State v. Allen, 2016 MT 185 (Aug. 2, 2016) (Rice, J.) (5-0, aff’d)
Issue: (1) Whether the district court by denying Allen’s motion to dismiss multiple charges of violating an order of protection pursuant to § 46-11-410(2); and (2) whether the district court by denying Allen’s motion to dismiss multiple charges of violating an order of protection on double jeopardy grounds.
Short Answer: (1) No, and (2) this issue was not preserved for appeal.
Facts: Allen sent 35 messages to his ex-girlfriend, BD, in a two-hour period on day in September 2014. BD had an order of protection against Allen, and alerted the police to the messages.
The state charged Allen with 35 counts of violating an order of protection. Allen moved to dismiss 34 of the counts, arguing they were a continuing course of conduct rather than a series of individual crimes.
Procedural Posture & Holding: The district court denied Allen’s motion to dismiss, and Allen entered into a plea agreement under which the state dropped all charges and Allen pled guilty to one count of felony stalking, reserving his right to appeal the denial of his motion. Allen appeals, and the Supreme Court affirms.
Reasoning: (1) “When the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense.” MCA § 46-11-410(1). “A defendant may not, however, be convicted of more than one offense if … the offense is defined to prohibit a continuing course of conduct and the defendant’s course of conduct was interrupted, unless the law provides that the specific periods of conduct constitute separate offenses.” MCA § 46-11-410(2)(e). The statute criminalizing the violation of an order of protection, § 45-5-626 MCA, is not defined to prohibit a continuing course of conduct. State v. Strong, 2015 MT 251. Therefore, the state may prosecute a defendant with more than one offense.
(2) Allen made a “passing reference” to double jeopardy in his briefing to the district court, but did not develop the argument. Therefore, his constitutional claim is not preserved for appellate review.