                                     NO.   83-397

                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           1984



IN THE MATTER OF:

L.R.T., R.A.C., T.P.V.
and M.L.B., YOUTHS.




Appeal from:   District Court of the Twelfth Judicial District,
               In and for the County of Hill
               Honorable Chan Ettien, Judge presiding.

Counsel of Record:

               For Appellant:

                    Hon. Mike Greely, Attorney General, Helena, Montana
                    Ronald W. Smith, County Attorney, Havre, Montana

               For Respondent:

                    Hauge, Ober, Hauge and Brown, Havre, Montana (LRT)
                    Altman & Lilletvedt, Havre, Montana (RAC)
                    Mark A. Suagee, Havre, Montana (MLR)



                                      Submitted on briefs: January 5, 1984

                                                    Decided: May 7, 1984
Mr. Justice Daniel J.             Shea delivered the Opinion of the
Court.


       The State of Montana appeals an order of the Hill County
District Court dismissing the State's petition to declare
four youths as delinquents.               The dismissal was based on
section      41-5-516,     MCA,    as    it   existed      before      the     1983
amendments.     We affirm.
      At the time the petition was filed under the Youth Court
Act in June 1983, section 41-5-516, provided a mandatory
hearing within 15 da.ys of service of process for youths in
custody (subsection 1), and a method by which a continuance
could be obtained for youths not in custody, by compliance
with the conditions set forth in subsection 2.                        The youths
involved were not ir! custody and the primary focus is on
subsection 2 of this statute.
      Based on the youths' motions to dismiss by failure to
comply with subsection 2, the trial court ruled that the
continuances       involved       regardless    of       whether      they    were
obtained on motion of the State or based on the trial court's
sua    sponte      order   of     continuance,       failed      to   meet      the
requirements of subsection 2 that the continuances be "in the
interests     of    justice"       and   tha.t the        moving      party    was
"diligent" in pursuing the matter before asking                         for the
continuance.
      Section      41-5-516(2),      permitting      a    continuance         under
certain limitations and conditions where the youths are not
in    custody, is      the    primary    focus of         this   appeal.         It
provides :
      "The youth court may, upon motion of either party
      or upon the court's own motion, order a continuance
      if the youth is not in custody and interests of
      justice so require. All motions for a continuance
        are addressed to the discretion of the youth court
        judge and must be considered. in the light of the
        diligence shown on the part of the movant."
        The basis for the juvenile delinquency petition was a
shooting incident in the area of North Havre, commonly known
as "Bum Jungle."       The State alleged that four juveniles and
one adult obtained a gun and shot Allen Wayne Fust whil-e they
were driving in the "Bum Jungle" area.          The shooting victim
was treated for his wound, released from the hospital, and he
has since disappeared and cannot be located.          The adult was
cha.rged as an adult offender with the crime of aggravated
assault.     The youths were charged as juvenile offenders on a
charge that they conspired to commit an aggravated a.ssault on
Fust.     At the time of the incident, one of the juveniles was
16 years old, one was 15, and two were 14.

