                                NO.    92-453
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1993




LYNN C. CUXMINS,
          Defendant and Appellant.



APPEAL FROM:        District Court of the Eighteenth Judicial District,
                    In and for the County of Gallatin,
                    The Honorable Larry W. Koran, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                    Jeannette Ellen Berry; Berry & Bordy, Bozeman,
                    Montana
          For Respondent:
                    Hon. Marc Racicot, Attorney General; Micheal
                    Wellenstein, Assistant Attorney General, Helena,
                    Montana
                    Mike Salvagni, Gallatin County Attorney; Jane
                    Mersen, Deputy County Attorney, Bozeman, Montana



               .   ." 4
                                Submitted on Briefs:       January 21, 1993
                                                Decided:   April 6, 1993
Justice John Conway Harrison delivered the Cpinion of the Court.

     This is an appeal from the District Court of the Eighteenth
Judicial District, Gallatin County, the Honorable Larry W. Moran
presiding.    We affirm.
     The issue presented is whether the District Court erred in
denying the defendant's motion to dismiss the complaint based on an
unreasonable delay in the execution of an arrest warrant.
     In   1988   and   1989,   appellant Lynn C.   Cummins   (Cumins)
maintained two separate checking accounts; one in the name of Cheri
L. Cummins (the iqCheri"account) and one in the name of Lynn C.
Cummins (the "Lynnw account).      On her checks, the "Cheri* account
listed her post office box number, while the "Lynn" account listed
her street address.
     Prior to the misdemeanor charge leading to this appeal,
Cummins answered a compiaint fiied on May 1, 1989, charglng her
with issuing bad checks, a misdemeanor, on the "CheriW account.
When the arrest warrant issued in that case, Cummins complied with
the sheriff's department's direction to appear in Justice Court on
the charge.      After she made restitution on those checks and
complied with other conditions, the court dismissed that complaint.
     In August 1989, Cummins was again charged with issuing bad
checks, a misdemeanor, for checks written on the "Lynnw account
between September 25, 1988, and November 22,         1988.   A sworn
complaint was made on August 2, 1989, and an arrest warrant issued
that day.     The warrant was delivered to and logged with the
sheriff's department on August 11, 1989. The warrant was executed
                                   2
May 1, 1991, one year and nine months from the date it was issued.
This means that Cummins was arrested two years and five months from
the date of the offense.
     cummins testified that she was under the impression that all
of   her   outstanding   checks were   included   in    the   May   1989
prosecution, and that to her knowledge, she did not receive notice
that there were checks outstanding on the "Lynn" account.
     Cummins moved to dismiss the complaint in Justice Court on
July 9, 1991.   She argued that the delay in executing the arrest
warrant was unreasonable, therefore it violated her due process
rights. Cummins does not claim prejudice on appeal or explain how
she might have been prejudiced by any delay.           She claims that
because she had no notice of the complaint for a period of twenty-
one months, her due process rights were violated.      She also argued
in her motion that the delay violated the "spiritl* of the one-year
statute of limitations for commencing prosecution of a misdemeanor.
On July 2, 1991, the court denied her motion to dismiss and found
her guilty of issuing bad checks. Cummins appealed to the District
Court for a trial de novo and, on January 31, 1992, she filed a
similar motion to dismiss in the District Court.              Following
submission of briefs and a hearing, the District Court denied her
motion to dismiss on February 10, 1992.
     On June 11, 1992, by stipulation and pursuant to 5 46-12-
204(3), MCA, Cummins pled guilty to the charged offense, reserving
the right to appeal from the District Court's denial of her motion
to dismiss. The District Court accepted her plea of guilty to the
misdemeanor charge of issuing bad checks and issue6 an or6er
deferring imposition of her sentence for six months on the
condition that she pay $194.89 in restitution and perform 40 hours
of community service. The sentence was stayed pending the outcome
of this appeal.
        The issue on appeal is whether the District Court abused its
discretion in denying Cumins' motion to dismiss the complaint.
She argues that the complaint should have been dismissed for
unreasonable delay in prosecution under the authority of I 46-13-
401(1), MCA, which provides in part: 1 1 n court may
                                      ?3e                  . . .   in
furtherance of justice, order a complaint    . . . to be dismissed. .
.   .
    "   As this Court noted in State ex rel. Anderson v. Gile (1946),
119 Mont. 182, 187, 172 P.2d 583, 586:
        The legislature has not attempted to define the phrase
        "in furtherance of justicew
        judicial discretion
                                       ..
                                exercised
                                         ., hence it is left for
                                             in view    of   the
        constitutional rights of the defendant and the interests
        of society to determine what particular grounds warrant
        the dismissal of a pending criminal action.
        The statute of limitations for prosecuting a misdemeanor in
Montana is set forth in 5 45-1-205(2) (b), MCA, which states that

"[a] prosecution for a misdemeanor must be commenced within 1 year
after it is committed."      The prosecution is commenced when the
complaint is filed.     Section 45-1-205(7), MCA.   In this case the
State filed the complaint in a timely fashion, approximately nine
months after the alleged commission of the offense.         Although
Cummins admits the State filed its complaint within the statute of
limitations, she argues that "reasonable diligence is also required
in executing the arrest warrant to effectively toll the statute of
                                   4
li~itations.~ need not decide the case in this basis.
            We
     The District Court determined that the warrant was not "stale"
under the circumstances of the case.   Cummins testified at trial
that her real name was Cheri Lynn Cummins, not Lynn C. Cumins--the
name on the checks.    Although the sheriff's department had an
address for Cummins, when they attempted to serve her at that
address they found no one home.   When they finally contacted her
husband at that address he told the deputy that he and Cummins were
separated and that she was living in Missoula, even though this was
not true.    Her husband did not tell her that the sheriff's
department wanted to speak with her.
     Between August 1988 and February 1990, Cummins and her husband
lived at the address stated on her checks. However, Cummins lived
there sporadically in January and February of 1990 as she and her
husband were "fighting."   Between February and the time she was
arrested, she lived at six different locations in Gallatin County
for short periods of time, including places in Bozeman, West
Yellowstone, and Amsterdam.   She also worked in at least seven
different locations during that period.
      In attempting to serve her with the warrant, the sheriff's
department went through a checklist of potential information
sources. A sergeant with the department testified that the warrant
in this case was worked approximately fives times as much as the
other misdemeanor warrants they had on file.
    The record indicates that the sheriff's department personnel
do not have unlimited resources to track down every lead in their
effort to    serve arrest warrants.     The department received
approximately 2,000 arrest warrants during 1989, 1990 and 1991 and
the volume makes it nearly impossible to follow up on every lead.
     This was recognized by the District Court in denying Cummins'
motion to dismiss the complaint where it noted:
     I think we have to interpret these regulations with some
     degree of practicality. The sheriff in a bad check case
     cannot spend all of his time day after day after day
     trying to track down a person that writes bad checks,
     particularly a person who is writing bad checks out of
     two accounts under two different names at the same time.
     And that's precisely the circumstance the evidence, at
     least insofar as the pleadings are concerned, indicated
     here. 1 feel that the case is not stale, and the Motion
     to Dismiss is denied.
We find the State did not violate the statute of limitations or
Cummins' due process rights.
     Affirmed.




We concur:
                                          April 6, 1993

                                  CERTIFICATE OF SERVICE

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


Jeannette Ellen Berry
Berry & Bordy
2631 West Main Street
Bozeman, MT 59715

Hon. Joseph P. Mazurek, Attorney General
Michael Wellenstein, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620

Michael Salvagni, Gallatin County Attorney
Jane Mersen, Deputy County Attorney
61 5 Smth 16th Avenue,Room C llI
                               C
Bozeman, M T 59715

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COUR7
                                                     STATE OF MONTANA

                                                     BY:
                                                       Deputy
