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State v. Later9/17/1993
Submitted on Briefs April 1, 1993.
After trial in the Fifth Judicial District Court, Madison County, Montana, a jury found the defendant, Rick Later, guilty of misdemeanor official misconduct and acquitted him of six other charges. The District Court imposed a fine of $350 and pursuant to § 45-7-401(4), MCA, concluded that defendant Rick Later had permanently forfeited his office of sheriff of Beaverhead County and the office was declared vacant. We reverse.
The dispositive issue on appeal is whether the trial court can essentially "amend" the information with a jury instruction at the close of appellant's case-in-chief.
The standard of review for discretionary trial court rulings is whether the trial court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604.
On January 3, 1992, defendant was charged with seven criminal charges, including felony theft and the charge with which he was convicted, that being misdemeanor official misconduct. Defendant had worked in law enforcement in Beaverhead County from 1972 on and was sheriff from 1980 until his conviction on May 29, 1991. The State's motion to change the place of trial was granted and the case was tried in Madison County rather than Beaverhead County.
Count VII of the Information alleged that the defendant had committed official misconduct in violation of § 7-4-2511, MCA, and § 7-32-2144, MCA, when he failed to remit to Beaverhead County his reimbursement warrants for mileage received from the Montana Board of Crime Control.
The two statutes referred to in Count VII provide in pertinent part:
(2) No salaried county officer may receive for his own use any fees, penalties, or emoluments of any kind, except the salary as provided by law, for any official service rendered by him. Unless otherwise provided, all fees, penalties, and emoluments of every kind collected by a salaried county officer are for the sole use of the county and must be accounted for and paid to the county treasurer as provided by subsection (1) and credited to the general fund of the county.
Section 7-4-2511(2), MCA.
(1) A sheriff delivering prisoners at the state prison or a juvenile correctional facility or mentally ill persons at the Montana state hospital or other mental health facility receives actual expenses necessarily incurred in their transportation.
Section 7-32-2144(1), MCA.
When jury instructions were being settled in this case, counsel for the State conceded that §§ 7-4-2511 and 7-32-2144, MCA, had been cited in error and indeed, did not apply to the appellant's conduct under Count VII. The State asserted that the mistake in the statutory citations aside, the information provided appropriate notice to the appellant. The State then offered an instruction citing a portion of § 7-32-2143, MCA, which the State had decided was the statute applicable to the appellant's conduct.
The District Court found that although §§ 7-4-2511 and 7-32-2144, MCA, were mistakenly cited as the underlying offenses which formed the basis of the appellant's official misconduct, the statute outlining official misconduct was properly cited and the technical requirements of the charge were satisfied. It noted that although the information was "less than perfect," it did give the defendant notice of what he was charged with and how and why he was charged. The trial court then accepted the State's proposed instruction which quoted the excerpt below from § 7-32-2143, MCA.
Jury Instruction No. 16, submitted by the State, reads as follows:
Montana law
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