                            No.    93-476
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


STATE OF MONTANA,
         Plaintiff and Appellant,
    v.
JEFFREY WALDRUP,
         Defendant and Respondent.




APPEAL FROM:   District Court of the Twentieth Judicial District,
               In and for the County of Lake,
               The Honorable C. B. McNeil, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Hon. Joseph Mazurek, Attorney General,
               Barbara C. Harris, Assistant Attorney General,
               Helena, Montana
               Larry J. Nistler, Lake County Attorney,
               Mitchell A. Young, Assistant Lake County
               Attorney, Polson, Montana
          For Respondent:
               Deborah Kim Christopher, French, Mercer
               & Grainey, Polson, Montana



                            Submitted on Briefs:    February 10, 1994
                                         Decided:   April 11, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

     The State of Montana (State) appeals an order of the Twentieth
Judicial District Court, Lake County, dismissing the Information
filed     against   the      defendant/respondent,   Jeffrey   Waldrup,
(defendant) charging him with four counts of indecent exposure, a
felony pursuant to 5 45-5-504, MCA.       The District Court dismissed
the Information on the basis that 5 46-11-503, MCA, is an absolute
bar to prosecution of the offenses charged in the Information. We
hold that       46-11-503,    MCA, does not bar prosecution of the
defendant for the four counts of indecent exposure charged in the
Information. We therefore, reverse and remand for reinstatement of
the charges and further proceedings.
     One issue raised by the parties is dispositive in this case:
Did the District Court err in granting defendant's motion to
dismiss by applying 5 46-11-503, MCA, to the offenses charged in
the Information, when those charges were separate transactions from
the previous convictions?
        On March 31, 1993, the Polson City Police Department charged
the defendant with three counts of indecent exposure for incidents
occurring March 20, 22, and 31, 1993.        The defendant appeared in
Polson City Court on April 1, 1993, where the city judge advised
the defendant of his rights and the defendant waived those rights.
Upon investigating one of the charges at this appearance, the city
judge dismissed that charge, and the defendant pled guilty to the
remaining two counts of indecent exposure.           The defendant was
sentenced on April 7, 1993, on the two misdemeanor charges to which

                                     2
he had pled.
      After defendant had been charged with the above mentioned
three counts of      indecent exposure, the police     continued   to
investigate previous reports of a man exposing himself.            The
defendant was a suspect. In pursuing the investigation, the police
contacted prior alleged victims to determine if they could identify
the defendant as the perpetrator.       Four victims were able to
identify the defendant as the perpetrator from a photographic
1ineup   .   As a result of these identifications, the Lake County
Attorney's Office filed an Information on April 16, 1993, charging
the defendant with four counts of indecent exposure in violation of
5   45-5-504, MCA.     The   incidents charged   in the Information
allegedly occurred on September 23, 1992, October 15, 1992, March
22,   1993 and   in September 1992, and involved four different
victims.
      According to the terms of 5 45-5-504(2)(c), MCA, upon a third
or subsequent conviction of indecent exposure, a defendant's
punishment can be enhanced to a felony. Because the defendant had
been convicted of two counts of indecent exposure by pleading
guilty to the two charges in City Court, he now faces felony
charges for the four counts charged in the Information.
      The defendant moved to dismiss the charges on the grounds that
prosecution was barred under g 46-11-503, MCA, for reasons of
fundamental fairness, and because the prosecution violated various
constitutional provisions.    After considering the parties' briefs
and oral arguments, the District Court granted the defendant's
m o t i o n t o d i s m i s s by o r d e r d a t e d J u l y 8 , 1 9 9 3 .         The S t a t e a p p e a l s

from t h a t d i s m i s s a l .

