State v. Cline, 2013 MT 188 (July 15, 2013) (5-2) (Morris, J., for the majority; Cotter, J. & McKinnon, J. dissenting)
Issue: Whether the state charge of theft by common scheme was an “equivalent offense” barred by the double jeopardy statute.
Short Answer: No.
Facts: Cline stole numerous firearms and other merchandise from his employer, Bob Ward & Sons, between December 2010 and June 2011. The United States charged him with theft of firearms and possession of stolen firearms. Cline pled guilty to these charges.
Procedural Posture & Holding: Montana charged Cline with theft of the firearms and other merchandise. Cline moved to dismiss on the basis that the charge violated his statutory double jeopardy right. The state amended its complaint to include only the non-firearms merchandise. Cline argued this did not cure the defect. The district court denied Cline’s motion to dismiss. Cline entered a conditional guilty plea that preserved his right to appeal. The Supreme Court affirms.
Reasoning: When conduct constitutes an offense within a different jurisdiction, prosecution in that other jurisdiction bars a subsequent prosecution in Montana for an offense arising out of the same transaction. § 46-11-504(1), MCA. Montana provides greater protection from double jeopardy than does the U.S. Constitution. Montana applies a three-part test to determine whether double jeopardy bars a subsequent prosecution. The Court looks at (1) whether the defendant’s conduct was an equivalent offense in both jurisdictions, (2) whether the first prosecution resulted in a conviction, and (3) whether the second jurisdiction based the subsequent prosecution on an offense arising from the same transaction. All three elements must be met to bar a subsequent prosecution. The state admits the second and third elements. The issue is whether Cline’s conduct constitutes an equivalent offense in both jurisdiction.
The first element requires that the same conduct subject a defendant to the possibility of being convicted of an “equivalent offense” in each jurisdiction. The two offenses need not to be identical to be equivalent. Cline’s conduct resulted in two offenses: theft of firearms, and theft of non-firearms. The firearms theft is an equivalent offense, as both state and federal law make it a crime. When another jurisdiction could prosecute two offenses but only prosecutes one, subsequent prosecution of both offenses is barred in Montana. But double jeopardy does not bar prosecution of two separate offenses when a defendant’s conduct is an offense in one jurisdiction and a separate offense in another jurisdiction.
Cline’s theft of non-firearms did not form the basis for his conviction for theft of firearms. Montana’s double jeopardy law focuses on whether a defendant has already been put in jeopardy for an offense equivalent to the offense with which Montana now charges him.
Cline asks this Court to overrule its interpretation of § 46-11-504, MCA, as the legislature did not include the equivalent offense requirement in the statute. The Court declined to do so in Cech, and declines to do so here.
Justice Cotter’s Dissent (joined by Justice McKinnon): Justice Cotter would hold that double jeopardy bars the state prosecution of Cline for non-firearms theft based on the plain language of the statute. The Court has erroneously interpreted the statute as requiring an “equivalent” offense. The plain language of the statute bars Montana’s subsequent prosecution.