                               NO.    93-041
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1993

STATE OF MONTANA,
             Plaintiff and Appellant,
     -vs.-


GARY J. SCHNEIDERHAN,
                                                       OCT   19 1993
             Defendant and Respondent.




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


COUNSEL OF RECORD:
             For Appellant:
                  Hon. Joseph P Mazurek, Attorney      General, John
                  Paulson, Assistant, Helena, Montana; Patrick T,.
                                                                 -_
                  Paul, Cascade County Attorney, Michael L. Far.-.--
                                                                lni~ng,
                  Deputy, Great Falls, Montana
             For Respondent:
                  Susan L. Weber, Great Falls, Montana


                               Submitted on Briefs:          September 9, 1993
                                               Decided:      October 19, 1993
                                                      1 .,
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

     This is an appeal by the State of Montana (State) from an
order of the Eighth Judicial District Court,              Cascade    County,

dismissing a felony sexual assault charge against the defendant on
the basis of double jeopardy.                We reverse   and remand with
instructions.

     We restate the issues on appeal as follows:
     1.    Did the Justice Court err in denying the State's motion
to deny acceptance of a written guilty plea?

     2.    Did the Justice Court err in failing to rule on the

State's praecipe to dismiss prior to sentencing the defendant for

misdemeanor   domestic    abuse?

     3.    Was the Justice Court divested of jurisdiction upon the

filing of an information in District Court for a separate offense

arising out of the same transaction?

     4.    Did the District        Court err in holding that misdemeanor
domestic abuse is        a lesser included offense of felony sexual

assault?



     We decline to recite the alleged facts in this case, as we are

remanding for further proceedings.            However, we will discuss the

procedural history leading up to this appeal.
     Schneiderhan    was    initially       charged in Justice Court with

misdemeanor   domestic    abuse.    On September 16, 1991, Schneiderhan

made his initial appearance before the Justice Court.               Although
Schneiderhan indicated a desire to plead guilty, the Justice of the

                                        2
Peace advised him that he should consult with an attorney prior to

entering a plea.    Arraignment was then set for October 30, 1991.
     On October 24, 1991, Schneiderhan, through his counsel, filed

a written plea of guilty to the misdemeanor domestic abuse charge.

On October 28, 1991, the State filed an information in District
Court charging Schneiderhan with felony sexual assault.              That

charge arose from the same transaction as the domestic abuse

charge.    On that same day, the   Justice    Court   set   Schneiderhan's
sentencing on the domestic abuse charge for November 7, 1991.

     on November 5, 1991, the State filed a praecipe to dismiss the
domestic abuse charge on the basis that the State had filed a

felony charge in District Court.       At the same time, the State also

filed a motion to deny acceptance of the written guilty plea in the

Justice Court.     On November 7, 1991, the Justice Court held the

sentencing   hearing.   The State stipulated that the Justice of the

Peace could defer ruling on the motion to deny acceptance of the
written guilty plea until after the sentencing.        The State did not

stipulate to a deferral of ruling on the praecipe to dismiss,

however.

     The Justice of the Peace sentenced Schneiderhan to six months

in jail for domestic abuse, all suspended.       On December 11, 1991,

the Justice of the Peace issued an order denying the State's motion

to deny acceptance of the guilty plea.        A review of the Justice

Court file indicates that the Justice of the Peace never responded

to the State's praecipe to dismiss the domestic abuse charge.

     In the meantime, on November 5, 1991, Schneiderhan plead not


                                   3
guilty to the felony sexual assault charge in District Court. On
March 4, 1992, Schneiderhan filed a motion to dismiss the felony
charge for violation of double jeopardy.          Schneiderhan alleged that
misdemeanor domestic abuse is a lesser included offense of felony

sexual assault and that the conviction in Justice Court precluded

the   felony   action   in    District   court.   A hearing on the double

jeopardy issue was held on August 17, 1992, and on October 6, 1992,

the District Court issued its order dismissing the case, ruling

that misdemeanor domestic abuse was a lesser included offense of
felony sexual assault and that double jeopardy attached after the

November 7, 1991, sentencing in Justice Court.             From this order,

the State appeals.
      Although the State appealed from the District Court order,

that order is intricately intertwined with the actions of the

Justice    Court.   The District Court dismissed the felony sexual

assault charge on the basis of double jeopardy, which would not
have been an issue if the Justice Court had properly dismissed the

misdemeanor domestic abuse charge.           Therefore, because of the close

relationship between the Justice Court and District Court actions,

we necessarily must review this              case in its entirety.      This

requires a review of both the procedures leading to the Justice

Court domestic abuse conviction and the District Court's subsequent

dismissal of the felony sexual assault charge on double jeopardy

grounds.
                             I - WRITTEN GUILTY PLEA

      In the Justice Court action, the State filed a motion to deny


                                         4
the acceptance of the written guilty plea, for the reason that

Schneiderhan had not been arraigned as required by 5 46-12-201, MCA
(arraignment statute), which provides, in pertinent part:

        (1) Arraignment must be conducted in open court and must
        consist of reading the charge to the defendant or stating
        to the defendant the substance of the charge and calling
        on the defendant to plead to the charge. . . .

