------
In Propria Persona
------.
------, Idaho
IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ------
STATE OF IDAHO,)
Plaintiff/Appellee,)CASE NO. CR-99-7486
)
vs.)
)APPELLANT’S BRIEF
------,)
Defendant/Appellant.)
______)
COMES NOW the Defendant /Appellant ------, (hereafter “Defendant”) and hereby submits his brief in support of his appeal in Case No CR 99-7486.
FACTS
On September 7, 1999 a criminal complaint was filed against the Defendant in the instant Case No. CR 99-7486 alleging a violation of the ------County Building Code.
On August 12, 1999, in Case Number CR-M99-6675, another Criminal Complaint was filed against the Defendant. Complainant ------, being first duly sworn on oath, complained that the Defendant did commit the crime of FAILURE TO OBTAIN A BUILDING PERMIT PRIOR TO CONSTRUCTION, a Misdemeanor, ------County Building Code Ordinance 221-A, Section 106.1 of the 1997 Uniform Building Code, committed as follows ; That the Defendant, ------, on or about June 1999, and thereafter, in the County of ------, State of Idaho, did willfully and knowingly begin construction of a Single Family Residence, located at ------, ------, Idaho 83833, without obtaining a building permit.
The Complaints in both cases CRM 99-7486 and CR 99-6675 use identical wording except for the dates. The complaint in Case No. CR 99-07486 which was filed on September 7, 1999 reads: “on or about the 12th day of August 1999, and thereafter” and the complaint in Case No. CRM99-6675 which was filed on August 12, 1999 reads: “on or about June 1999, and thereafter.”
In the instant case, with regard to the complaint, a warrant was requested and subsequently issued on September 7, 1999 by order of Magistrate J--- P--- L---. Bail was fixed in the aforementioned Warrant of Arrest at $3,000 which coincidently was the approximate cost that Defendant was being required to pay for the building permit.
The Defendant’s initial appearance, in the instant case, was held before Judge E--- M-----, on June 26, 2000.
A jury trial was held before Judge E----- M------in Case No. CRM 99-6675 on September 6, 2000. On Defendant’s Motion for Directed Verdict of Acquittal pursuant to Rule 29 the case against the Defendant was dismissed.
On September 8, 2000, without leave of the Court, an Amended Complaint was filed by Deputy Prosecuting Attorney A—T-- in the instant case as follows; FAILURE TO OBTAIN A BUILDING PERMIT PRIOR TO CONSTRUCTION, a Misdemeanor, I.C. subsec. 39-4111, 39-4105, 39-4109, ----- County Building Code Ordinance 221-A Section 106.1 of the 1997 Uniform Building Code, committed as follows : That the defendant ------, on or about the 12th day of August, 1999, and thereafter, in the County of -----, State of Idaho, did willfully and knowingly continue construction of a Single Family Residence…”
On October 2, 2000, Defendant filed with the Court: “MOTION TO DISMISS AND MOTION TO ENLARGE TIME AND REQUEST FOR HEARING”. Defendant also filed with the Court on October 2, 2000,: “AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS AND MOTION TO ENLARGE TIME”. Defendant’s Motion to Dismiss was based upon the grounds of former jeopardy.
Defendants Motion to Dismiss was denied by Judge B--- E--- W---for the following reasons as set forth on the face of the Notice of Hearing which was filed into the Court record on October 12, 2000; “Motion To Dismiss not timely filed and have no hearing dates and times prior to trial date.”
On October 4, 2000 the State filed with the Court a “MOTION & ORDER TO RELEASE EXHIBITS” in Case No. CRM 99-6675. The aforementioned document stated that; “This motion is made by and for the reason that the charges in Case No. CR M99-7486 arose from the same incident and the State intends to submit the exhibits at the Jury Trial scheduled for November 13, 2000 in front of Judge W----.”
On October 10, 2001, the Defendant filed “OBJECTION TO PLAINTIFF’S MOTION TO RELEASE EXHIBITS” wherein the Defendant objected to State’s “MOTION TO RELEASE EXHIBITS” on the grounds that their being submitted at Defendant’s trial in the instant case would constitute former jeopardy.
