Submitted on Briefs: March 13, 2013
APPEAL FROM District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 2011-306 Honorable Kathy Seeley, Presiding Judge
For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender
For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General
Leo J. Gallagher, Lewis and Clark County Attorney; Melissa Broch, Deputy County Attorney, Helena, Montana
Brian Morris, Justice
¶1 The State of Montana (State) charged Curtis Cline (Cline) with theft by common scheme, in violation of § 45-6-301(a), MCA. Cline filed a motion to dismiss the charge. Cline argued that the charge violated his right not to be subject to double jeopardy under § 46-11-504, MCA. The District Court denied Cline's motion to dismiss. Cline appeals. We affirm.
¶2 Cline presents the following issue on appeal:
¶3 Whether the theft by common scheme charge subjected Cline to double jeopardy?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Cline stole numerous firearms and other merchandise from his employer, Bob Ward & Sons, between December 2010 and June 2011. T he United States charged Cline with theft of firearms from a federal licensee, in violation of 18 U.S.C. § 922(u), and possession of stolen firearms, in violation of 18 U.S.C. § 922(j). Cline entered a guilty plea to these federal charges.
¶5 The State separately charged Cline with the theft of the firearms and the non-firearm merchandise that Cline had stolen from Bob Ward & Sons. Cline filed a motion to dismiss for violation of his statutory double jeopardy rights. The State amended its complaint to include only the non-firearm merchandise. Cline argued that this amendment did not cure the double jeopardy violation. The District Court denied the motion to dismiss. Cline entered a conditional guilty plea that preserved his right to appeal the District Court's denial of his statutory double jeopardy motion to dismiss.
STANDARD OF REVIEW
¶6 A district court's decision to grant or deny a defendant's motion to dismiss a charge on the basis of double jeopardy presents a question of law that we review for correctness. State v. Neufeld, ...