Double jeopardy Montana habeas corpus law

No. 05-617 2006 MT 240 JASON LEE LOTT v. STATE OF MONTA
In light of the writ’s history and purpose, as well as Montana’s constitutional guarantee in Article II, Section 19, that the writ of habeas corpus shall never be suspended, we conclude that, as applied to a facially invalid sentence—a sentence which, as a matter of law, the court had no authority to impose—the procedural bar created by § 46-22-101(2), MCA, unconstitutionally suspends the writ. We hold that incarceration of an individual pursuant to a facially invalid sentence represents a "grievous wrong," Brecht, 507 U.S. at 637,113 S. Ct. at 1721, and a "miscarriage of justice," Perry, 232 Mont. at 462, 758 P.2d at 273, warranting habeas corpus relief.

Confrontation Clause violation

No. 05-308 2006 MT 258
STATE OF MONTANA v. GLEN DALE PARKER,
We therefore conclude that Parker’s constitutional right to confront the witnesses against him was violated when the tape of Kratz’s statement to police was delivered to the jury. We further conclude, pursuant to Van Kirk, that a reasonable possibility exists that the delivery of Kratz’s statement to the jury room contributed to Parker’s conviction. Parker is therefore entitled to a new trial.

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Old Montana Winning Cases

State v. Kellogg, 14 Mont. 451, 36 P. 1077 Mont. 1894. June 04, 1894 The judgment of conviction in this case was based upon the judgment of the district court in the case of the state board of medical examiners against this defendant, wherein his license was revoked, as aforesaid. As the judgment of the district court in said case, revoking defendant's license, has been reversed, the judgment of conviction in this case must necessarily be reversed, for the reason that there is nothing to support it. Judgment reversed .

Defective Indictment

Territory v. Tunnell, 4 Mont. 148, 1 P. 742 Mont. Terr. (1881)

Where a statement in the instruction is that “the defendant admits the shooting and killing as charged in the indictment,” when the record admission is that “the shot he fired killed the deceased at th e time and place alleged in the indictment,” such instruction is misleading and prejudicial in its character, and is error. For the above reason, and for the one assigned in the case of Territory v. Edmonson, ante, 738, the judgment of the lower court is reversed.

Warrantless Arrest

State v. Ellington, No. 05-567, 2006 MT 219 (September 6, 2006). Warrantless arrest. Police obtained a search warrant to search Stacy Wizenburg’s (Wizenburg) car based on suspicion that she was engaged in the distribution of dangerous drugs. Detective Swandal observed Ellington leave the casino and approach the driver’s side window of Wizenburg’s car. Ellington was standing by Wizenburg’s car and talking with its occupants as Detective Swandal approached the car to serve the warrant. Ellington stepped away from Wizenburg’s car and began walking toward the casino when he saw Detective Swandal approaching. Detective Swandal stopped Ellington and informed him that he was detaining Ellington pending a drug investigation involving Wizenburg’s car. An officer frisked Ellington for weapons, handcuffed him, and placed him in the backseat of Swandal’s patrol car. Officers did not discover any weapons or contraband on Ellington during the frisk. When police removed handcuffs at police station they discovered small bag of meth. These facts fail to establish probable cause to arrest. We thus conclude that Detective Swandal arrested Ellington without probable cause. The discovery of the contraband occurred, however, only after the officers had arrested Ellington and transported him to the Law and Justice Center. We therefore hold that the District Court erred when it denied Ellington’s motion to suppress. Reversed and remanded.

instruction is misleading and prejudicial

Territory v. Tunnell, 4 Mont. 148, 1 P. 742 Mont.Terr. 1881. Where a statement in the instruction is that “the defendant admits the shooting and killing as charged in the indictment,” when the record admission is that “the shot he fired killed the deceased at the time and place alleged in the indictment,” such instruction is misleading and prejudicial in its character, and is error. For the above reason, and for the one assigned in the case of Territory v. Edmonson, ante, 738, the judgment of the lower court is reversed.

Robbins v. State, 310 Mont. 10, 50 P.3d 134 Mont.,2002. Following affirmance of his convictions for deliberate homicide and robbery, 292 Mont. 23, 971 P.2d 359, defendant petitioned for postconviction relief. The District Court, Eighth Judicial District, Cascade County, David Cybulski, J., denied petition. Defendant appealed. The Supreme Court, Terry N. Trieweiler, J., held that: (1) error in jury selection process denied defendant constitutional right to impartial jury; (2) substantial change in law after defendant's convictions made “law of the case” doctrine inapplicable; (3) defendant's statutory argument encompassed constitutional argument; and (4) violation of defendant's right to impartial jury required retroactive application of LaMere decision establishing errors in jury selection process as per se basis for reversal. Reversed and remanded.