At a pretrial conference held before Judge B--- W--- on October 13, 2000, the Defendant argued that the charges in this case should be dismissed on grounds of former jeopardy (Tr. pg. 28,LL.28-pg. 29,LL.1) and at the time the court noted that the Defendant “had another similar charge (Tr. pg.28, LL. 16-17) that was just recently dismissed.” The Defendant asserts, in one of his many issues on appeal, that the Court ruled in error in denying his motions to dismiss for former jeopardy.
The Defendant also filed: “PETITION FOR LEAVE TO APPEAL FROM INTERLOCUTORY ORDER” on October 27, 2000, wherein he sought relief from the District Court because he believed he had been denied his fundamental right to present motions and his right to have his motions heard in this case.
At a jury status call hearing held before the Honorable Judge B----W---- on November 13, 2000, in the instant case, the Court was notified by STATE’s attorney that the aforementioned STATE’S “ MOTION TO RELEASE EXHIBITS “ was noticed for a hearing on December 13th, 2000, in Case No. CRM 99-6675, but proceeded to take up the matter even though proper notice was not given to the Defendant that there was to be a hearing on the matter and the issue of whether the exhibits from the first case would be released for use as evidence in the instant case was not properly before the Court. An “ORDER TO RELEASE EXHIBITS” was subsequently filed into the record of this case on November 14, 2000.
On November 17, 2000, the Defendant filed in the instant case: “MOTION TO DISMISS” wherein he objected to the amended complaint being filed without STATE’S attorney having requested leave of the Court or without any order granting leave to STATE’S attorney being issued by the Court.
Also, therein, the Defendant objected to the “AMENDED COMPLAINT” filed in this case on the grounds that it was filed over a year after the original Complaint was filed in violation of Idaho Code 19-403 which states that “A prosecution for any misdemeanor must be commenced by the filing of the Complaint…within one year after its commission.”
Defendants “MOTION TO DISMISS” also raised objection to the action in this case and argued, by way of the brief filed in support of his motion to dismiss, that said action was in violation of Idaho Code 19-3506 due to the first case (CRM 99-6675) having been dismissed.
On November 16, 2000, a jury trial was held in this matter and the Defendant was found guilty. The Defendant appeals his conviction on the following grounds;
ISSUES ON APPEAL
1)Whether Defendant’s statutory right to not be placed in former jeopardy (I.C. 19-3506) was violated and whether the dismissal of Defendant’s previous case (No. CRM 99-6675) should have been a jurisdictional bar against a subsequent prosecution for the same offense.
2)Whether Defendant’s right to due process was violated when the trial court ruled on a motion filed and set for hearing in his previously dismissed case wherein the STATE was requesting that the evidence and exhibits be released so as to be used in the instant case and subsequently ordered that the same be released over the Defendant’s objection.
3)Whether the trial court abused its discretion and committed error prejudicial to the Defendant when it refused to give to the jury Defendant’s proposed jury instruction regarding statutory exemption to the building permit requirement.
4)Whether Defendant was required by law to contract with a political subdivision of the STATE OF IDAHO known as ----County to have a public inspection of his private dwelling located in ----, Idaho.
ISSUE NO. 1
The Defendant asserts on appeal that his statutory right against being placed in former jeopardy, I.C. 19-3506, was violated and that the trial court abused its discretion in denying the Defendants many motions to the Court for dismissal of the charges on the grounds of former jeopardy
ARGUMENT
Idaho Code 19-3506 reads as follows; “Effect of dismissal as bar. An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor…”
At a trial held on September 6, 2000, in --- County Court Case No. CRM99-6675, on motion by the Defendant, said case was dismissed by the Court and an Order was issued, dismissing the action for the same offense for which the Defendant was tried again in the instant case.
With regards to I.C. 19-3506, it has been decided that “Like the double jeopardy clauses, this section is intended to protect individuals against repeated charges and trials for the same offense… a bare charge and dismissal is sufficient to act as a bar.” State v Badow’s Inc., 729 P2d 433 (Ct: App.1986) See also State v Barter, 80 Idaho 552 (“Offense is a misdemeanor, and dismissal of prosecution for that offense would be bar to any subsequent prosecution for same offense”).
