                                      NO. 94-243
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1994


STATE OF MONTANA,
               Plaintiff and Respondent,
         v.
BARBARA STROBEL,                                             :
               Defendant and Appellant.



APPEAL FROM:             District Court of the Tenth Judicial District,
                         In and for the County of Fergus,
                         The Honorable Peter Rapkoch, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                         Craig R. Buehler, Lewistown, Montana
              For Respondent:
                         Hon. Joseph P. Mazurek, Attorney General:
                         John Paulson, Assistant Attorney General, Helena,
                         Montana
                         Thomas P. Meissner, Fergus County Attorney,
                         Lewistown, Montana




              i‘!o\:’ ;.f ‘i jgg4.              Decided:   November 22, 1994
Filed:



                                       Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
       Barbara Strobe1 pled guilty to        felony theft before the
District Court for the Tenth Judicial District, Fergus County.      She

appeals an issue reserved from her motion to dismiss the informa-
tion filed against her.       We affirm.
       The issue is whether the District Court erred in denying
Strobel's   motion to dismiss because the information was not filed
within thirty days after she waived her right to a preliminary
examination.
       On August 26, 1993, Barbara Strobe1 was arrested on a charge
of felony theft on a Fergus County Justice Court complaint, arrest
warrant,    and   search   warrant.   Strobe1 was employed at Eddie's
Corner,    a business establishment located at the intersection of
U.S. Highways 87 and 191.      She was charged with pocketing money and
failing to ring up receipts while she worked as a cashier.
       On August 27, 1993, Strobe1 made an initial appearance before
the Justice Court, where she was informed of the charges against
her.   She waived preliminary examination.     The Justice of the Peace
informed Strobe1 that her case would be bound over to District
Court and appointed an attorney to represent her.
       The first document filed in District Court was Strobel's
September 3, 1993 motion to be released on her own recognizance.
On September 27, 1993, the Fergus County Attorney filed a motion
for leave to file an information in District Court charging Strobe1

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with felony theft in violation of § 45-6-301, MCA.        The County
Attorney filed an affidavit of probable cause in support of his
motion.   The following day, September 28, 1993, the District Court
granted leave to file the information, which the County Attorney
then filed.
     On September 29, 1993, Strobe1 moved to dismiss the informa-
tion on grounds that it had not been filed within the thirty-day
time period prescribed in § 46-11-203, MCA.       The District Court
denied that motion and also denied Strobel's motion to be released
on her own recognizance.
     Strobe1 subsequently pled guilty to the charged offense,
reserving the right to appeal the issue raised in her September 29
motion to dismiss.   She has been sentenced, and now appeals.


     Did the District Court err in denying Strobel's motion to
dismiss the information because it was not filed within thirty days
after she waived her right to a preliminary examination?
     Under $j 46-11-101, MCA,    a prosecution may be commenced in
Montana courts by:   (1) a complaint: (2) an information following
a preliminary examination or waiver of a preliminary examination:
(3) an information after leave of court has been granted: or (4) a
grand jury indictment.     All prosecutions of offenses charged in a
district court must be by indictment or information and all other
prosecutions must be by complaint.     Section 46-11-102, MCA.

                                   3
      A justice court has jurisdiction to act as an examining and
committing court in cases involving felony offenses, such as the
one with which Strobe1 was charged.      Art. VII, Sec. 5(2), Mont.
Const. ;    5 3-10-303, MCA.    In such a case,   § 46-10-106, MCA,
provides that if the defendant waives a preliminary examination,
"the judge shall hold the defendant to answer to the court having
jurisdiction of the offense."
     Section 46-11-203, MCA, provides:

     (1)    After a finding of probable cause following a
     preliminary examination or waiver of a preliminary
     examination or after leave of court has been granted, the
     prosecutor shall file within 30 days in the proper
     district court an information charging the defendant with
     the offense or any other offense supported by probable
     cause.

      (2)  Unless good cause to the contrary is shown, the
     court shall dismiss the prosecution if an information is
     not filed within 30 days as required in subsection (1).
As described above, Strobe1 was arrested upon a complaint and made
her initial appearance in justice court.       She argues that the
charges     against her should have been dismissed pursuant to
subsection (2) above, because the information was filed in District
Court more than thirty days after she waived a preliminary
examination in justice court.
     However, here, the information was filed in the District Court
only after the County Attorney obtained leave of the court to file
the information, an alternative method allowed under § 46-11-101,
MCA, for commencing a prosecution.    The requirements of § 46-ll-

                                  4
203, MCA, were met, because the information was filed within thirty
days after the District Court granted the County Attorney leave to

file the information.
        Strobe1 contends that the State cannot switch midstream in a

prosecution from using the preliminary examination process in

justice court to using the leave to file information process in

district    court.     She argues that the words "dismiss the prosecu-

tion" in 5 46-ll-203(2),        MCA, precluded the State from filing any

information against her based on these offenses more than thirty

days after she waived preliminary examination.
        Strobe1 cites State v. Cardwell (1980),       187 Mont. 370, 609