        The D i s t r i c t C o u r t b a s e d i t s o r d e r o f d i s m i s s a l . on 5 46-11-

503,     MCA,      holding         that      the     statute        was     absolute          bar      to   the

prosecution           of    the       offenses       charged        in     the     I n £o r m a t i o n .     In

a p p l y i n g 5 46-11-503,          MCA t o t h e f a c t s , t h e D i s t r i c t C o u r t r e a s o n e d

that:     (1) a l l of t h e f a c t s c o n s t i t u t i n g t h e o f f e n s e s charged i n t h e

Information were c o n t a i n e d i n t h e Polson C i t y P o l i c e f i l e s and w e r e

t h e r e f o r e known, o r s h o u l d h a v e b e e n known t o t h e p r o s a c u t o r a t t h e

ti.me t h e s u b s e q u e n t o f f e n s e s w e r e p r o s e c u t e d t o c o n v i c t i o n i n t h e

Polson C i t y P o l i c e Court;            ( 2 ) t h e p r o b a b l e c a u s e w h i c h was f o u n d t o

e x i s t a t t h e t i n e t h e I n f o r m a t i o n was f i l e d e x i s t e d o n t h e d a t e t h e

di:Eeildant      was s e n t e n c e d i n C i t y C o ~ l r; ( 3 ) t h e i n c i d e n t s , ~ v h i c h
                                                            t

w e r e t h e h a s i s c ~ f t t ~ eo f f e f i s e s c h a r g e d     i n t h e I n f o r m a f i o n were

consumiilatec!       prior      t d    the i i l c i d c n - t s which w e r e t h e hsi.:; of t h e

d e f e n d a n t ' s C i t y C o u r t c o n v i c t i o n s ; a n d ( 4 ) t h e P o l s o n Cik.y C o u r t

con.+ict.ions of            defendant         had     not     been       set aside,           reverszd        or

vacz.ted.

        The     Di.strict Court d i d               not     address whether               the      incidents

::harcjed    i n t h c I n f o r m a t i o n w e r e p a r k o f t h e same t r a n s a c . t i : a n a s t h e

convjc t e d o f f e n s e s .        However,        o n e week a f t e r t h e L'istrj c t C o u r t

i s s u e d i t s o r d e r o f d i s m i s s a l in t h i s c a s e , w e r 7 ~ l e d i n S t a t e v .

E e r g e r ( l 9 9 3 ) , 259 Mont. 3 6 4 , 856 P . 2 ~ 15 5 2 ,            t h a t 9 46-11-503, MCA,

a p p l i e d c n l y t c cases i n v o l v i n g t h e sane t r a n s a c t i o n s .           Nsc h a v i n g
t h e h e n e f j . t o f t h e B e r q e r d e c i s i o n , t h e Dj s t r i c t C c u r t e r r o n e o u s l y

a p p l i e d 5 46-11-50:,            MCA,    t o b a r t h e s u b s e q u e n t f e l o n y c h a r g e s on
the basis of double jeopardy.
     In Berqer, we ruled that the 1991 amendments to 1 46-11-503,
MCA, did not eliminate the llsame
                                transaction" requirement from what
is now subsection (l)(b) and did not expand the protection of the
statute to unrelated offenses.      Berqer, 856 P.2d at 553.        The
defendant in Berqer, sold dangerous drugs to an informant.          The
next day, officers executing a search warrant found marijuana in
the defendant's    house, and    charged   him   with   two   counts of
possession of dangerous drugs.    The defendant pled guilty to the
possession charges in justice court.         Three months later an
Information charging Berger with sale of dangerous drugs was filed
in District Court.
     Berger appealed the charge, alleging that the 1991 amendments
to 5 46-11-503, MCA, eliminated the same transaction requirement
from 5 46-11-503(1) (b), MCA, and expanded the protection of the
statute to unrelated offenses.    However, this Court ruled that g
46-11-503, MCA, did not bar prosecution of the defendant for sale
of dangerous drugs.     "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."    Berqer, 856 P.2d at 554.
     In the instant case, the defendant has been charged with four
separate counts of indecent exposure.      The incidents are not part
of the same transaction, as they allegedly occurred on four
different dates and involve four different victims.            The term
"same transactionw is defined at 5 46-1-202 (23), MCA (1991), as
follows:
      "Same transactionH means conduct consisting of a series
      of acts or omissions that are motivated by:

      (a) a purpose to accomplish a criminal objective and that
      are necessary or incidental to the accomplishment of that
      objective; or
      (b) a common purpose or plan that results in the repeated
      commission of the same offense or effect upon the same
      person or the property of the same person.
The defendant allegedly exposed himself to different victims on
different dates in each of the charged incidents.         Therefore, the
incidents cannot be part of a plan resulting in the repeated
commission of the same offense against the same person.
      Because 5 46-11-503, MCA, applies only to prosecutions arising
from the same transaction, this statute does not bar prosecution of
the four counts of indecent exposure.        Therefore, we reverse the
District Court's   decision, and remand for reinstatement of the
charges and further proceedings.
      Defendant raised other arguments on appeal.         Inasmuch as the
District Court did not address those other arguments and inasmuch
as the defendant has not been convicted of or sentenced on any of
the   four   charges   at   issue   here,   defendant's   arguments   are
premature.   We decline to address t
      Reversed and remanded.


