                            No.    93-572

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


STATE OF MONTANA, ex rel.
JOHN C. TORRES,
          Petitioner,


MONTANA EIGHTH JUDICIAL DISTRICT
COURT, CASCADE COUNTY, and THE
HONORABLE JOHN M. McCARVEL,
Presiding Judge,
          Respondent.




APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Stephen E. Hagerman       &   Marvin Anderson, Great Falls,
               Montana
          For Respondent:
               Michael Fanning, Deputy Cascade County Attorney,
               Great Falls, Montana


                     Original Proceeding Submitted:           May 26, 1994
                                                   Decided:   3uly 6, 1994
Filed:
~usticeJames C. Nelson delivered the Opinion of the Court.
                            BACKGROUND
    This is an original proceeding. On February 9, 1993, John C.
Torres, a/k/a John C. Hess, (Torres or the defendant) was charged
by information in the Eighth Judicial District Court, Cascade
County, with   one count of Negligent Homicide, a       felony, in
violation of    45-5-104(1), MCA, (1991), alleged to have beer
committed on or about June 20, 1992.   On February 23, 1993, Torres
entered his plea of not guilty and, by counsel, filed his Motion to
Dismiss With Prejudice and a supporting brief. The grounds for his
motion are not pertinent to our decision here.    On March 5, 1993,
the State filed its brief in answer to Torres' motion, and after
arguments on March 25, 1993, the District Court orally denied
Torres' motion, and filed its written order to that effect on April
2, 1993.
     Torres, subsequently, on August 30, 1993, filed various other
pretrial motions with a supporting memorandum.     Included in his
motions were five additional motions to dismiss based on alleged
violations of the year and day rule, destruction of evidence,
violation of equal protection and due process, double jeopardy and
the interests of justice. Again, for purposes of this opinion, we
are not concerned with the underlying merits of Torrest motions.
On September 8, 1993, Torres filed additional pretrial motions,
including another motion to dismiss alleging outrageous government
conduct on the part of the prosecution. The State did not file any
                                                                   I
written response to Torrest pretrial motions filed August 30, 1993,
or September 8, 1993, until November 16, 1993, when it responded in
writing to the motions filed September 8, 1993.
    The record indicates that a hearing on Torres' motions was
held on September 9, 1993, and that the District Court dismissed
defendant's motion to suppress and took his other motions under
advisement.
     On September 10, 1993, the District Court entered its written
order setting forth various facts underlying the Negligent Homicide
charge and the procedural history of not only that charge, but of
a related charge of DUI to which Torres had entered a plea of
guilty in Justice Court and on which he had been sentenced to and
had served jail time, all prior to the filing of the Negligent
Homicide charge.   The District Court concluded that Torres' state
and federal constitutional rights to due process and fundamental
fairness had been violated (1) by the State filing the Negligent
Homicide charge; (2) because of outrageous government conduct (the
court concluded that the prosecution had directed one of its
potential witnesses, a highway patrolman, to cancel an appointmenc
with defense counsel and to not talk with the defense without the
prosecutor being present); (3) because the State failed to give
adequate notice of its intention to introduce hospital medical
records of the defendant's blood alcohol level (his blood sample
submitted to the State Crime Lab had been compromised) ; (4) because
the court found "serious questions" about the cause of death of the
victim due to evidence being destroyed; (5) because of the late
filing of the State's "Just" notice; and (6) under 5 46-13-401,
MCA, in furtherance of justice.
     Following its "Judicial Conclusions" the District Court
entered the following order: "Based upon the foregoing Conclusions,
it is hereby ordered that this case is dismissed with preiudice."
(Emphasis added)   .
     On September 16, 1993, the State filed its Motion                to
Reconsider and Memorandum in Support alleging factual and legal
errors in the District Courtls September 10, 1993, order of
dismissal. The prosecution, concluding that the court's order was
based on findings of fact for which there was no evidence and that
the court was led into error by assertions of the defense,
requested that the District Court   ll...     vacate its ruling and order
a rehearing on the defendant's motions."
     On September 20, 1993, the State filed its Motion               for
Expedited Hearing on its Motion to Reconsider, and on September 21,