P.2d 1230,    appeal after remand 19i E/iont. 539,     625 P.2d 553. In

that case,     this Court indicated approval of the definition of

prosecution as        "a   series of proceedings from the time formal

accusation is made by swearing out a warrant, the finding [sic] of

an indictment or information in a criminal court, the trial, and

final judgment." Cardwell, 609 P.2d at 1233. This Court held that

the term "prosecute" included the amendment of a criminal informa-

tion.     Cardwell,    609 P.2d at 1233.    Neither   that   definition   of

prosecution nor the holding in Cardwell resolves this case.

        If the District Court had dismissed the prosecution against

Strobe1 pursuant to 5 46-ll-203(2), MCA, the effect would have been

the discharge of Strobe1 and the exoneration of her bail.          Section

46-13-402, MCA.       Strobe1 has not provided persuasive authority for

                                      5
her contention that a dismissal under § 46-ll-203(2), MCA, is with
prejudice.    The County Attorney would not have been precluded from
commencing another prosecution for the same offense.'
     Although a criminal defendant has a right to an independent
judicial determination of probable cause, the defendant has no
vested right to a particular procedure for the probable cause
determination.     State v. Higley (1980), 190 Mont. 412, 418-19, 621
P.2d 1043, 1048.    By filing a complaint in justice court, the State
is not committed to the procedure by which probable cause will be
determined; the prosecution may employ the alternative procedure of
obtaining leave of court to       file an information directly in
district court.    State v. Dunn (1970), 155 Mont. 319, 325, 472 P.2d
288, 292.
     In this case, Montana law would have permitted but did not
require the County Attorney to file,         within thirty days of
Strobel's    waiver of    preliminary examination, an information
commencing the prosecution in District Court without first seeking
leave of court.    In that situation, Strobel's waiver of a prelimi-
nary examination would constitute an admission of the existence of
probable cause.    Alternatively, the County Attorney was permitted



     'The right to speedy trial as defined by 5 46-13-401(2), MCA,
and the United States and Montana Constitutions would limit the
right to commence another prosecution.      However, violation of
Strobel's right to speedy trial has not been alleged.

                                   6
but not required by Montana law to seek leave of the District Court

to file an information,            by filing a motion supported by an

affidavit showing probable cause to believe Strobe1 committed

 felony theft.
         The District Court's file does not contain a record of

Strobel's waiver of the right to preliminary examination in the

justice     court   proceedings.     Montana statutes and justice court
rules do not set forth the manner in which the justice court is to

hold the defendant to answer to the court having jurisdiction;

there is no provision requiring the transfer of documents or

records from justice court to district court.          It appears that such

a provision may be advisable.          Where, as   here, the district court

record does not contain the defendant's waiver of the right to

preliminary examination in the justice court proceedings, we

conclude it is reasonable for the county attorney to file documents

in district court which set forth the facts as alleged by the State

and which demonstrate probable cause to prosecute the defendant.

     The State invites this Court to clarify which court had

jurisdiction to consider Strobel's conditions of release during the

period between her waiver of preliminary examination and the filing

of the information in District Court.              Section   46-9-311,   MCA,

provides that the court before which the proceeding is pending, or
in this case,       the   District   Court,   has jurisdiction to do so.

Where,    as was the situation for thirty-one days in this case, an

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W e concur:
Justice James C. Nelson     dissenting.


      I respectfully dissent.      In my view, once the accused waives

preliminary   examination   in   justice    court,   the   State    is   required

under the clear and unambiguous language of § 46-11-203(l), MCA, to
file an information within 30 days in district court.                     If the

information is not filed within 30 days, absent a demonstration of

good cause by the State, the district court is required to dismiss
the prosecution with prejudice under subsection                    (2)   of that

statute.

      In this case, the State did not file an information within 30

days of the date that the accused waived preliminary examination.
Filing a motion for leave to file an information is not filing the

information    itself;   a prosecution is commenced by filinq an
information, not by apolvins to file an information.               Sections 46-

11-101, MCA, and 46-11-201, MCA.          Contrary to the State's argument

and the District Court's ruling, the mandatory duty under § 46-ll-

203(l), MCA, to file an information within 30 days of the accused's
waiver of preliminary examination is not fulfilled by "substantial
compliance"   with the statute.
     Moreover, the State did not demonstrate good cause for failing

to file the information within the time required.                  As the State

points out in its brief, "good cause" has been generally defined as

a "substantial" or "legally sufficient" reason.             State v. Rozzell

(1971) I   157 Mont. 443, 450, 486 P.2d 877, 881.          It borders on the

absurd to conclude that the State simply taking the steps necessary

to commence the prosecution is a substantial or legally sufficient
                                      9
reason for not complying with the statutory mandate to file the

information        within    30   days.   Simply failing to comply with the

statute can hardly constitute the good cause necessary to justify

failing to comply with the statute. Presumably, if the legislature

had deemed it sufficient for the State to file the paperwork

necessary to commence the prosecution in district court within 30

days,    rather than to actually commence the prosecution, § 46-11-

203, MCA, would have so provided.