We Concur:
          Justices




Chief Justice J. A. Turnage did not participate.
Justice Terry N. Trieweiler dissenting.
          I dissent from the majority opinion.
          In its opinion, the majority observes that the District Court
did not have the benefit of the decision in Statev. Berger (1993), 259

Mont. 364, 856 P.2d 552, and therefore, misapplied 5 46-11-503,
MCA   .     However, the District Court applied 5 46-11-503, MCA,
correctly. It is the majority who misapplied that section in Berger

by adding language to the statute which the Legislature did not
include simply because the majority thinks it ought to be there.
          The majority erroneously concludes that when, in 1991, the
Legislature       removed   the   Issame transaction"   language      from
5 46-11-503, MCA, it did not mean to do so, and therefore, the
majority, in its wisdom, has restored that language to the statute.
In doing so, the majority has, in the Berger decision, and again in

this case, greatly exceeded its judicial authority.         It is Berger

which should be reversed--not the District Court.
          The relevant portion of 5 46-11-503, MCA, is plain and clear
on its face.       It provides that:
          (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 lie 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....
          As pointed out in my dissent to Berger, the majority held

otherwise by inserting into 5 46-11-503(I), MCA, the requirement
that the offenses be part of the "same transaction." In doing so,
the   majority         violated     a    cardinal    principle       of    statutory
construction.         Section 1-2-101, MCA, provides as follows:
      In the construction of a statute, the office of the judge
      is simply to ascertain and declare what is in terms or in
      substance contained therein, not to insert what has been
      omitted or to omit what has been inserted.
      While once again ignoring the plain language of the statute,
the majority has based its decision on its contention that the
Legislature did not mean to say what it clearly did say when it
amended   §       46-11-503, MCA.       Therefore, the majority ignores the
plain language of that section in favor of what it concludes was
the Legislature's intent. However, in doing so, the majority has
violated a second rule of construction which we have previously
articulated in our decisions.
      In White v. White (1981), 195 Mont. 470, 473-74, 636 p.2d 844,

845-46, we held that:
      The intention of the legislature must first be determined
      from the plain meaning of the words used, and if
      interpretation of the statute can be so determined, the
      courts may not go further and apply any other means of
      interpretation. Haker v. Southwestern Railway Co. ( 1978), 176
              .
      Mont 364, 578 P.2d 724; Montana Assn. of Undewriters v. State of
      Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the
      language of a statute is plain, unambiguous, direct and
      certain there is nothing left for the court to construe.
      DouNv. Wohlschlager (1963), 141 Mont. 354, 377 P.2d 758:
      National Electric ContractorsAssn. v. State Board of Education ( 1960), 137
              .
      Mont 382, 352 P. 2d 258; Vaughn & Ragsdale Co. v. State Board of
      Equalization (1939), 109 Mont. 52, 96 P.2d 420.                         The
      function of the Court in construing a statute is simply
      to ascertain and declare what is in terms or in substance
      contained therein, not to insert what has been omitted or
      omit what has been inserted. Section 1-2-101, MCA. In
      short, it is simply the duty of the Supreme Court to
     construe the law as it finds it. Dunphy v. Anaconda Co.
     (1968), 151 Mont. 76, 438 P.2d 660, and cases cited
     therein.
     In State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331,

