Paralegal Mark Anthony Given has spent four years hand collecting every winning criminal case in the history of the Montana Supreme Court. A Montana Criminal Defense Attorney can find here in 15 minutes what would take days or even weeks to locate. This is a sample of the over 1,000 available winning cases, the rest will be available soon via pay site.

Monday, June 30, 2008

judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated

207 Mont. 483, 676 P.2d 168
Supreme Court of Montana.
STATE of Montana,
v. Stephen E. FARRELL, Defendant and Appellant.
No. 82-391.
Submitted Sept. 29, 1983.
Decided Jan. 17, 1984.
Defendant was convicted in the District Court of the First Judicial District, in and for the County of Lewis and Clark, Gordon R. Bennett, J., of theft of public assistance funds and sentenced to ten years in prison, service of that term being suspended on condition that he make restitution of funds illegally obtained and penalty thereon, that he reimburse court for expenses incurred by his attorney and that he undergo treatment for his alcohol problem, and defendant appealed. The Supreme Court, Gulbrandson, J., held that: (1) there was substantial credible evidence of false statements made by defendant to obtain welfare assistance; (2) jury was properly instructed on elements of theft; (3) instruction on lesser included offense of misdemeanor theft was properly refused; (4) judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated by suspended ten-year sentence.
Affirmed in part and vacated and remanded in part.

Wednesday, June 25, 2008

toll on equitable grounds the one-year time bar contained in § 46-21-102, MCA

2008 MT 226
GEORGE H. DAVIS,v.
STATE OF MONTANA,
Did the District Court correctly deny Davis’s motion to toll on equitable grounds the one-year time bar in § 46-21-102, MCA, so that Davis could file a petition for post-conviction relief?
Although the District Court provided alternative rationales for its ruling, it ultimately decided Davis’s motion solely on the basis that it lacked subject matter jurisdiction. In light of our decision and its changes to the law regarding the one-year time bar contained in § 46-21-102, MCA, we deem it appropriate to remand this matter to allow the District Court to consider in the first instance Davis’s motion to toll on equitable grounds the one-year time bar contained in § 46-21-102, MCA. The District Court must determine whether the failure to toll on equitable grounds would work “‘a clear miscarriage of justice, one so obvious’” that the imposition of the time bar would compromise the integrity of the judicial process. State v. Redcrow, 1999 MT 95, ¶ 34, 294 Mont. 252, ¶ 34, 980 P.2d 622, ¶ 34 (quoting Gray, 274Mont. at 1, 908 P.2d at 1352).
Reversed and remanded.

Tuesday, June 24, 2008

Illegal Sentence, restitution and recoupment cannot stand

207 Mont. 483, 676 P.2d 168
Supreme Court of Montana.
STATE of Montana, Plaintiff and Respondent,
v.
Stephen E. FARRELL, Defendant and Appellant.
No. 82-391.
Submitted Sept. 29, 1983.
Decided Jan. 17, 1984.
Defendant was convicted in the District Court of the First Judicial District, in and for the County of Lewis and Clark, Gordon R. Bennett, J., of theft of public assistance funds and sentenced to ten years in prison, service of that term being suspended on condition that he make restitution of funds illegally obtained and penalty thereon, that he reimburse court for expenses incurred by his attorney and that he undergo treatment for his alcohol problem, and defendant appealed. The Supreme Court, Gulbrandson, J., held that: (1) there was substantial credible evidence of false statements made by defendant to obtain welfare assistance; (2) jury was properly instructed on elements of theft; (3) instruction on lesser included offense of misdemeanor theft was properly refused; (4) judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated by suspended ten-year sentence.
Affirmed in part and vacated and remanded in part.
Due process requires only that
indigency or poverty not be used as the touchstone for
imposing the maximum allowable punishment.

Thursday, June 19, 2008

Sentencing error: $85 fee to the local community service program

2008 MT 208
STATE OF MONTANA,v.
JERRY GENE VanWINKLE, JR.,
The issue on appeal is whether the District Court imposed an illegal sentence when it ordered VanWinkle to pay an $85 fee to the local community service program as a condition of his deferred imposition of sentence?
We conclude that Condition No. 13—requiring VanWinkle to pay an $85 fee to the local community service program—is not statutorily authorized and, therefore, is illegal. As a result, we hold the District Court imposed an illegal sentence when it ordered VanWinkle to pay an $85 fee to the local community service program as a condition of his deferred imposition of sentence. Accordingly, we reverse the District Court’s imposition of Condition No. 13 and remand this case with instructions to the District Court to strike the condition from VanWinkle’s sentence.
Reversed and remanded for further proceedings consistent with this Opinion.

