ORDER
On June 19, 2000, this Court issued its opinion in the above-entitled case.
On June 29, 2000, Respondent State of Montana filed its petition for rehearing requesting reconsideration of only Issue 11(c) set forth at ¶¶ 123 through 132. On July 3, 2000, Appellant Susan Hocevar filed her petition for rehearing requesting reconsideration of only Issue 1 set forth at ¶¶ 22 through 29. On July 10, 2000, Appellant Susan Hocevar filed her objections to the State's petition for rehearing; on July 18, 2000, the State filed its objections to Appellant's petition. The Court having considered the petitions and responses,
IT IS ORDERED that ¶ 127, ¶ 128 and ¶ 129 are hereby changed to reflect the correct plural term "same transactions" found in the joinder statute § 46-11-404(1), MCA. Specifically, ¶ 127 of this Court's June 19, 2000, Opinion should read as follows:
¶ 127. . . . Having successfully argued to the District Court that the Wesley counts and the Mathew counts are part of the "same transactions" for purposes of joinder. . . .
Paragraph 128 of this Court's June 19, 2000, Opinion should read as follows (text of footnote 5 not shown here but to remain in Opinion):
¶ 128 Montana's joinder statute, § 46-11-404, MCA, provides in relevant part:
Joinder of offenses and defendants. (1) Two or more offenses or different statements of the same offense may be charged in the same charging document in a separate count, or alternatively, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same transactions connected together or constituting parts of a common scheme or plan.
The language of the joinder provision is broader than the "same transaction" language used in the former prosecution context. That is, the joinder provision does not limit joinder to charges arising out of the "same transactions connected together or constituting parts of a common scheme or plan5," but also includes charges which are of the "same or similar character." The dissent points to this distinction in concluding that the charges against Susan were joined, not because they were part of the "same transactions," but because they were of "same or similar character" in that they involved similar victims, similar locations, and were offenses of a similar nature.
Paragraph 129 of this Court's June 19, 2000, Opinion should read as follows:
¶ 128. . . . The State's position throughout this prosecution was that all the counts were part of the "same transaction" as that term is used in Title 46 and, in particular, the joinder statute, § 46-11-404(1), MCA. Thus, although § 46-11-404(1), MCA, does allow joinder of offenses of "same or similar character," as well as those arising out of the "same transactions," that distinction is irrelevant here because the State's theory has always been that conduct attributable to MSBP is part of the "same transaction."
IT IS FURTHER ORDERED that in all other respects, this Court's Opinion of June 19, 2000, shall remain the same and Respondent State of Montana's petition for rehearing and Appellant Susan Hocevar's petition for rehearing are DENIED. Let remittitur issue forthwith.
The Clerk of Court is directed to mail a true and correct copy of this order to all counsel of record.
DATED this 31st day of August, 2000.
W. WILLIAM LEAPHART, JIM REGNIER, JAMES C. NELSON
Justice Terry N. Trieweiler concurs as follows:
The State contends that the concurring opinion's reliance on § 46-11-503(1)(b) is misplaced because it overlooks the remainder of § 46-11-503, MCA and in particular, subsection (2)(b)(iv). However, I conclude that subsection is inapplicable for two reasons. First, it applies to offenses which are part of the same transaction, and I do not agree that the offenses at issue were part of the same transaction. Second, the exception relied on by the State applies only to prosecutions which are barred by subsection (1)(d). It is my conclusion that this prosecution was barred by subsection (1)(b). That subsection does not require that the "conviction" be for the same offense that the State seeks to subsequently try. For these reasons, I join in the order denying both parties' Petition for Rehearing.
Dated this 31st day of August, 2000.
TERRY N. TRIEWEILER
Justice William E. Hunt, Sr., joins in the foregoing concurrence.
WILLIAM E. HUNT, SR.
Chief Justice Jean A. Turnage and Justice Karla M. Gray would grant the State's motion.