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State v. Moga11/23/1999
hat because the defendant had failed to bring this claim in the district court, he was barred from bringing it on appeal. Larson, 240 Mont. at 206, 783 P.2d at 417-18.
Moreover, there are important factual differences between this case and Larson. In the present case, the first Jefferson County information was filed on April 7, 1997. Subsection (8) of § 45-1-205, MCA, provides that a prosecution is commenced when an indictment is found or an information or complaint is filed. The running of the statute of limitations is tolled when a prosecution is pending against the offender for the same conduct. Section 45-1-206(3), MCA.
We conclude that the Jefferson County prosecution against Moga was commenced and began to toll the statute of limitations when the original information was filed on April 7, 1997, well within the statute of limitations for misdemeanors. The amendment of the Jefferson County information did not retroactively deprive the District Court of jurisdiction based on the statute of limitations for misdemeanor offenses. We hold that the Fifth Judicial District Court did not err in denying Moga's motion to dismiss because of time limitations.
Issue 3
Did the amended information filed in Jefferson County comply with the law?
Section 46-11-205, MCA, provides at subsection (1) that a court may allow an information to be amended, provided that the motion is filed in a timely manner, states the nature of the proposed amendment, and is accompanied by an affidavit stating facts that show the existence of probable cause to support the charge as amended. A copy of the proposed amended information must be included with the motion to amend the information. Moga contends on appeal that neither an affidavit nor a copy of the proposed amended information accompanied the State's motion to amend.
Although Moga claims to have raised this issue before the District Court, our review of the record reveals that he did not do so. His objections immediately prior to trial, which he identifies as the time he raised this issue, were instead addressed to the timeliness of the misdemeanor DUI charge. We conclude that this issue has been waived by Moga's failure to raise it in the trial court. See State v. Herrera, 1998 MT 173, , 289 Mont. 499, , 962 P.2d 1180, .
We affirm the judgments of the First and Fifth Judicial District Courts.
J. A. TURNAGE
We concur:
KARLA M. GRAY, JIM REGNIER, TERRY N. TRIEWEILER, W. WILLIAM LEAPHART
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