State v. Good, 309 Mont. 113, 43 P.3d 948 Mont.,2002. March 28, 2002 held that: (1) defendant was not denied his right to a speedy trial by 362-delay attributable to state; (2) trial court abused its discretion in denying for-cause challenges to two prospective jurors; (3) structural error occurs if a district court abuses its discretion by denying a challenge for cause to a prospective juror, defendant uses peremptory challenge to remove disputed juror, and defendant exhausts all of his or her peremptory challenges, overruling State v. DeVore, 1998 MT 340, 292 Mont. 325, 972 P.2d 816; State v. Williams, 262 Mont. 530, 866 P.2d 1099; and (4) improper denial of for-cause challenges in present case was structural error requiring reversal. Affirmed in part, reversed in part, and remanded for new trial.

State v. Anderson, 35 Mont. 374, 89 P. 831 Mont. 1907. An instruction that important and striking contradictions in the statements of the different witnesses who testified at the trial should be attributed to deliberate perjury, rather than to the fault of inattention or defect of memory, and that coincidence in all points of the stories of different witnesses always engenders a suspicion of practice and concert, and gives rise to the imputation of perjury, was error.

State v. Cook, 42 Mont. 329, 112 Pac. 537. 1907 Treating the evidence in the record in the light most favorable to the state, it fails to show that defendant is guilty of the crime charged. It would seem that the controversy between the prosecuting witness and this defendant is one for adjustment in a civil suit. The criminal court is not the proper forum for settling disputed questions relating to the title to property, and it ought not to be converted into an agency for the collection of debts. However, if the defects in the record as now presented arise from an erroneous theory adopted by the prosecution, the state should have an opportunity to present its case, if any it has, fully and fairly; and to that end we shall not go farther than to remand the cause for a new trial, or for such other proceedings as the state may take, not inconsistent with the views herein expressed. The judgment and order are reversed, and the cause is remanded for further proceedings. Reversed and remanded.

Montana Winning Criminal Cases

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State v. Schwarz, No. 05-370 (2006 MT 120) (June 1, 2006)(Youth under age of sixteen does not have the capacity or the authority to relinguish her parents privacy rights).
State v. Frickey, No. 05-420 (2006 MT 122) (June 1, 2006)(Reversing DUI Intoxilyzer 5000 must be laboratory certified every 365 days)
State v. Mann, No. 04-137, (2006 MT 116) (June 1, 2006)(District Court violated Mann's constitutional right to appear at all critical stages of the proceedings by excluding him from pre-trial discussions).
State v. Rensvold, No. 05-543 (2006 MT 146)(June 27, 2006)(Affirming district court dismissal where state failed to show up in Justice Court then filed appeal citing wrong statutory authority).
State v. Golie, No. 05-002, (2006 MT 91)(May 2, 2006)(District Court abused its discretion in denying Golie's challenege for cause.
State v. Cesnik, 329 Mont. 63 (2005)(Sentencing court may not punish a defendant for failing to accept responsibility for his crime when that defendant has maintained his innocence and has a right to appeal.
State v. Erikson, 329 Mont. 192 (2005)(Offense of criminal possession of dangerous drug has no indentifiable victim, thus, by statute, the defendant could not be ordered to pay restitution).
State v. Hirt, 329 Mont. 267 (2005)(Restitution ordered w/o statutory requirements, 2. Once sentence imposed court cannot modify w/o statutory authority 3. Cannot reserve right to change or modify senetence later; 3. cannot oreder indigent defendant to pay attorney fees and court cost).
State v. Brockway, 328 Mont. 5 (2005)(District Court erred in concluding it lacked jurisdiction over misdemanor PFMA).
State v. Samples, 328 Mont. 242 (2005)(District Court erred in failing to address all the constitutional issues raised by pro-se petitioner).
State v. Meyer, 328 Mont. 247 (2005(District Court erred in failing to instruct the jury of lesser included offense of unlawful restraint).
State v. Honey, 327 Mont. 49 (2005)(District Court erred in imposition of restitution under 46-18-201 MCA (2001), in the absence of a a deferral or suspension of of all or part of defendnat's sentence).
State v. Lamere, 327 Mont. 115 (2005)(Ineffective assistance of counsel during voir dire).
State v. Cesnik, 329 Mont. 63 (2005)(Sentencing court may not punish a defendant for failing to accept responsibility for his crime when that defendant has maintained his innocence and has a right to appeal.
State v. Erikson, 329 Mont. 192 (2005)(Offense of criminal possession of dangerous drug has no indentifiable victim, thus, by statute, the defendant could not be ordered to pay restitution).
State v. Hirt, 329 Mont. 267 (2005)(Restitution ordered w/o statutory requirements, 2. Once sentence imposed court cannot modify w/o statutory authority 3. Cannot reserve right to change or modify senetence later; 3. cannot oreder indigent defendant to pay attorney fees and court cost).
State v. Brockway, 328 Mont. 5 (2005)(District Court erred in concluding it lacked jurisdiction over misdemanor PFMA).
State v. Samples, 328 Mont. 242 (2005)(District Court erred in failing to address all the constitutional issues raised by pro-se petitioner).