In State v Badow’s Inc., supra, it was also decided that: “Where the contractor violated an ordinance which required him to obtain a permit to install non-code electrical improvements, the failure to obtain a permit was a single-event offense, and because the charge had previously been dismissed, the city was barred by this section from renewing the charge with respect to the same installation.”
The Court further stated in Barlow’s that: “In determining whether a subsequent charge involves the same offense as a previously dismissed charge, the court generally applies a ‘same evidence or same transaction’ test. The first approach focuses on whether the same evidence is required to support a conviction for each offense charged. The same transaction test focuses upon the behavior of the defendant that led to the prosecution.”
At Defendant’s pretrial conference held in this matter on October 13, 2000, the Court noted that the Defendant: “ had another similar charge that was recently dismissed…” (Tr. pg. 28, LL. 16-17) At the same hearing STATE’s attorney W---concurred with the Defendant’s assertion here that the complaints in both cases were the same – just simply with a different date on them. (Tr. pg. 29, LL. 18-25) The Court also took notice of the fact that the only difference in the two offenses charged was the use of different dates in the charging documents. (Tr. pg. 42, LL. 19-20)
At his trial the Defendant motioned the Court to dismiss the case, based in part, on former jeopardy grounds (Tr. pg. 69, LL. 17 – pg. 74, LL. 5) The Court subsequently noted that the Defendant’s argument for dismissal was “ well taken ” and “ that the evidence would be virtually the same in both cases, the same witnesses, the same general evidence would be involved in both cases “ (Tr. pg. 76, LL. 9-13) but denied the Defendant’s motion to dismiss on grounds of former jeopardy.
The Defendant made numerous objections at his trial concerning the evidence from the first trial being used at his trial in this case and asserted that the STATE was attempting to try him a second time for the same offense. (Tr. pg. 122, LL. 4-11; Tr. pg. 123, LL. 24 – pg. 124, LL. 3 and Tr. pg. 133, LL. 19-23)
In light of the fact that the STATE used the same evidence from the Defendant’s previously dismissed case in the instant case and in light of the fact that the instant case is based upon the same behavior of the Defendant that led to his prosecution in the previously dismissed case, the Court’s dismissal of the first case should have been a jurisdictional bar to the action in the instant case.
The Defendant further asserts that since the trial complaint in his previously dismissed case reads: “ That the defendant ---, on or about June, 1999, andthereafter,…”, that such wording would preclude subsequent prosecution for charges alleging that: “ on or about the 12th day of August 1999…” The words “ and thereafter “ should create a bar to the prosecution in the instant case since the 12th day of August, 1999, would be included in the “ thereafter “ wording of the trial complaint in the previously dismissed case.
The trial Court concurred with this assertion and reasoning by the Defendant when, at his sentencing hearing, it stated that: “ the way the amended complaint was worded charging Mr. --- with a violation of this code and ordinance on the 12th day of August, 1999, and thereafter; that the State would not be able to file additional criminal charges for any days after August 12, 1999, because the jury found him guilty of this as a total. And although the statute does seem to indicate that charges can be filed for each day of a violation, with the way that charge has been worded – in my opinion I don’t think that other charges can be filed after that for this particular structure. “ (Tr. pg. 266, LL. 9-19)
ISSUE NO. 2
Defendant asserts on appeal that his right to due process was violated when the trial court in this case ruled on post trial motions filed in his previous case which were scheduled to be heard at a later date. Said motions concerned the release of exhibits and evidence that were presented in his previously dismissed case which the STATE intended on presenting in the instant case. The Defendant further asserts that said violation of the Defendant’s right to due process was prejudicial to the Defendant’s case.
ARGUMENT
On October 10, 2000, the STATE filed with the Court: “MOTION & ORDER TO RELEASE EXHIBITS” in Case No. CRM 99-6675 and on October 10, 2000, the Defendant filed: “OBJECTION TO PLAINTIFF’S MOTION TO RELEASE EXHIBITS”.