1333, we held that I1[t]here is simply no reason for the use of
legislative history to construe a statute where the language is
clear and unambiguous on its face."
     Even more recently, in Dom v Board of Thustees of Billings School District
                                .
(1983), 203 Mont. 136, 144, 661 P.2d 426, 430, we held that:
     The primary tool for ascertaining intent is the plain
     meaning of the words used. The Court properly refers to
     legislative history only when intent cannot be determined
     from the content of the statute. The instant statute
     does not necessitate such an inquiry.
     In this case, defendant was charged on March 31, 1993, with
three counts of indecent exposure which were alleged to have
occurred on the dates of March 20, 22, and 31, 1993.             However, on
the date that he was charged with these three offenses, the Chief
of Police had already received complaints regarding the four
offenses with which defendant was subsequently charged on April 16,
1993. An investigation had been conducted; defendant's description
had been given; and the Chief of Police admitted that based on the
information in the Police Department's investigative files, and
defendant's responses to questioning, he strongly suspected that
defendant had committed the previous offenses. The only additional
evidence that was obtained by the State prior to charging defendant
with the additional four offenses was the victims' positive
identification in response to a photographic lineup. However, even
this information was obtained by April 5, 1993, two days before
defendant was sentenced on the original three charges.              Therefore,
I conclude, as did the ~istrictCourt, that all of the necessary
elements were present for the application of 5 46-11-503, MCA:
       1.   All of the offenses which were charged on April 1 6 , 1993,
were known to the State when defendant was charged with three
separate offenses on March 31, 1993;
       2.   There was probable cause to file all charges against
defendant when the original three charges were filed, and at least
before defendant was sentenced for the two charges to which he pled
guilty;
       3.   All    of   the offenses which      are the subject of the
April 16, 1993, information were committed prior to the charges
which were filed on March 31; and
       4.   Because     a   third   offense    of    indecent   exposure     is
punishable as a felony, jurisdiction for all offenses, if filed
concurrently, would have been in the District Court.
       This case is a perfect example of the reason why 5 46-11-503,
MCA,   was enacted and should be applied as written.                   Section
45-5-504,   MCA,    provides that a      first conviction of          indecent
exposure    is    punishable   by   a   fine   not    to   exceed    $500   and
imprisonment for not more that six months.           A second conviction is
also punishable as a misdemeanor.       The fine shall not exceed $1000,
and the term of imprisonment shall not be more than one year.
However,    subsection      (c) provides that       a third conviction is
punishable by a fine of up to $10,000 and imprisonment for a period
of up to five years, or both.
     In this case, defendant was taken before the City Court
without an attorney.   It is true that his rights were explained to
him and that he waived his right to be represented.     However, the
only consequences of his waiver and plea that were ever explained
to him were the potential misdemeanor penalties.    Defendant pled
guilty to two counts of indecent exposure, not knowing that those
two convictions would be the predicate for felony charges based on
conduct already committed and reported, but not yet charged.     In
other words, whether it was by design or inadvertence on the
State's part, defendant was sandbagged.
     Nine days after his plea entry to two misdemeanor charges, the
State brought its motion for leave to file an information alleging
four incidents of indecent exposure, all of which occurred prior to
defendant's unrepresented guilty plea, and the consequences of
which could be a $40,000 fine and 20 years in prison.    As pointed
out, the unfairness of this whole process was recognized by the
District Court, when in response to the State's argument that
defendant waived his rights in the City Court, it pointed out that:
     THE COURT: But he didn't ask for an attorney when he was
     charged with two misdemeanors.     But because he pled
     guilty to the two misdemeanors, he's now looking at 20
     years in the Montana State Prison?
     MR. YOUNG:   But, your Honor, isn't that the same for
     anyone who comes into the Court and pleads guilty to a
     domestic abuse, and then later is charged with a third
     offense?
     THE COURT: If the third offense occurs later. But if he
     committed all three at the time he comes in and pleads
     guilty to two -- and your file is sitting there with all
     the information about the third one -- shouldn't you be
     required to charge him with all three at the same time so
     he knows what he is faced with? That's the Defendant's
     argument, is that the police file contained every bit of
     information that is now in this felony file. The only
     difference was that the Sergeant drove out with the photo
     I.D. after he had entered the guilty plea to two
     offenses, and those victims then identified this
     Defendant.
     The majority was wrong when in Berger it added language to a

statute in order to accomplish what the majority concluded was the
appropriate result.   This case clearly illustrates the error of,
and potential for unfairness from, the majority's decision.      The
majority should admit its mistake and affirm the order of the
District Court.
     For these reasons, I dissent from the majority opinion.




Justice William E. Hunt, Sr., joins in the foregoing dissent.



                                        Justice
                                         April 11, 1994

                                 CERTWICATE OF SERVICE

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