                                                                                         February 19 2013


                                           DA 11-0720

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 41N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

PHYLLIS JAMISON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 11-404
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Phyllis Jamison (self-represented), Clinton, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney; M. Shaun Donovan,
                        Deputy County Attorney, Missoula, Montana


                                                     Submitted on Briefs: January 31, 2013
                                                                Decided: February 19, 2013



Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


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

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2        In 2011 Phyllis Jamison was convicted in Missoula County Justice Court of the

misdemeanor offenses of disorderly conduct and assault. She appealed to District Court and

moved to dismiss the charges, arguing that the State had committed prosecutorial misconduct

and that a new trial in District Court would constitute double jeopardy. On November 29,

2011, the District Court denied Jamison’s motion to dismiss and Jamison appealed. By order

of March 20, 2012, this Court allowed the appeal to proceed solely to resolve the issue of

double jeopardy, citing State v. Barron, 2008 MT 69, ¶ 8, 342 Mont. 100, 179 P.3d 519. We

affirm.

¶3        A district court’s decision on a claim of double jeopardy presents an issue of law that

this Court reviews to determine whether the decision is correct.             City of Helena v.

Whittinghill, 2009 MT 343, ¶ 10, 353 Mont. 131, 219 P.3d 1244.

¶4        Article VII, Sec. 4(2) of the Montana Constitution provides that the district courts

must hear appeals from lower courts “as trials anew unless otherwise provided by law.”

Section 46-17-311(1), MCA, provides that appeals from justice courts that are not courts of

record “must be tried anew in district court.” The purpose of a new trial in district court is to

provide a defendant a “competent remedy” for any errors that may have been made in the

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lower court. City of Three Forks v. Schillinger, 2007 MT 331, ¶ 14, 340 Mont. 211, 173

P.3d 681.

¶5     The Montana Constitution, Article II, Sec. 25, provides that “[n]o person shall be

again put in jeopardy for the same offense previously tried in any jurisdiction.” This

guarantee against double jeopardy protects persons from prosecution for the same offense

after an acquittal, from a second prosecution for the same offense after conviction, and from

multiple punishments for the same offense. Barron, ¶ 14. It is well established that there is

no double jeopardy when a convicted defendant appeals and obtains a new trial. State v. Bad

Horse, 185 Mont. 507, 513, 605 P.2d 1113, 1116 (1980); State v. Cardwell, 191 Mont. 539,

542, 625 P.2d 553, 555 (1981); State v. Duncan, 2012 MT 241, ¶ 8, 366 Mont. 443, 291 P.3d

106. The reason that a retrial after appeal does not constitute double jeopardy is that the

retrial is merely a continuation of the same jeopardy that attached upon the original

conviction. Cardwell, 191 Mont. at 542, 625 P.2d at 555; Duncan, ¶ 11. Retrying a

convicted defendant after an appeal is not one of the abuses that the protection against double

jeopardy was designed to prohibit. Duncan, ¶ 12.

¶6     Similarly, an appeal to district court for a trial de novo following conviction in a

justice court that is not of record constitutes a continuation of the same jeopardy that

attached in justice court. The new trial afforded by Article VII, Sec. 4(2) of the Montana

Constitution and § 46-17-311(1), MCA, is a continuation of the same jeopardy and does not

contravene the prohibition against double jeopardy in Article II, Sec. 25 of the Montana

Constitution.


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¶7     We decline to address Jamison’s arguments concerning errors made during her trial in

Missoula Justice Court. Those issues can be addressed in the District Court proceedings.

¶8     The issue in this case is an issue of law, controlled by settled Montana law, which the

District Court correctly applied. We have determined to decide this case pursuant to Section

I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum

opinions.

¶9     Affirmed.

                                                  /S/ MIKE MCGRATH


We concur:

/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ LAURIE MCKINNON




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