                                           No. 05-500

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 86N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

CINDY RENEA BJORK,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. ADC 2003-021,
                     Honorable Thomas McKittrick, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Steven M. Hudspeth, Attorney at Law, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana

                     Brant Light, Cascade County Attorney, Steve Bolstad, Deputy County
                     Attorney, Great Falls, Montana


                                                        Submitted on Briefs: January 24, 2007

                                                                    Decided: March 27, 2007

Filed:

                     __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Cindy Renea Bjork (Bjork) appeals from the order of the Eighth Judicial District

Court, Cascade County, denying her motion to dismiss Count I of the amended

information. We affirm.

¶3     On January 13, 2003, the State filed an information charging Bjork with Count I:

theft of property by embezzlement, a felony, in violation of §§ 45-6-301(7)(a) and 45-6-

301(9), MCA (2001). The charge arose from incidents occurring in Great Falls,

Montana, on or between October 2000 and September 2002.

¶4      The State thereafter filed an amended information, charging Bjork with two

offenses: Count I: theft, a felony, in violation of §§ 45-6-301(1)(a) and 45-6-301(8),

MCA (1999), alleging that Bjork purposely or knowingly obtained or exerted

unauthorized control over property belonging to another by common scheme between

October 1, 1998, to November 31, 2001; and Count II: theft of property by

embezzlement, a felony, in violation of §§ 45-6-301(7)(a) and 45-6-301(9), MCA (2001),

allegedly obtaining or exerting unauthorized control over property of the person’s

employer or over property entrusted to the person, occurring between October 1, 2001,

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and September 30, 2002. On September 12, 2003, the State again filed an amended

information, revising dates in Count I to the period between October 1, 2000, and

September 30, 2001.

¶5    Bjork filed a motion to dismiss both charges for violating her double jeopardy

protections under Article II, Section 25, of the Montana Constitution. Bjork asserted that

the charges included five fraudulent checks written by her from August 12, 2002, to

August 18, 2002, which were the basis of a misdemeanor theft charge previously filed

against her in Cascade County Justice Court, to which she had earlier pled guilty.

¶6    The District Court agreed with Bjork that Count II of the amended information

violated Bjork’s double jeopardy rights and dismissed that count. However, the court

also concluded with regard to Count I—as amended to cover the time period from

October 1, 2000, to September 30, 2001—that there was no double jeopardy violation.

The court held that “[t]he charged time frame and evidence [did] not overlap with the

time frame and evidence upon which Defendant’s misdemeanor convictions were based.

Accordingly, there [was] no double jeopardy violation as to Count I.”

¶7    Bjork argues that the charge under Count I violated her double jeopardy rights

because she had previously been convicted in Cascade County Justice Court for five

misdemeanor theft charges that were a part of the same scheme as charged for under

Count I. Bjork insists that there was only one common scheme that began on October 1,

2000, and ended on September 30, 2002, and not two separate common schemes, one

ending on September 30, 2001, and the other beginning on October 1, 2001, as alleged by

the State. Therefore, Bjork contends Count I should also have been dismissed.

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¶8     “A district court’s decision to deny a defendant’s motion to dismiss a charge on

the basis of double jeopardy presents a question of law that this Court reviews for

correctness.” State v. Wardell, 2005 MT 252, ¶ 11, 329 Mont. 9, ¶ 11, 122 P.3d 443, ¶ 11

(citing State v. Beavers, 1999 MT 260, ¶ 21, 296 Mont. 340, ¶ 21, 987 P.2d 371, ¶ 21).

¶9     The double jeopardy protections of the Fifth Amendment to the United States

Constitution and Article II, Section 25 of the Montana Constitution, prohibit imposition

of multiple punishments in a single prosecution for the same offense and multiple

prosecutions for offenses arising out of the same transaction. See State v. Palmer, 207

Mont. 152, 158, 673 P.2d 1234, 1237 (1983). We cannot conclude that these provisions

require Bjork’s multifarious activities over a series of two years to be deemed the “same

transaction.” The State was not prohibited from charging Bjork under a theory of

separate offenses occurring during different time periods. See State v. Savaria, 284

Mont. 216, 224, 945 P.2d 24, 29 (1997) (“When the facts support a possible charge of

more than one crime, the crime to be charged is a matter of prosecutorial discretion.”)

Here, the State did not charge Bjork for any incidents under Count I that were previously

charged for in the misdemeanor proceeding.

¶10    It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section I.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, and the legal issues are clearly controlled by settled Montana law which the

District Court correctly interpreted.

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¶11   We affirm the judgment of the District Court.


                                                      /S/ JIM RICE


We Concur:


/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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