Ilegal sentence enhancement

2000 MT 364
303 Mont. 386
15 P. 3d 944
THE STATE OF MONTANA,v.
JAMES GUSTAFSON

1. Did the District Court err when it denied Gustafson's motions to exclude
testimony regarding the events surrounding his arrest?
2. Did the District Court err when it enhanced Gustafson's sentence for use of a
weapon?
Gustafson was convicted of and sentenced for felony assault based on his use of a
weapon, and received an additional sentence for the use of a weapon during the
commission of an offense pursuant to the weapon enhancement statute. The State
concedes that our holding in Guillaume applies to Gustafson's case. This Court held in Guillaume that application of the weapon enhancement statute to a felony assault
conviction violates the prohibition against double jeopardy found at Article II, Section 25 of the Montana Constitution. State v. Guillaume, 1999 MT 29,, 293 Mont. 224, 975 P.2d 312, . Therefore, we conclude, as we did in State v. Aguilar, 1999 MT 159, 10, 295 Mont. 133, 983 P.2d 345, that the illegal sentence enhancement should
be stricken and the judgment amended to that limited extent.
The judgment of the District Court is affirmed in part and reversed in part, and this case is remanded to the District Court for further proceedings consistent with this opinion.