Tuesday, June 17, 2008

Alcohol Prohibition Sentencing error

State v. Holt
332 Mont. 426, 139 P.3d 819
Mont.,2006.
Prohibiting defendant from possessing or consuming alcohol was not condition that could be imposed as part of suspended sentence; and

Thursday, June 12, 2008

Santobello Error

2008 MT 201
STATE OF MONTANA,v.
DUSTIN DUMONT RAHN,
The dispositive issue is whether the District Court abused its discretion in ruling the State of Montana did not breach the plea agreement.
Allowing the State to make a “miscarriage of justice” argument on remand via Sullivan’s letter and testimony—the very evidence by which it breached the plea agreement—would itself be a miscarriage of justice, because it would effectively deny Rahn any remedy for the State’s breach.
Reversed and remanded for resentencing by a different judge consistent with this opinion.

Wednesday, June 11, 2008

guilty pleas were entered without counsel and without a valid waiver

2008 MT 193
WILLIAM M. HALLEY,v.
STATE OF MONTANA,
Did the District Court err in denying Halley’s Petition for Post-Conviction Relief?
Halley was deprived of his constitutional right to counsel during critical stages of the criminal proceeding. Craig, 274 Mont. at 148, 906 P.2d at 688.
L astly, as Halley’s guilty pleas were entered without counsel and without a valid waiver of counsel, his pleas are invalid and must be vacated. State v. Browning, 2006 MT 190, ¶ 15, 333 Mont. 132, ¶ 15, 142 P.3d 757, ¶ 15.
While a district court has discretion to appoint, or refuse to appoint, substitute counsel after an initial Gallagher inquiry and hearing, if required, it does not have discretion to ignore a defendant’s allegations of ineffective counsel and refuse to conduct an inquiry. In the case before us, the District Court abused its discretion in failing to comply with the Gallagher guidelines when presented with a claim of ineffective counsel and a request for substitute counsel. It further erred in failing to inquire adequately whether Halley’s waiver of his right to counsel and request to represent himself was voluntarily, knowingly and intelligently made.
As a result, the District Court’s Opinion and Order Denying Petitioner’s Petition for Post-Conviction Relief is based on incorrect conclusions of law.

Tuesday, June 10, 2008

Peremptory challenge for cause error

2008 MT 197
STATE OF MONTANA,v.
JOHN BRAUNREITER,
We address only the District Court’s denial of Braunreiter’s challenge for cause of a potential juror.
The District Court abused its discretion when it denied Braunreiter’s challenge for cause of prospective juror Kremer. Braunreiter removed Kremer with a peremptory challenge and exhausted his peremptory challenges. We reverse the judgment and remand for a new trial. Robinson, @7.

Thursday, June 05, 2008

alcohol and gambling conditions were excessive

2008 MT 192
STATE OF MONTANA,v.
CHRIS LESSARD,
We conclude that the alcohol and gambling conditions were too much, that no conditions would be too little, and that the drug-testing condition was just right. Accordingly, we reverse the District Court’s imposition of Conditions 9 and 20. In addition, we reverse Condition 10’s alcohol-testing requirement, but we affirm Condition 10’s drug-testing requirement. We remand this matter to the District Court with instructions to strike the illegal conditions from Lessard’s sentence.
Affirmed in part, reversed in part, and remanded with instructions

No explanation for harsher sentence

2003 MT 253
STATE OF MONTANA,v.
TIMOTHY T. HALL,

The issues on appeal are as follows:
1. Did the District Court err in denying Hall’s pre-trial motion to suppress evidence?
2. Did the District Court err in denying Hall’s proposed jury instructions?
3. Did the District Court err in denying Hall’s motion for a directed verdict on the
close of evidence? Was there sufficient evidence to support the convictions for theft?
4. Did the District Court violate Hall’s due process rights by punishing him for going
to trial, when the sentence given was harsher than that offered before trial?
We affirm the convictions and remand for re-sentencing.
Although the District Court noted that Hall posed a substantial danger to the public
if he was not incarcerated for a substantial period of time, it did not explain why the sentence
was more onerous than the sentence offered before trial.
When the District Court failed to specifically justify having the eleven-year sentence run consecutively rather than
concurrently with the forgery sentence, it failed to satisfy the Baldwin standard which requires an explanation for imposing a sentence more harsh than that offered in plea negotiations.
The convictions are affirmed, and the matter is remanded for re-sentencing.