1993, the District Court entered its Order Setting Hearing.           In
that order, the court set an omnibus hearing and, without any
explanation, rescinded its previous order of September 10, 1993,
dismissing the case with prejudice.
     On November       17, 1993, Torres       filed in this Court his
Application for Writ of Supervisory Control or Other Appropriate
Writ and Supporting Memorandum alleging that the District Court war
without jurisdiction to rescind its order of dismissal with
prejudice and that he should not have to stand trial.         On January
20, 1994, after ordering and reviewing a response from the State,
we assumed jurisdiction and ordered the parties to submit briefs on
the following issue:
     Whether or not the District Court has the jurisdiction to
     rescind its order dismissing the information with
     prejudice and thereby reinstating the charge.
     This case, having been deemed submitted on the parties'
briefs, is now ready for decision.          Upon completion of our review
we hold that the District Court was without jurisdiction to rescind
its     order      dismissing   the    information    with   prejudice     and,
accordingly, we issue a writ of supervisory control and remand this
case to the District Court with instructions that it enter an order
vacating its September 21,             1993, order and       reinstating    its
September 10, 1993, order dismissingthe information against Torres
with prejudice.
                                  DISCUSSION
                                        I.
      At the outset, we note that in its brief the Cascade County
Attorney's office changed the statement of the issue that we
ordered briefed and, in addition to addressing Torrest legal
arguments, included in its briefs a lengthy recitation of alleged
facts not pertinent to the legal question at issue, along with
arguments not relevant to that legal question. We admonish counsel
that such tactics simply waste the time of this Court and opposing
counsel, add nothing to the merits and presentation of one's case,
delay our decision and may result in rejection of the offending
brief.
                                        11.
        It    is    necessary   that    we     also   briefly   address     the
appropriateness of our exercise of supervisory control in this
case.        The exercise of supervisory control by this Court is
authorized by Article VII, Section 2 (2) of the Montana Constitutior,
and by Rule l7(a), M.R.App.P.                 Supervisory control, being an
extraordinary remedy, we are extremely reluctant to entertain such
proceedings, especially where our acceptance of jurisdiction will
interfere with the trial of the underlying case on the merits and
where the defendant has an adequate remedy of appeal.               State ex
rel. O'Sullivan v. District Court (1946), 119 Mont. 429, 431-432,
175 P.2d 763, 764.
    We have also held, however, that supervisory control is
appropriate where the district court is proceeding under a mistake
of law and, in so doing, is causing a gross injustice, State ex
rel. Forsyth v. District Court (l985), 216 Mont. 480, 484, 701 P.2d
1346, 1348; State ex rel. Fitzgerald v. District Court (1985), 217
Mont.    106, 114, 703 P.2d 148, 153-154, and where, as here,
requiring the defendant to stand trial would result in unnecessary
                                                                   1
expenditures of time and resources.      State ex rel. Fletcher v.
District Court (1993), 260 Mont. 410, 414, 859 P.2d 992, 994; State
ex rel. First Bank System v. District court (1989), 240 Mont. 77,
84, 782 P.2d 1260, 1264.
        It is fundamentally unfair and prejudicial, not to mention a
waste of the taxpayers' money and the limited time and resources of
the court and counsel, to force a defendant in a criminal case to
stand trial when the court does not have jurisdiction to hear the
case.
        Having concluded that, once it dismissed the information
against the defendant with prejudice, the District Court here was
without jurisdiction to reinstate the information.    We therefore,
also conclude, that it is appropriate that we assume jurisdiction
of this case and exercise original jurisdiction under a writ of
supervisory control in order to forestall a needless and expensive
trial.
                                 111.
        Citing State v. Porter (l964), 143 Mont. 528, 391 P.2d 704,
and other prior and more recent cases in accord, Torres argues that
the District Court lost jurisdiction to reinstate the information
in this case because of the doctrine that once a valid sentence has
been pronounced, the court loses jurisdiction to vacate or modify
the sentence, except as otherwise provided by statute. Torres also
argues that our decision in State v. Onstad (1988), 234 Mont. 487,
764 P.2d 473, is dispositive.