That statute then goes on to describe certain inquiries which the

court is required to make to determine the defendant's identity and

whether he or she is under any disability.           The   statute   provides

that the defendant's presence in court for arraignment may be
satisfied either by his or her physical presence or by means of a

two-way    electronic    audio-visual   communication,   provided,   however,
that subsection (5) permits the judge to order the physical

presence of the defendant in court at the arraignment.
        The last sentence of subsection (5) provides that, l'[i]n a

felony    case,      a judge may not accept a plea of guilty from a

defendant not physically present in the courtroom." Thus, reading

together the various subsections of 5 46-12-201, MCA, it is clear

that,     at   the   arraignment,   the judge must make certain actual

communications with the defendant and that, while a judge may

accept a guilty plea from the defendant to a misdemeanor while the

defendant is physically present in the courtroom or before the

court via a two-way electronic audio-visual communication, a guilty

plea in a felony case may be accepted only when the defendant is

physically present in court.

        Similarly, the State argued that the guilty plea itself was

defective, as the Justice of the Peace did not comply with § 46-17-

                                        5
203, MCA (justice court plea statute), which provides, in pertinent
part:

        Plea of guilty.   (1) Before or during trial, a plea of
        guilty may be accepted when: (a) the defendant enters a
        plea of guilty in open court: and (b) the court has
        informed the defendant of the consequences of his plea
        and of the maximum penalty provided by law which may be
        imposed upon acceptance of the plea. . . .

        Clearly, both the arraignment statute and the justice court

plea statute require the defendant to appear in open court (as that
concept is more fully developed in the arraignment statute): that

there be actual communication between the judge and the defendant:

that the judge first make the requisite inquiries of and provide
the mandated information to the defendant; and that the plea, then,

be accepted as a part of that actual communicative process.

        Importantly, there is no provision in either the arraignment

statute or the justice court plea statute that allows the judge to

accept a guilty plea from a defendant in either a misdemeanor or

felony case through the expedient of the defendant or his counsel
simply filing a written plea with the court, as was done in this

case.

        We take this opportunity to express our disapproval of the

practice of courts in Montana accepting written pleas in criminal

cases from defendants or their counsel in contravention of the code

of criminal procedure.    The procedural requirements for arraignment
and acceptance of pleas are clearly set forth in the statutes and

are not to be disregarded.    We admonish the courts and counsel not

following the referred-to statutes to, henceforth,   strictly   comply

with those statutory mandates.

                                   6
     We recognize, however, that the procedural safeguards which
underpin    the   statutory   requirements   discussed    above   are    for   the

benefit and protection of criminal defendants.             Section      46-l-103,

MCA, provides, in pertinent part:

     (3) Any irregularity in a proceeding specified by this
     title that does not affect the substantial rights of the
     accused must be disregarded.

Because Schneiderhan was at all times represented by counsel who,
herself,    was    involved   in the written plea,         and because his

substantive       rights   were   not   affected,   the     Justice       Court's
acceptance of the written guilty plea in this case will be allowed
to stand.

                           II - PRAECIPE TO DISMISS

     At the time the State filed its motion to deny acceptance of
the written guilty plea, it also filed a praecipe to dismiss the

misdemeanor domestic abuse charge, on the basis that the State was

prosecuting Schneiderhan on a more serious charge in District

Court.     The Justice of the Peace did not rule on the praecipe at

the time it was filed on November 5, 1991, but rather proceeded to

sentence Schneiderhan on November 7,            1991.     We hold that the

Justice of the Peace erred in not ruling on the praecipe to dismiss

prior to sentencing.
     Section 46-13-401, MCA, provides, in pertinent part:

     (1) The court may, either on its own motion or upon the
     application of     the  prosecuting    attorney  and   '
     furtherance of justice, order a complaint, infonnatioi:
     or indictment to be dismissed.    However, the court may
     not order a dismissal of a complaint, information, or
     indictment, charging a felony, unless good cause for
     dismissal is shown and the reasons for the dismissal are
     set forth in an order upon the minutes.