Tuesday, June 03, 2008

Ineffective assistance of counsel remand

2001 MT 210
STATE OF MONTANA,v.
CRAIG WILLIAM FRAZIER

1. Did the District Court have jurisdiction to set conditions for future probationary
sentencing and to change Frazier's sentences from consecutive to concurrent after
revocation of their suspension?
2. Did the District Court abuse its discretion by commenting on Frazier's criminal
propensities in the disposition order?
3. Did the District Court err by failing to inquire whether Frazier received effective
assistance of counsel during the revocation and resentencing proceedings?
Due to the dearth of evidence regarding the attorney client
relationship in the record, we cannot reach the substance of Frazier's claim of
ineffective assistance of counsel on appeal.
Remanded for resentencing in accordance with this opinion.

Monday, June 02, 2008

"extraordinary relief" habeas granted

2001 MT 214

KIELY SCHRAPPS,v.
MIKE MAHONEY
OPINION AND ORDER
Kiely Schrapps, appearing pro se, petitions for rehearing regarding our denial by order filed September 18, 2001, of his petition for "extraordinary relief." In our earlier order, we noted that Schrapps' petition did not specify the type of extraordinary relief he was seeking and observed that his options would be habeas corpus or postconviction relief.
We concluded that, if the petition was for habeas relief, such relief was not available. We also concluded that, if the petition was for postconviction relief, that relief was not available
because it was time-barred under § 46-21-102, MCA. We denied and dismissed the
petition for extraordinary relief on that dual basis.
Schrapps' petition for rehearing raises arguments relating only to the postconviction
relief portions of our earlier order. The State has not responded and the time for doing so has passed. Based on a matter that came to light on review of our earlier order, we
conclude Schrapps' petition for rehearing must be granted in part.
Prior to 1997, § 46-21-101, MCA, permitted a petition for postconviction relief to be
filed with the district court that imposed the sentence or directly with this Court. See § 46-
21-101, MCA (1995). As a result of a petitioner's ability to file directly in this Court, we commonly looked to the substance of an inmate petitioner's claim in, for example, a
habeas petition and, in the event habeas relief was not available, we "deemed" the petition one for postconviction relief and proceeded to resolve it on that basis as well. We did so for reasons of judicial economy.
In 1997, the Montana Legislature amended § 46-21-101, MCA, by deleting a
postconviction petitioner's right to file such a petition with this Court. Notwithstanding,
we inadvertently continued to follow our traditional practice of deeming an inmate petition
one for postconviction relief if the substance of the claims fit, or might fit, within such
relief, and resolved them within the original proceeding here.
It is now clear to this Court that the 1997 amendment to § 46-21-101, MCA, removed
our authority to resolve under our original jurisdiction issues cognizable only as
postconviction claims. In other words, we lack jurisdiction to do so under § 46-21-101,
MCA. In future, if inmate petitions are for habeas relief or other relief properly before this
Court as an original proceeding, we will address and resolve them accordingly. To the
extent such petitions include claims cognizable, or potentially cognizable, only pursuant to
postconviction proceedings, we will direct the Clerk of this Court to forward them for
filing in the district court that imposed the sentence, pursuant to § 46-21-101, MCA, with
a filing date identical to the date on which the petition was filed with this Court.
THEREFORE,
IT IS ORDERED that Schrapps' petition for rehearing is GRANTED IN PART;
IT IS FURTHER ORDERED that the portions of our order of September 18, 2001,
discussing or addressing petitions for postconviction relief in any way or manner were
void ab initio and, as a result, they shall be, and are hereby, deleted therefrom; and
IT IS FURTHER ORDERED that the dispositive portion of our earlier order shall be
amended to state: "IT IS ORDERED that Schrapps' request to be allowed to proceed in
forma pauperis is GRANTED, but his petition for habeas corpus relief is DENIED and
DISMISSED."
IT IS FURTHER ORDERED that the Clerk shall forward a copy of Schrapps' original
petition, together with a copy of our September 18, 2001 order and this Opinion and
Order, to the Clerk of the Fourth Judicial District Court, Missoula County, with
instructions that the petition be filed in that court for proceedings on any claims
cognizable as claims for postconviction relief, with a filing date of September 4, 2001.
The Clerk is directed to mail a true copy of this Opinion and Order to all counsel of record and to Kiely Schrapps personally.
DATED this 29th day of October, 2001.
/S/ KARLA M. GRAY