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State v. Schwictenberg4/27/1989
Submitted on Briefs March 23, 1989
The State of Montana appeals the dismissal of a criminal proceeding against the defendant, Joel Schwictenberg, in the District Court for the Fourth Judicial District, Missoula County We reverse
The defendant was charged in justice court with failure to stop at the scene of an accident, in violation of § 61-7-104, MCA, and driving under the influence of drugs or alcohol in violation of § 61-8-401, MCA. At trial, the defendant was found guilty of failing to stop at the scene of an accident, but not guilty of driving under the influence of drugs or alcohol. The defendant then appealed his conviction to the District Court
At a combined arraignment and omnibus hearing, the defendant pled not guilty and was released on his own recognizance. Later, he agreed to plead guilty to a violation of § 61-7-104, MCA, or failure to stop at the scene of an accident, in exchange for certain recommendations by the prosecution. A plea bargain agreement was entered into between the defendant, his counsel, and the Deputy County Attorney Craig Friedenauer. At the change of plea hearing, Mr. Friedenauer and a legal intern, Robert Long, appeared on behalf of the State. It was at that hearing that the District Court judge dismissed the proceeding against the defendant after the following exchanges:
"THE COURT: State versus Joel Schwictenberg. You are Mr Schwictenberg?
"MR. SCHWICTENBERG: Correct
"MR. FRIEDENAUER: This is Robert Long, an intern in our office
"THE COURT: Long, go get a jacket. The calendar says you are going to change your plea now; is that true?
"MR. SCHWICTENBERG: Correct
"THE COURT: Is this leaving the scene of the accident?
"MR. SCHWICTENBERG: Yes
"THE COURT: How do you wish to plead to that?
"MR. SCHWICTENBERG: Guilty
"THE COURT: Is this in accordance with a plea bargain in this case?
"MR. SCHWICTENBERG: Yes
"THE COURT: What's the plea bargain? Has anything pressured you into entering a plea, other than the plea bargain?
"MR. SCHWICTENBERG: Just strictly the plea bargain
"THE COURT: In exchange for this, you are going to enter a plea, correct?
"MR. SCHWICTENBERG: Correct
"THE COURT: Have any other promises or threats been made to you?
"MR. SCHWICTENBERG: No
"THE COURT: Is it true that on or about the 15th of April, 1988, you were driving a Dodge pickup — wait a minute. I'm trying to find somewhere where it tells what you were charged with in practical terms
"MR. FRIEDENAUER: Do you want a copy of the Complaint?
"THE COURT: There is a Complaint in here that charges him with DUI. This is nuts. The case is dismissed."
The Minutes and Note of Ruling for that date further state:
"Deputy County Attorney Craig Friedenauer and the Defendant with his counsel, Rebecca Summerville, came into Court
"Defendant's motion to change his plea was heard and granted Thereupon by permission of the Court and consent of the County Attorney the defendant withdrew his plea of `Not Guilty' and entered his plea of `Guilty as charged in the Complaint.'
"The Court was advised that a Plea Bargain Agreement had been entered into and is on file herein. Upon questioning, the Court was unable to find the appropriate documents in the Court file and therefore dismissed the case with prejudice."
Following the State's appeal of the dismissal, the judge issued an order stating that he had ins
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