State v. Tracy, 327 Mont. 220 (2005)(Credit for time served for concurrent DOC & MDOC & house arrest).
State v. Becker, 326 Mont. 364 (2005)(Ineffective assisistance of counsel failure to object to double jeopardy).
State v. Rave, 326 Mont. 398 (2005)(Boykin violation).
State v. Graham, 326 Mont. 110 (2005)(Invalid Search warrant).
State v. Anyan, 325 Mont. 245 (2005)(No-Knock Search warrant unreasonable).
State v. Dewitt, 324 Mont. 39 (2004)(Information multiplitious).
State v. Snell. 324 Mont. 173 (2004)(DUI PAST TEST Inadmissable).
Oatman v. State, 324 Mont. 472 (2004)(Fedearl & State time credit).
State v. Kougl, 323 Mont. 6 (2004)(Ineffective assistance of counsel failure to ask for accomplice testimony jury instruction).
State v. Aceto, 323 Mont. 24 (2004)(District Court erred when without warning , excluded defendant from courtroom from remained of trial, and refused to allow his return).
State v. McDonald, 322 Mont. 31 (2004)(Restitution Order vacated).
State v. Henderson, 322 Mont. 69 (2004)(Ineffective assistance of counsel).State v. Evert, 322 Mont. 105 (2004)(Resentencing invalid; remanded to reconsider post conviction petition).
State v. Hill, 322 Mont. 206 (2004)(Count I retained by plea agreement failed to state necessary elements of the offense).
State v. Kroll, 322 Mont. 294 (2004)(District Court erred in impossing conditions of sentence not reasonably related to the underlying offense).
State v. Smith, 322 Mont. 466 (2004)(Defendant held an expectation of privacy in the bathroom of apartment).
State v. Heath, 321 Mont. 280 (2004)(Failing to set the amount, method, and time of each payment to the victim did not comply with requirements of 46-18-244(1) MCA).
State v. Eixenberger, 321 Mont. 298 (2004)(District Court did not specify amount of restitution and PSI failed to document victims loss and the defendant's ability to pay restitution).
State v. Ruiz, 321 Mont. 357 (2004)(District court abused its discretion in denying directed verdict of acquittal on the charge of assisting unqualified applicant to obtain a resident licence (because undercover Fish & Game Warden was a resident)).
Thurston v. State, 321 Mont. 418 (2004)(Ineffective assistance of counsel remand).
State v. Mikesell, 321 Mont. 462 (2004)(Defendant is entitled to have restitution order supported by evidence and determination of ability to pay restitution).State v. Stone, 321 Mont. 489 (2004)(District Court exceeded statutory parameters of 45-8-211(2)(a), MCA (2001)(when sentencing him to five years on each count of animal cruelty).
State v. May, 320 Mont. 116 (2004)(DUI-Private citizen arrest lacked probable cause; all evidence must be suppressed).
State v. Heath, 320 Mont. 211 (2004)(Illegal sentence).
State v. Herd, 320 Mont. 490 (2004)(District Court abused its discretion under 46-18-202(1), MCA, when it imposed a 40 year restriction on the defendant's ability to lawfully rive a motor vehicle).
State v. Dahlin, 319 Mont. 303 (2003)($500 rental fee remanded on stolen car conviction).
State v. Mingus, 319 Mont. 349 (2003)(Sentencing court must give credit for each day of incarceration against both the sentence and the fine imposed; no finding of ability to pay).
State v. Pope, 318 Mont. 383 (2003)(DNA-Actual Innocence; AEDPA "complete miscarriage of justice; faulty jury instruction).
State v. Tyson, 318 Mont. 465 (2003)(Insanity determination ran longer than 90 days requireing dismissal of criminal charges).
State v. Rinkenbach, 318 Mont. 499 (2003)(Improper Fine, restitution & ability to pay finding).
