State v. Violette, 2015 MT 67 (Feb. 24, 2015) (McKinnon, J.) (5-0, appeal dismissed)
Issue: Whether state was required to elect between two offenses to avoid violating defendant’s protection from double jeopardy.
Short answer: No.
Appeal dismissed without prejudice
Facts: State charged Violette with aggravated assault and elder abuse.
Procedural Posture & Holding: Violette moved lower court for order that state had to elect between those offenses, arguing that prosecution for both offenses violated his protection from double jeopardy and Montana’s “multiple charges” statute, 46-11-410, MCA. District court denied motion, holding that elder abuse is neither lesser-included offense of aggravated assault nor specific instance of aggravated assault. Violette appeals, arguing that elder abuse is specific instance of aggravated assault, and the Supreme Court dismisses the appeal without prejudice and remands for trial.
Reasoning: Double jeopardy cannot attach until defendant is tried and convicted. Same for multiple charges statute. State can charge more than offense from same transaction, but defendant may not be convicted of more than one offense from same transaction. No trial here, so no double jeopardy.