     The State argues that Onstad was wrongly decided since it
applied the case law on final judgments to "simple orders.I1
Further, the State maintains that Onstad      is no longer valid
authority because the statutory language upon which our decision
was based has been subsequently modified by the legislature.
     We believe that the rationale expressed in Onstad is still
valid, and, accordingly, it is necessary that we address our
decision in that case.
     In Onstad, an information was filed charging the defendant
with various felonies.   The defense filed a motion to dismiss foz
lack of jurisdiction along with a supporting brief based on the
defendant being a member of an Indian tribe.     While counsel had
informally agreed that the State would have additional time in
which to file its brief, the court was not made aware of that fact,
and, in due course, no answer brief being submitted, the district
court dismissed the information and charges. Our opinion does not
indicate whether the dismissal was with or without prejudice.
Through oversight, the court's order was not served on counsel,
but, subsequently, the county attorney learned of the order ani
filed his memorandum addressing the jurisdictional issue and a
motion to set aside the court's order of dismissal.   The time for
appealing the order of dismissal having expired, the court held   is
hearing,   granted   the   State's   motion   and   entered   an   order
reinstating the information.         The defendant was then tried,
convicted and sentenced.    Onstad, 764 P.2d at 474.
     On appeal, we addressed the jurisdiction of the district court
to reinstate the information after having dismissed it.            There
being no responsive brief from the State on file as required by
Rule I1 of the Uniform District Court Rules then in effect at the
time the court entered its order of dismissal, we concluded that
the district court properly dismissed the information on the
grounds raised by the defendant, and w e held that, upon filing the
order dismissing the information, that order became final and was
appealable.     Onstad, 764 P.2d at 475, citing, State v. Enfinger
(1986), 222 Mont. 438, 722 P.2d 2170; State v. Wirtala (1988), 231
Mont. 264, 752 P.2d 177; and State v. Spencer (1916), 37 S.D. 219,
157 N.W. 662.

     As pointed out by the State, we did not distinguish in Onstad,
between an order of dismissal and a judgment, and we cited cases in
which a judgment had been entered. Under            46-1-202 (11), MCA,
(1991), and 46-1-202 (lo), MCA, (1993), a judgment is:

     ...an adjudication by a court that the defendant is
     guilty or not guilty, and if the adjudication is that the
     defendant is guilty, it includes the sentence pronounced
     by the court.
     The order of dismissal in the instant case (and in Onstad) is
not the same thing as a lljudgmentql defined by our code of
                                   as
criminal procedure since the order did not adjudicate guilt.
Accordingly, to equate a judgment in a criminal case with an order
which does not adjudicate guilt, is not technically correct.         For
purposes of resolving the issue raised in this case, however, that
distinction is more of academic interest than of substantive
import.
       What is critical here is that the District Court dismissed
the information against Torres "with prejudice."       The technical
distinction between such an order of dismissal and a judgment
aside, we have held that:
       The term "with prejudice" as used in a judgment of
       dismissal has a well-recognized legal import. It is the
       converse of the term "without prejudice,It and a judgment
       or decree of dismissal with prejudice is as conclusive of
       the rights of the parties as if the suit had been
       prosecuted to a final adjudication adverse to the
       plaintiff. (Citation omitted.)
       The terms "with prejudice" and "without prejudice" have
       been recognized as having reference to, and being
       determinative of, the right to bring a future action.
       (Citation omitted.)
Schuster v. Northern Co. (1953), 127 Mont. 39, 45, 257 P.2d 249,


