                                                              No.    87-564

                                  I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                                    1988




     S T A T E O F MONTANA,

                                    P l a i n t i f f and R e s p o n d e n t ,
                     -VS-

     GERALD ROY ONSTAD,

                                    D e f e n d a n t and A p p e l l a n t .




     A P P E A L FROM:              D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t ,
                                    I n and f o r t h e C o u n t y of H i l l ,
                                    T h e H o n o r a b l e C h a n E t t i e n , Judge p r e s i d i n g .

     COUNSEL O F RECORD:

                     For A p p e l l a n t :

                                    J a m e s W.   Spangelo, H a v r e , M o n t a n a

                     For R e s p o n d e n t :

                                    Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
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                                                                    S u b m i t t e d On B r i e f s :   Oct.     13, 1988
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Mr. Justice L. C. Gulbrandson del.ivered the Opinion of the
Court.


           Appellant, Gerald Roy Onstad, appeals an order of the
Twelfth Judicial District Court, Hill count:^, reinstating an
information charging Onstad with burglary and theft, and his
subsequent conviction and sentence on the information. FJe
reverse.
      Onstad was arrested on Decemher 9, 1985, for the
burglary of and theft from a residence in Box Elder, Montana.
An information charging him with the crimes was filed on
Decemher 12, 1985.  Onstad entered a plea of not guilty to
the charges on January 22, 1986.        A motion to dismiss for
lack of jurisdiction was filed on May 19, 1986, alleging that
Onstad was an enrolled member of the Turtle Mountain Rand of
Chippewa Indians, that he was charged with a "major crime,"
and that the crime occurred in "Indian Country" or in a
"Dependent Indian Community."     For these reasons, Onstad
contended jurisdiction was properly in the federal courts. A
brief supporting these contentions was also filed at that
time   .
      Shortly thereafter, the county attorney encountered
appellant's attorney in the hall of the county courthouse and
informed him the response to the motion to dismiss would take
more time, to which the reply was "okay." However, no notice
to this effect was made to the court and on June 3, 1986, no
responding brief having been submitted, the District Court
Judge found the challenge to jurisdiction well-taken and
dismissed the information and the charges.      The order of
dismissal was filed, but through oversight, the order was not
served on the attorneys.
      On July 16, 1986, the county attorney filed a memo in
opposition addressing the jurisdiction issue.    On July 31,
1986, Onstad's attorney filed a reply brief and on August 5,
1986, the county attorney filed a "Motion to Set Aside Order
of Dismissal." However, the time for appealing the District
Court order of dismissal had expired on August 2, 1986.     A
hearing on the motion was held August 11, 1986, and the court
granted the motion on September 10, 1986, reinstating the
information.
      Onstad was subsequently convicted and sentenced to five
years imprisonment, with all five years suspended.        The
suspension of the sentence has since been revoked by the
court for violation of the conditions attached to the
suspension.
      Appellant presents the following issues on appeal:
      1.   Did   the   District   Court   have   jurisdiction   to
reinstate the information on September 10, 1986, after having
dismissed it on June 3, 1986, and if so were Onstad's double
jeopardy rights violated?
      2.  Is the situs of the alleged crime Indian Country
because of congressional action?
      3. Is the situs of the alleged crime Indian Country
because it is a Dependent Indian Community?
      It is the appellant's first contention that the
District Court, having entered its order dismissing the
information, was without jurisdiction to change the order.
The District Court, with one exception, properly dismissed
the information based upon the record before the court. The
motion was properly made, briefed, and on its face contended
a lack of jurisdiction in the District Court. Rule No. I1 of
the Uniform District Court Rules, then in effect, provides an
adverse party shall have ten days from the filing of the
movant's brief to serve and file an answer brief. Further,
failure to file a brief by either party:
            [W]ithin   the   prescribed  time   shall
            subject [the] motion to summary ruling,
            ...   and such failure to file a brief by
            the adverse party shall be deemed an
            admission that in the opinion of counsel,
            the motion is well-taken.
Rule No. II(l), Montana Uniform District Court Rules. when a
party allows the time for filing a brief to lapse, the
Uniform District Court Rules provide the clerk shall, "on the
Monday ..   . next following the lapse of the time of either
party for the filing of a brief, present such motion to the
Court for decision."
       The same Uniform District Court Rul-e in part 2 provides
"[elxtensions of time for filing briefs   .   .
                                             . may be granted
on oral application .    ..  "    However, the court must he
notified by counsel of the desire or need for an extension
before one may be granted. This was not done in this case
and the court properly dismissed the information.
       The order dismissing the case issued on June 3, 1986,
and the clerk filed the order on that date. Upon the filing
of the order dismissing the information the order became a
final judgment and was appealable.      See, State v. Enfinger
 (Mont. 1986), 722 P.2d 1170, 43 St.Rep. 1403; State v.
Wirtala (Mont. 1988), 752 P.2d 177, 45 St.Rep. 596; and State
v. Spencer (S.D. 1916), 157 N.W. 662.
       Sections 46-13-106 and 46-13-201, MCA, deal with the
effect granting a motion to dismiss has on an information.
Section 46-13-106, MCA, provides:
            If the court directs the action to be
            dismissed, the defendant must, if in
            custody, be discharged therefrom or, if
            admitted   to   bail,    have   his   bail
            exonerated or money deposited instead of
            bail refunded to him.     However, if the
            court grants a motion to dismiss based on
            a defect in the institution of the
            prosecution   or   in    the   indictment,
           information, or complaint, or if it
           appears at any time before judgment that
           a mistake has been made in charging the
           proper offense, the court may also order
           that the defendant be held in custody or
           that his bail be      continued for a
           specified time pending the filing of a
           new     complaint,    indictment,     or
           information.
This statute implies that the dismissed information is no
longer effective against the defendant, though the court may
retain custody over the defendant pending the filing of a -
                                                          new
information. The statute does not provide for reinstatement
of the dismissed information.
      Therefore, a valid   information did not exist under
which the defendant could be tried, and defendant's
subsequent   trial, conviction    and sentence under   the
reinstated information is invalid.
      We note the State contends the court could reinstate
the information as a nunc pro tunc correction of the record.
While a District Court may correct clerical errors to make
the record speak the truth as to what was actually decided,
the court may not change what was originally intended. State
v. Owens (Mont. 1988), 748 P.2d 473-474, 45 St.Rep. 89, 91.
The reinstatement of the information was a reversal of the
court's decision on the motion to dismiss and is not
permissible.
      It is the general rule, that the granting of a motion
to dismiss for defects in the indictment, information or
complaint does not bar the prosecution from instituting a new
complaint, indictment or information on the same offense.
Section 46-13-106, MCA. However, as this Court has equated a
motion for dismissal under § 46-13-106, MCA, to a "dismissal
at instance of court or prosecution" under 5 46-13-201, MCA,
subsection (3) of that section will apply.     State v. Roll
(1983), 206 Mont. 259, 670 P.2d        566, 568.     Section
46-13-201 (3), MCA, provides that "dismissal of an action as
provided in this chapter is a bar to any other prosecution
for the same offense if it is a misdemeanor, but it is not a
bar if the offense is a felony."
      Reversed.




We concur:           /




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