State v. Bertolino9/30/2003
Submitted on Briefs: November 26, 2002
Nicole Bertolino appeals her conviction and sentence for driving while under the influence entered in the Fifth Judicial District Court, Beaverhead County, on June 3, 2002. We reverse.
We restate the issues on appeal as follows:
1. Did the District Court err when it denied Bertolino's motion to dismiss for lack of a speedy trial in the Justice Court?
2. Did the District Court err when it did not grant Bertolino's motion to dismiss due to the Justice of the Peace's failure to recuse herself?
Because we reverse the District Court's denial of Bertolino's motion to dismiss, we do not address the second issue.
Factual and Procedural Background
On December 31, 2000, Nicole Bertolino (Bertolino) was charged with misdemeanor DUI. On February 2, 2001, she entered a not-guilty plea and on March 21, 2001, an omnibus hearing was held. At the hearing, Justice of the Peace Joan A. Eliel set the trial date for July 13, 2001. Judge Eliel also ordered the production of evidence by April 20, 2001, and set a May 4, 2001, deadline for filing a "jury waiver" if Bertolino wanted to proceed with a non-jury trial. Bertolino filed nothing in response to these deadlines.
The State, on July 3, 2001, moved to vacate and reset the trial date because the Beaverhead County Attorney was obligated to be at a meeting in Helena on the day of the trial. The County Attorney had attempted to contact Bertolino's counsel on three separate occasions to no avail. On July 10, 2001, Judge Eliel sent a letter to Bertolino's counsel advising him of the State's motion and requiring the jury waiver to be filed by July 13, 2001.
Although Bertolino never provided a jury waiver, a non-jury trial was held on August 29, 2001, before Justice of the Peace, Candy Hoerning. Bertolino, through her attorney, did not give an opening statement and did not present any evidence or testimony in support of her case. Instead, she presented the court with a Motion to Dismiss because Bertolino had not been brought to trial within six months of entering her plea on February 2, 2001, as required by § 46-13-401(2), MCA. The court denied the motion, indicating that any delay caused in the matter was due to Bertolino and her attorney. Bertolino appealed to the Fifth Judicial District Court, Beaverhead County, and on December 27, 2001, again filed a Motion to Dismiss pursuant to § 46-13-401(2), MCA. As further cause for dismissal, Bertolino asserted that Judge Hoerning improperly sat on the matter and should have recused herself because she had previously seen the prosecution's file for Bertolino's case when she was the secretary to the County Attorney, prior to being appointed as Justice of the Peace.
The District Court denied Bertolino's motion to dismiss on March 21, 2002, and on March 25, 2002, Bertolino waived her right to a jury trial. On May 23, 2002, Bertolino entered a guilty plea to driving under the influence . The District Court adopted the Justice Court's judgment and stayed its execution pending an appeal to this Court by Bertolino. Bertolino appeals.
Standard of Review
Whether Bertolino's right to a speedy trial has been violated is a question of law, and we will review the District Court's legal conclusions to determine whether the interpretation of law is correct. State v. Chesarek , 1998 MT 15, 9, 287 Mont. 215, 9, 953 P.2d 698, 9 (citing State v. Keating (1997), 285 Mont. 463, 471, 949 P.2d 251, 256; State v. Foshee (1997), 282 Mont. 326, 331, 938 P.2d 601, 604).
Discussion
Did the District Court err when it d
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