       Accordingly, an order of dismissal "with prejudice" in a
criminal case, while not technically a judgment as that term is
defined in our code of criminal procedure, nevertheless, acts as   F:


final adjudication of the case and is as conclusive of the rights
of the parties as is a final judgment.      Hence, our statement in
Onstad that "[ulpon the filing of the order dismissing the
information the order became a final judgment and was appealable,"
remains, for all intents and purposes, a correct statement of the
law.
       Moreover, in Onstad we concluded that 5      46-13-106, MCA,
(1985), implied that the dismissed information is no longer
effective against the defendant though the court may retain custody
over the defendant pending the filing of a new information; that
the statute did not provide for reinstatement of the dismissed
information; and that, since a valid information did not exist
under which the defendant could be tried, his subsequent trial,
conviction and         sentence under the reinstated information is
invalid.     Onstad, 762 P.2d at 475.                                     t




      section 46-13-106, MCA,            (l985), referred to    in OnstnS.
provided that:
      E f f e c t of order of dismissal.
                                      If the court directs the
      action to be dismissed, the defendant must, if in
      custody, be discharged therefrom or, if admitted to bail,
      have his bail exonerated or money deposited instead of
      bail refunded to him. However, if the court grants a
      motion to dismiss based on a defect in the institution of
      the prosecution or in the indictment, information, or
      complaint or if it appears at any time before judgment
      that a mistake has been made in charging the proper
      offense, the court may also order that the defendant be
      held in custody or that his bail be continued for a
      specified time pending the filing of a new complaint,
      indictment, or information.
      That section has since been amended, is now renumbered 5          46-

13-402, MCA, in both the 1991 and 1993 codes and provides that:

                 order to dismiss. If the court directs the
      E f f e c t of
      action to be dismissed, the defendant must, if in
      custody, be discharged and, if admitted to bail, have
      bail exonerated or money deposited instead of bail
      refunded to the defendant.
Importantly, the first sentences of each statute are virtually
identical, and we conclude that, based upon that language, our
reasoning in Onstad remains correct. The dismissed information is
no longer effective against the defendant, and the statute does not
provide for reinstatement of the dismissed information.             Onstad,.


       Furthermore, as we pointed out in Onstad, while a district
court may correct clerical errors to make the record speak the
truth of what was actually decided, the court may not change w h a t
was o r i g i n a l l y intended.   Citing State v. Owens (1988), 230 Mont.
135, 138, 748 P.2d 473, 474. "The reinstatement of the information
was a reversal of the court's decision on the motion to dismiss and
is not permissible." Onstad, 764 P.2d at 475. The same is true in
the instant case.
     Under     46-2O-l03(2) (a), MCA, the State can appeal the
dismissal of a case.   Here, on the District Court's dismissal of
the information with prejudice on motion of the defendant, the
appropriate remedy for the State was to appeal, not to request
reconsideration of the court's order.   Onstad, 764 P.2d at 475.
     We hold that, having dismissed the information against Torres
"with prejudice," the District Court was without jurisdiction to
rescind its order of dismissal and to reinstate the information.
Accordingly, we remand this case to the District Court for entry of
an order vacating its September 21, 1993, order and for entry of an
order reinstating its September 10, 1993, order dismissing with
prejudice the information filed against Torres.
     REMANDED FOR FURTHER PROCEEDINGS CONSISTENT    H THIS OPINION.
                                           July 6, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Stephen E. Hagerman & Marvin Anderson
Attorneys at Law
600 Central Plaza, Suite 316
Great Falls. MT 59401

Michael Fanning
Deputy County Attorney
Cascade County Courthouse
Great Falls, MT 59401

Hon. Joseph P. Mazurek
Attorney General
Justice Building
Helena. MT 59620

Hon. John M. McCarvel
Cascade County Courthouse
Great Falls, MT 59401


                                                                                 ED SMITH
                                                                                 CLERKOFTHE
                                                    SUPREME COURT
                                                                                   STATE       OF
                                                    MONTANA