                                        7
Thus, dismissal of misdemeanor charges is allowed on the court's
own motion or on motion of the prosecutor in the furtherance of
justice.    Because of the nature of prosecutorial discretion, the
State is generally given wide latitude when requesting a dismissal
of criminal charges.      State ex rel. Fletcher v. District Court
(Mont. 1993),    _ P.2d -, _ 50 St. Rep. 992, 995.
       In Montana, a county attorney "not only directs under
       what conditions a criminal action [is] commenced, but
       from the time it begins until it ends his supervision and
       control is complete, limited only by such restrictions as
       the law imposes." . . . It is not only incumbent upon the
       county attorney to determine when or when not to
       prosecute a case, but when the facts of a case support a
       possible charge of more than one crime, the crime to be
       charged is a matter of prosecutorial discretion.
Fletcher, 50 St. Rep. at 993-94.
       Here, the State sought dismissal of the misdemeanor domestic
abuse charge in Justice Court in order to pursue the more serious
felony sexual assault charge in District Court. While in order to
obtain the dismissal of a felony charge under 5 46-13-401(l), MCA,
the State must show that such dismissal is in the furtherance of
justice and      for good cause, in moving for dismissal of a
misdemeanor     charge, the State need only show that the requested
dismissal is in the furtherance of justice. Section 46-13-401(l),
MCA.    Given the State's request that the misdemeanor charge be
dismissed because the State was prosecuting Schneiderhan on a more
serious charge in District Court,      the   "furtherance   of   justice"
requirement was met, and the Justice of the Peace was required to
rule on the State's praecipe to dismiss at the time it was filed.
While Fletcher involved the requested dismissal of felony charges

                                   8
and, thus, required the State to demonstrate that dismissal was in

the furtherance of justice and for good cause, the rule set forth

in that case is,      nevertheless,      also applicable here, where the

State's only obligation was to demonstrate that the dismissal was

in the furtherance of justice.           Simply stated, when the State has

met the appropriate standard of dismissal, the court may not deny

the motion to dismiss. Fletcher, 50 St. Rep. at 995. Accordingly,
the Justice      of   the    Peace   erred      in   proceeding      to   sentence

Schneiderhan with the State's praecipe to dismiss outstanding.
Under the circumstances, in failing to grant the State's praecipe

to dismiss, the Justice Court committed reversible error.

            III - DIVESTITURE OF JUSTICE COURT JURISDICTION
     The     State    also    contends       that    the   Justice    Court    was

automatically divested of jurisdiction after the information was

filed in the District Court, because the felony charge was based on
the same facts which served as the basis for the misdemeanor

charge.     We find no support for this contention under any Montana

statutory    authority, and decline to so hold.

     Unless the legislature chooses to enact a statute that would

accomplish the result proposed by the State, it will continue to be

the responsibility of prosecutors, while at all times keeping in

mind the statutory and constitutional proscriptions against double

jeopardy,    to coordinate and manage the filing and dismissal of

criminal charges arising out of the same factual basis and which

implicate both a court of limited jurisdiction and a district

court.

                                         9
                   IV - LESSER INCLUDED OFFENSE
     In dismissing the felony sexual assault charge, the District
Court held that misdemeanor domestic abuse was a lesser included
offense of felony sexual assault, and    therefore    double   jeopardy
attached at the time Schneiderhan was sentenced in Justice Court.
     As we have ruled above, the misdemeanor domestic abuse charge
should have been dismissed by the Justice Court.         Accordingly,
there would not have been a double jeopardy issue facing the
District Court had the Justice Court proceeded in accordance with
the law.
     The result of this opinion will require the dismissal of the
misdemeanor domestic abuse charge and the remand for further
proceedings in District Court on the felony sexual assault charge.
In rendering the double jeopardy issue moot, we, therefore, decline
to rule on the lesser included offense issue.
     We remand to the Justice Court for entry of an order vacating
the domestic abuse conviction and sentence and dismissing that
action pursuant to the praecipe filed by the State.    Thereafter, we
remand the felony sexual assault charge to the District Court for
further proceedings consistent with this opinion.
     Reversed and remanded with instructions.



We



       Chief Justice


                                 10
                                    October 19, 1993

                             CERTIFICATE OF SERVICE

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


Hon. Joseph P. Mazurek, Attorney General
John Paulson, Assistant
Justice Bldg.
Helena, MT 59620

Patrick L. Paul, County Attorney
Michael L. Fanning, Deputy
Cascade County Courthouse
Great Falls, MT 59401

Susan L. Weber
Attorney at Law
P.O. Box 1258
Great Falls, MT 59403

Hon. Thomas McKittrick
8th Judicial District
Cascade County Courthouse, Dept. #l
Great Falls, MT 59401

                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
