07/12/2016
DA 15-0506
Case Number: DA 15-0506
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 170N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TONY JORGENSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 11-393D
Honorable David M. Ortley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Thane Johnson, Johnson, Berg, & Saxby, PLLP, Kalispell, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Caitlin Overland, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: May 18, 2016
Decided: July 12, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Tony Edward Jorgenson appeals from the District Court’s Opinion and Order
affirming the Justice Court’s denial of his motion to dismiss for lack of speedy trial. We
affirm.
¶3 On February 5, 2011, the State charged Jorgenson with driving under the influence
of alcohol. He appeared, pled not guilty, and the Justice Court set a trial date of July 14,
2011. At the time set for jury selection an insufficient number of potential jurors
appeared, and the Justice of the Peace declared a mistrial. The new trial was set for July
28, 2011. The State then requested a continuance because of an unavailable witness and
because of concerns that the same jury pool would be used as in the first attempt at trial.
The Justice of the Peace set a new trial date for October 20, 2011.
¶4 In August 2011 the State filed amended charges. Jorgenson appeared, entered a
plea of not guilty and filed a motion to dismiss for violation of his right to a speedy trial
under § 46-13-401(2), MCA. That section provides:
After the entry of a plea upon a misdemeanor charge, the court, unless good
cause to the contrary is shown, shall order the prosecution to be dismissed,
with prejudice, if a defendant whose trial has not been postponed upon the
defendant’s motion is not brought to trial within 6 months.
2
The Justice of the Peace denied the motion to dismiss, relying upon State v. Strong, 258
Mont. 48, 49,
851 P.2d 415, 416 (1993), concluding that the trial had been set to begin
within six months of the date of the mistrial. In addition, the Justice of the Peace found
that the State did not engage in dilatory conduct bringing the case to trial.
¶5 In November 2011 Jorgenson entered a guilty plea to one of the amended charges,
reserving his right to appeal the speedy trial issue. He filed a timely appeal to the District
Court. The parties completed briefing by September 14, 2012, but it was not until July
2015 that the District Court acted upon Jorgenson’s appeal. At that time the District
Court affirmed the Justice Court’s denial of Jorgenson’s motion to dismiss, and he
appeals.
¶6 In Strong, this Court clearly approved the position of the American Bar
Association’s Project on Minimum Standards for Criminal Justice that the speedy trial
calculation begins to run anew as of the date of a mistrial. State v. Sanders,
163 Mont.
209, 214,
516 P.2d 372, 375 (1973). Here, the pending trial date at the time of
Jorgenson’s motion to dismiss was within six months of the date of the mistrial.
Therefore, there was no violation of § 46-13-401, MCA, or of Jorgenson’s right to a
speedy trial. Contrary to Jorgenson’s argument on appeal, Strong does not make the
resetting of the speedy trial clock upon a mistrial contingent upon charges being refiled
within the original six month window. We agree with the District Court that the State
demonstrated good cause for any delay.
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¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law.
¶8 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
Justice Laurie McKinnon, concurring.
¶9 I agree with the Court’s decision and rationale to affirm the denial of Jorgenson’s
motion to dismiss for a violation of § 46-13-401, MCA. I write separately only to
emphasize that it was not necessary for the Justice of the Peace, in the first instance, to
declare a mistrial. A court’s sua sponte declaration of a mistrial is warranted only after a
jury is “impaneled and sworn” in a jury trial, or in a bench trial, “after the first witness is
sworn but before a judgment as to guilt or innocence is reached.” Section 46-11-503,
MCA. As neither occurred here, it was not necessary to declare a mistrial and the matter
could simply have been continued. A finding of good cause could have been made based
upon the failure of a sufficient number of jurors to appear when summonsed and the
necessity for obtaining a different jury pool.
/S/ LAURIE McKINNON
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