State v. Strauss 317 Mont. 1 (2003)(district court erred in sentencing additional ten years for weapons enhancement).
State v. Garcia, 317 Mont. 73 (2003)(District court abused its discretion in denying continuance).
State v. LaMere, 298 Mont. 358(improper jury summoning process).
State v. Dunkerson, 317 Mont. 228 (2003)(District court erred in specifying amount and payment of restitution).
State v. Finley, 317 Mont. 268 (2003)(district court erred in accepting counsels representation that defendant admitted allegations; 2 courts failure to insure Boykin mandates).
State v. Reiner, 317 Mont. 304 (2003)( DUI-no probale cause to stop).
State v. Hall, 317 Mont. 356 (2003)(Improper jury instruction; 2 failed to explain sentence outside plea agreement).
State v. Bertolino, 317 Mont. 453 (2003)(Speedy Trial violation).
State v. Flanagan, 361 Mont. 1 (2003)(Restitution order without findings).
Walker v. State, 316 Mont. 103 (2003)(Cruel & unussaul punishment at MSP).
State v. Williams, 316 Mont. 140 (2003)(District court erred in not awarding or denying "street time credit.").
State v. Runs Above, 316 Mont. 421 (2003)(District court abused its discretion in allowing deputy's hearsay testimony).
Hope v. State, 316 Mont. 497 (2003)(Ineffective assistance of counsel; failed to file pretrial suppression motions).
State v. Jefferson, 315 Mont. 146 (2003)(Ineffective assistance of counsel).
State v. Van Dort, 315 Mont. 303 (2003)(Confession while in handcuffs and after Miranda fruit of the poisonous tree).
State v. Crawford, 315 Mont. 480 (2003)(DUI Breath Test inadmissable).
State v. Kvislen, 314 Mont. 176 (2003)(Prior DUI w/o counsel inadmissable).
State v. Fisher, 314 Mont. 222 (2003)(jail time credit).
Neal v. State, 314 Mont. 357 (2003)(Did not refuse DUI breath test and entitled to costs).
State v. Nolan, 314 Mont. 371 (2003)(Mistaken release from jail NOT bail-jumping)-; improper line of questioning).
State v. Martinez, 314 Mont. 434 (2003)(suppress all evidence gathered after a result of interrogation subsequent to an invesigatory traffic stop).
State v. Hamilton, 314 Mont. 507 (2003)(warrantless search of lost wallet).
State v. Kaufman, 313 Mont. 1 (2002)(Traffic Stop: Officer harbored no suspicion of wrong-doing within totality of cirmcumstances to justify further investigation by the time he pulled the vehicle over on the highway).
State v. Debus, 313 Mont. 57 (2002)(Insufficient evidence of felony theft).
State v. Welling, 313 Mont. 67 (2002)(No extension of deferred sentence).
State v. Lacasella, 313 Mont. 185 (2002)(License plate in windshild lawful; unlawful investigatory stop).
Watson v. State, 313 Mont. 209 (2002)(Ineffective assistance of counsel warrants evidentiary hearing).
State v. Shreves, 313 Mont. 252 (2002)(District court violated Shreves' right against self incrimination by basing its 100 year sentence in large part on Shreves' refusal to admit his crime and show remorse).
State v. Fisher, 313 Mont. 274 (2002)(officeers investigatory stop unreasonable).
State v. Rardon, 313 Mont. 321 (2002)(Plea agreement violated).
State v. McLeod, 313 Mont. 358 (2002)(Due process right to be sentenced upon accurate information; remanded for determination of abilty to pay fine).
State v. Meeks, 312 Mont. 126 (2002)(illegal sentence).
Gilbert v. State, 312 Mont. 189 (2002)(Court cannot reserve the right change sentence at a later time).
State v. Howard, 312 Mont. 359 (2002)(Uncounseld prior conviction enhancement unlawful).
State v. Rice, 312 Mont. 458 (2002)(Burned of proof shifted).
State v. Tweed, 312 Mont. 484 (2002)(Failed to file appeal; failed to allow withrawl of guilty plea).