State v. Child – 2009 MT 148
Following a Motion to Dismiss filed by Child, the State submitted its response brief more than ten days later, but still within the timeline for a response brief set by the Omnibus Order’s briefing schedule. Child argued that under Rule 2 of the Uniform District Court Rules, the “failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken.” The District Court agreed, and dismissed the case. (Although irrelevant for the current analysis, it’s worth noting that the order was later rescinded). Because such an argument would render the dates set in the Omnibus Order meaningless, SCOMOT ruled that the Uniform Rules had no application and reversed the order of dismissal.
Justice Nelson wrote a concurrence chastising the State for failing to cite any authority in its three paragraph opening brief, and noting how often the State requests that SCOMONT dismiss a defendant’s appeal for failure to do the same. He goes on to address the District Court’s attempt to rescind its dismissal order noting that “[w]hen a criminal case is dismissed with prejudice, the dismissed information is no longer effective against the defendant and cannot be reinstated.” Child, ¶ 18, citing State ex. rel. Torres v. District Court, 265 Mont. 445 (1994).
