November 19, 2013
DAVID GARY BURTON, Petitioner,
THE MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY, THE HONORABLE KATHY SEELEY, PRESIDING JUDGE, Respondent.
The petitioner, David Gary Burton, by counsel, has filed on this date an "Application for Emergency Writ of Supervisory Control and Stay Pending Resolution." Burton asks that we issue a writ of supervisory control, directing the respondent District Court to vacate a suppression hearing now scheduled for November 22, 2013, and the jury trial now scheduled for January 13, 2014. He also seeks an order directing the respondent District Court to dismiss the criminal charges currently pending against him on the grounds that allowing the case to go forward would violate his fundamental right to be free from double jeopardy. We conclude that the exercise of supervisory control is not warranted.
Burton has filed a motion in the District Court, seeking to dismiss the State's charges against him on double jeopardy grounds. The District Court has not yet ruled on this motion and should be given the opportunity to do so. Should the District Court grant the motion, there would be no basis for the exercise of supervisory control. In the event the court denies the motion, Burton will have the option of filing an interim appeal for the sole purpose of considering the merits of his double jeopardy claim. State v. Duncan, 2012 MT 241, ¶ 2, 366 Mont. 443, 291 P.3d 106. Therefore, Burton has not established that appeal is an inadequate remedy, as M. R. Civ. P. 14(3) requires.
We further note that the District Court scheduled the impending suppression hearing on September 6, 2013, and has presumably set aside a good part of the day to hear evidence and entertain the motion. In that jeopardy does not attach at a pre-trial hearing on a motion to suppress, there is no reason to stay the suppression proceedings pending the outcome of the motion to dismiss on double jeopardy grounds. Accordingly,
IT IS HEREBY ORDERED that Burton's application for writ of supervisory control and stay of proceedings is DENIED.
The Clerk of this Court shall provide immediate notice of this Order to all counsel of record, and to the respondent District Court.