At a jury status call hearing held in this matter on November 13, 2000, with the Honorable Judge B--- W--- presiding, the Court was notified by STATE’s attorney W--- that there was a hearing scheduled on STATE’s “ MOTION TO RELEASE EXHIBITS “ in the previously dismissed case. (Tr. pg. 42, LL. 20-21) At that time also, the STATE’s attorney stated to the Court that without the evidence from the first case, it didn’t believe it would have “ as good of a case “ and also that the STATE would not proceed to trial without the evidence from the first case. (Tr. pg. 43, LL. 10-12)
The Court was also notified by the Defendant that he had objected to the STATE’s motion to have the exhibits released from the first case.(Tr. pg. 43, LL. 25 – pg. 44, LL. 1) The next day there was filed into this record an Order releasing said exhibits and subsequently said exhibits were presented as evidence against the Defendant at his trial. The Defendant, at his trial, objected on several occasions to the evidence from the first case being entered into evidence by the STATE.(Tr. pg. 122, LL. 4-11; Tr. pg. 123, LL. 24 – pg. 124, LL. 3 and Tr. pg 133, LL. 19-23)
The Defendant contends here that he had a fundamental right to have an opportunity to be heard on the motions that were properly noticed and before the Court in the first case. In Holden v. Hardy, 169 U.S. 366, 389 the Court held that; “ the necessity of due notice and an opportunity for being heard is described as among the ‘ immutable principles of justice which inhere in the very idea of free government…’” See also Powell v. Alabama, 287 U.S. 45 at 68.
The Defendant further contends that it was improper for the Court in this case to take up and rule on motions that were noticed for hearing in another case and not properly noticed and before the Court in the instant case.
ISSUE NO. 3
The Defendant asserts on appeal that the trial court committed error prejudicial to the Defendant and his case when it refused to give a requested jury instruction concerning the statutory farm exemption to the building permit requirement.
ARGUMENT
At the Defendants trial in this matter the Defendant requested that the Court give to the jury an instruction regarding the statutory farm exemption to the building permit requirement found in I.C. 39-4103. (Tr. pg. 242, LL. 24-pg. 243, LL. 4) The trial court denied the Defendant’s request and stated on the record that its reason for doing so was that; “the state code is not covering farms but that does not prohibit the County from regulating those…” (Tr. pg. 243, LL. 5-7) The court further reasoned and stated that; “ If you don’t get a building [permit] for a structure on a farm the State will not come in and cite you for a violation because they have exempted it. But if the County ordinance covers that, then [the] County can come in and cite you for a violation of the County ordinance which has been provided to the Court in which [it] does not exempt farms. “
Idaho Code 39-4103 reads as follows;
“ Scope – Exemptions. – (1) The provisions of this chapter shall apply to all buildings and construction within the state of Idaho, except as otherwise provided in this chapter.
Idaho Code 39-4103 (4) states that; “ Farms, as defined in section 39-4105 (17), Idaho Code shall be exempt from the provisions of this chapter…” Idaho Code 39-4105 (17) defines farms as: “ An agricultural unit of (5) acres or more.”
The amended complaint in this matter alleges a violation of I.C. 39-4111, 39-4105 and 39-4109 and therefore, the Defendant asserts that the exemptions to the building permit requirement found in I.C. 39-4105 would be applicable.
The Defendant respectfully disagrees with the trial court’s opinion (Tr. pg. 243, LL. 5-18) that a county ordinance can supercede and conflict with an existing state law.
The Idaho State Constitution states that: “ Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws. “ Article XII, Section 2, Idaho State Constitution. This has been upheld numerous times by the Idaho Supreme Court. Cf. In re Ridenbaugh, 5 Idaho 371, 375 and State v. Musser, 67 Idaho 214, 219. The --- County Code cannot be stretched beyond the legislative intent in creating and enacting the Idaho Building Code Advisory Act or in its adoption of the Uniform Building Code. The courts have often said that the state of the law in Idaho is the Idaho Code. It has also been held that: “ A municipal corporation possesses only such power as the state confers upon it…”