        Under the circumstances here, Strobe1 was entitled to have the

prosecution        against    her    dismissed.    In my view that dismissal

should     have,    necessarily,      been with prejudice, for to conclude

otherwise would allow the State to simply file a new information

and re-institute the prosecution with the result that the sanction

prescribed by the legislature in § 46-ll-203(2),                   MCA, would be
meaningless.         We presume that the legislature would not pass a

meaningless        statute.       Mont. Contractors' Ass'n, Inc. v. Dept. of

Highways (1986),       220 Mont. 392, 395, 715       P.2d 1056, 1058.

        Furthermore,        subsection (2) requires, significantly, that the

district court dismiss the "prosecution," and not simply the

document    which     commences     the   prosecution,   i.e.,   the   information.

To "prosecutel'      an action is not merely to commence it, but includes

following it to an ultimate conclusion.              A "prosecution" is "[t]he

continuous following up, through instrumentalities created by law,

of a person accused of a public offense with a steady and fixed

purpose of reaching a judicial determination of the guilt or

innocence of the accused."            Black's Law Dictionary, 5th Ed. at page


                                            10
1099.     & also Rosebud County v. Flinn (1940), 109 Mont. 537, 541-

42, 98 P.2d 330, 333-34; State v. Cardwell            (1980),   187 Mont. 370,

374-75, 609 P.2d 1230, 1232-33, appeal after remand 191 Mont 539,
625 P.2d 553.          Again,    the legislature's mandate that if the

information is not timely filed, the "prosecution" be dismissed,

clearly contemplates that the entire criminal proceedings against

the defendant be terminated with prejudice, if the statute is to

have any meaning or purpose.
        While this Court's opinion is correct in stating that the
methods    of   commencing   a   criminal   prosecution   under   fj   46-11-101,

MCA, are in the alternative and that the defendant has no vested

right to a particular procedure for determining probable cause or
commencing a criminal prosecution, it is my opinion that once the

30 day clock begins to run by the accused's waiver of preliminary

examination in justice court, it is mandatory that the State, by
whatever     means    it   chooses   under    §   46-11-101,    MCA,     file an

information in district court within the statutory time limit or,

to demonstrate good cause why that was not accomplished.                    Under

such    circumstances, whether the State files the information under

subsection      (2)   of the statute or after leave of court under

subsection (3) of § 46-11-101, MCA, is immaterial, as long as the
information is filed within the 30 day period required by § 46-11-

203(1), MCA.
        Our conclusion that "Montana law would have permitted but did

not require the county attorney to file, within thirty days of

Strobel's waiver of preliminary examination, . . . without first


                                       11
seeking leave of court" is misleading.             Section 46-11-203, MCA, is
mandatory,   not permissive. "[T]he prosecutor shall file within 30

days . . .      an information. . .         .I1 Section    46-11-203(l),   MCA.

"[T]he court shall dismiss the prosecution if an information is not

filed within 30 days as required in subsection (l)."                 Section 46-

11-203(2),   MCA.     (Emphasis   added).        True,   the State could have
sought leave of court and could have filed an information within

the 30 days after the accused's waiver of preliminary examination.
It does not follow, however, that, once the 30 day clock began to
run by the accused's waiver of preliminary examination, the State

could simply ignore its statutory obligation to file, let that time

expire, and then obtain leave of court and file its information at

a later date.       The plain mandatory language of the statute, simply

does not permit such an interpretation.
     Finally,     while    the    record    of     the   accused's    waiver of

preliminary examination was not in the form of a written record,

and while I agree with this Court that there should be a statutory

requirement for such a record, there is nothing in this case to

indicate that Strobe1 did not waive her right to preliminary

examination by failing to request one on August 27th at her initial
appearance in justice court.        Apparently, the justice of the peace

and the accused had no problem in reaching that conclusion.

     The long and short of it is that in this case the State did
not file an information within 30 days of Strobel's waiver of

preliminary examination in justice court as required by § 46-ll-

203(l), MCA; the State did not demonstrate good cause why it failed

                                      12
to   do    So   as required by s 46-ll-203(2),   MCA; and, under such
circumstances,       the District Court was required, pursuant to § 46-

11-203(2),        MCA,   to dismiss the prosecution--in my view, with

prejudice.

          Accordingly,   I would reverse and remand for entry of an order

dismissing the prosecution against Strobe1 with prejudice to the

merits.         From our failure t




Justice Karla M. Gray joins in the foregoing dissent.n




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