        The State filed the petition on June 16, served the
youths on June 17, and a hearing date was set for June 27,
well within the 15 day hearing requirement.          The hearing did
not take place on this date.
        Five days before the scheduled June 27 hearing, an order
issued    continuing   the   hearing   date   and   setting the new
hearing date     for July 6, the effect of which           triggered
application of subsection 2 of the statute.          How this order
happened to be issued is in dispute.          At a later hearing on
the youths' motion to dismiss, the youths maintained that the
county attorney asked for the continuance, but the county
attorney steadfastly maintained that he had asked. for no
continuance.     The only thing that is certain is that the
youths did not ask for this continuance.
     The July 6 hearing also failed to take place.          On July
6, the trial court ordered the hearing date continued and did
not set another hea.ring date.     For almost a month after this
order, the State did nothing.                     On August 2, the State,
apparently concerned that a hearing on the juvenile petition
had not been set, requested the trial court to set a new
hearing date.         The court ordered that the hearing would take
place on August 5.            The juveniles, however, after receiving
notice of this hearing date, immediately filed motions to
dismiss the juvenile petition on the ground that the 15 day
time    limit under        section 41-5-516 (I), MCA, had             not been
satisfied     and      that   the    conditions for a           continuance as
provided for in subsection 2 also had not been satisfied.
       At the August 5 hearing on the motion to dismiss, the
State strenuously argued that it had not asked for either
continuance.        The record is silent on this question.                  At the
conclusion of the hearing, the trial court gave the State
three    days    to    file    a    brief    on    its   claim    that   section
41-5-516 (2) gave the court discretion in determining whether
or not to dismiss a juvenile petition because of a failure to
comply with the 15 day hearing requirement.                         The appeal
record does not reveal whether the State did file a brief.
       On   August      15, the      trial    court      in    a written     order
explaini.ng      its      decision,    dismissed         the     petition    with
prejudice.       The court noted that it cou1.d not be determined
whether or not the State had requested the first continuance,
but that the second continuance was granted at the request of
the    Sta.te.      The    trial    court noted          that   "the trail of
continuances is not well marked as to their grounds                         . . ."
but noted that
        ". . . there is nothing in the record to show the
       continuances were in the interests of justice or
       that consideration was had in the liqht of -
       diligence shown on the part of the movant, - -
                                                    be it
       state - court." (Emphasis added.)
             or
The court then concluded that
       11
                        .
                 while it can be argued there is a
       presumption   the    continuances    ordered   were
       sufficiently grounded, the Court - - - opinion
                                         is of the
       - - record should express support - -
       that the                                    for the
       orders." (Emphasis added.)
       Based on these considerations, the trial court concluded
that        the    spirit if not the letter of                           section 41.-5-516,
required a dismissal with prejudice.
       The        State presents             a     sliding         scale argument as        to
whether           there         has   been   compliance with               the    mandate   of
sections 41-5-516 (1) and                        (2)   .     If    the underlying       facts
leading to the filing of the juvenile petition are relatively
harmless, the State concedes the discretion of the trial
court to dismiss the petition because of noncompliance with
the statutory mandate.                   But if the underlying facts indicate
a serious transgression, such as the case here, the State in
effect argues that the trial court has no discretion to
dismiss a petition, and therefore that a dismissal is an
automatic abuse of discretion.                             The State, however, fails to
distinguish the discretionary powers of a court to gran.t a
continuance based on compliance with the statutory mandate
and the duty of the trial court to enforce the mandate of the
statute where the mandate has not been fulfill.ed.                                    If the
grounds           for       a    continuance           do    not    meet    the     statutory
requirements, the trial court has only one choice--to dismiss
the petition.                That is the situation here.
       As         to    the      first   continuance,              the   record     fails   to
indicate whether the State requested the first continuance or
whether the trial court, acting on its own, ordered the
continuance.                Wha.tever the case, however, the continuance was
ordered for unknown reasons and can hardly be said to meet
the "interests of justice" and due "diligence" requirements
of     subsection      2.          This   continuance,        ordered      without
compliance with the statute, placed the hearing date beyond
the 15 day limit.           This, by itself, was sufficient ground for
dismissal of the juvenile petition.
       This noncompliance was continued and amplified when the
second continuance was ordered.                  Although the State also
denied that it had             requested the second continuance and
insisted that it was ordered by the Court adting without
request from counsel, the trial court determined that the
State had requested and obtained the second continuance.                         It
does appear, by an after-the-fact investigation, that at the
time the second continuance order was issued, the trial court
was presiding over and the prosecutor was trying a DUI case.
Whether it was the trial court acting sua sponte or whether
it was the trial court acting pursuant to a request from the
State, the fact remains that the continuance was granted with
no reasons stated in the record for the continuance.                       We are
left     to    speculate     OD     the   circumstances       leading      to   the
continuance order.
       We     cannot   ignore       the   fact   that    after       the    second
continuance was ordered, almost a month went by before the
State requested the court to set another hearing date on the
juvenile petition.           The State was on notice of the mandatory
hearing        deadlines      of    the    statute      and    the      statutory
requirements for extending the hearing date beyond the 15 day
limit.        Even assuming that the trial court also ordered the
second continuance acting sua sponte, the failure of the
State to request a hearing for almost a month after this
order was issued fails to demonstrate a reasonable attempt to
comply with the hearing mandate of the juvenile statute.
     The District Court's dismissal of the juvenile petition
is affirmed.




We Concur:
