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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