-2236

Fax (406) 356-2238

e-mail-rosebud @ mcn.net

Lee R. Kerr Esq. ATTORNEY for

CITY OF FORSYTH

COUNTY ATTORNEY OFFICIAL OPINION #96 - 4

DATED: December 17, 1996

RE: Double Jeopardy

Cases arising out of the same “transaction” or set of facts that occur at approximately the same time, are charged with misdemeanor offenses in Justice Court, to which the defendants plead guilty prior to being charged with additional count or counts of felony offenses in District Court, may create substantial double jeopardy problems pursuant to 46-11-503 of the Montana Code Annotated.

To avoid any double jeopardy problems, law enforcement is cautioned to not cite by uniform complaint, any misdemeanor offense arising out of the same transaction or occurrence, to which there may be a possible felony charge. The charging of the misdemeanor, if plead guilty to, could jeopardize or bar a subsequent prosecution for the related felony. As examples, to charge misdemeanor possession of drugs in justice court, when there are felony drug related charges associated with the same transaction, may bar the subsequent prosecution for the felony if the defendant pleads guilty to the misdemeanor in justice court. Similarly, the charging of speeding or careless driving, or reckless driving, may bar charging criminal endangerment, negligent homicide, or felony possession of drugs, if those felonies arose out of the same transaction or occurrence, and the misdemeanors are charged and plead to prior to being charged in district court.

This is a gray area of the law, and as a caution to law enforcement, and as a training advisory for guidance, law enforcement should not issue any uniform complaints on any counts or charges that amount to a misdemeanor, when they believe they have a felony charge that relates to the same transaction or occurrence. If lawenforcement has probable cause to believe that a felony has been committed, then if appropriate or necessary, a warrantless arrest should be made and the defendant cited into justice court on a field citation complaint on the felony charge only. The investigative reports and other information pertinent to the investigation supporting any other misdemeanor charges should be promptly forwarded to the county attorney’s office for determination of charges. The misdemeanor counts, will be added to the criminal information to be filed in district court. A statement of probable cause must be provided to my office and to the justice court within 48 hours of the warrantless arrest. Further, within 48 hours of the arrest, the investigative reports and investigation file must be presented to the county attorney’s office so that an affidavit and charging documents can be prepared for district court.

If the investigative file and information are not promptly provided to my office so that sufficient information is presented for charging documents, then my office will be left with little recourse than to file a motion to dismiss without prejudice in justice court, pending completion of the law enforcement investigation, and submission of sufficient information to support charges in district court.

Cases which are truly a misdemeanor in nature and which implicate no analysis for felony charges, may be processed in the customary manner, with field citations to justice court, with either a warrantless arrest or notice to appear being issued in the appropriate case.

DATED this 17th day of December, 1996.

LEE R. KERR

Rosebud County Attorney

Attorney for the City of Forsyth