Submitted on Briefs: April 10, 2013
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-12-214 Honorable Robert L. Deschamps, III, Presiding Judge
For Appellant: Jeffrey T. Renz, University of Montana School of Law, Missoula, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana
Jim Nugent, Missoula City Attorney, Gary L, Hendricks, Deputy City Attorney, Missoula, Montana
LAURIE McKINNON Justice
¶1 The Missoula Municipal Court found John Steven Girard guilty of disorderly conduct, a misdemeanor, in violation of § 45-8-101, MCA. Girard appealed to the Fourth Judicial District Court, Missoula County, which affirmed the conviction. Girard now appeals to this Court. We reverse on the single issue regarding Girard's request for a jury trial.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Girard was cited with disorderly conduct on November 6, 2011. He entered a plea of not guilty. On November 7, the Municipal Court issued a Scheduling Order. Among other things, the Scheduling Order set a hearing for February 15, 2012, "to confirm jury or to enter a change of plea." The order further stated (in large print) that "Defendant and his/her attorney must be present at this hearing. Defendant's failure to appear shall be deemed a waiver of jury and the Court shall set a non-jury trial." Girard signed this document, acknowledging that he had received a copy of it.
¶3 On January 4, 2012, the Missoula City Attorney and Girard's counsel signed an Omnibus Hearing Memorandum and Scheduling Order. In addition to identifying affirmative defenses, discovery requirements, and motions in limine, the memorandum and order specifically stated (in bold print): "The defendant's failure to appear at the final pre-trial hearing will constitute a waiver of jury trial."
¶4 Girard and his attorney both appeared, as required, for the February 15, 2012 hearing. At that time, the Municipal Court set the final pretrial hearing for March 14 and a jury trial for March 15. However, although Girard's counsel appeared for the March 14 hearing, Girard himself did not appear. Girard's counsel advised the Municipal Court that Girard was developmentally disabled and that his disability likely explained his absence from the March 14 hearing. Counsel objected to resetting the case for a nonjury trial. Nevertheless, the Municipal Court deemed Girard's nonappearance as a waiver of his right of trial by jury. The court set another final pretrial hearing for April 10 and a nonjury trial for April 16. The court indicated to Girard's counsel, however, that it would reconsider its decision regarding Girard's waiver if counsel presented evidence of Girard's disability.
¶5 Girard and his counsel appeared for the April 10, 2012 final pretrial hearing. At that time, Girard orally moved to vacate the April 16 bench trial and reset the matter for a jury trial. The Municipal Court denied the motion. The next day, Girard filed a Motion to Reconsider Defendant's Motion to Set Jury Trial. Girard represented that his absence from the March 14 hearing had been due to his developmental disabilities and medical conditions which affected his memory. Girard attached to his motion the affidavit of Rhonda Eickholt, an advanced practice registered nurse in the field of mental health. The affidavit states, in pertinent part:
2. Mr. Girard has been a patient of mine since October 2011.
3. Mr. Girard has a positive history of traumatic brain injury from a severe ...