DUI Independent blood test

2002 MT 29
STATE OF MONTANA, v.
ALLEN FRANCIS MINKOFF.
Minkoffs first issue on appeal is whether the District Court erred in failing to dismiss the charge against him on grounds that his right to have an independent blood test was frustrated when the arresting officer told him a blood test would result in a higher alcohol reading than the breath test. Because we reverse on this issue, we do not reach the other issues Minkoff raises.
We hold, therefore, that the District Court erred in failing to dismiss the charge against Minkoff on grounds that his right to have an independent blood test was frustrated when the arresting officer told him a blood test would result in a higher alcohol reading than the breath test.
Reversed.

Speedy Trial analysis

2003 MT 171
STATE OF MONTANA,v.
CHRISTOPHER JAMES RAY,
1. Was Ray denied his constitutional right to a speedy trial in the District Court?
2. Under § 45-6-204(2)(a), MCA, does the theft of a loaded gun qualify as “armed
with a weapon” for purposes of elevating a burglary charge to aggravated burglary?
Because mere possession of a loaded firearm in the course of a burglary qualifies Ray as armed with a weapon, one of Ray’s convictions for aggravated burglary will stand. The other conviction is reduced to burglary. Further, the District Court is directed to conduct a speedy trial analysis consistent with Bruce and this Opinion.
Affirmed in part and reversed in part and remanded for proceedings consistent with
this Opinion.

Restitution error

2003 MT 123
STATE OF MONTANA,v.
JACK WAYNE FLANAGAN,
We address the following issues:
1. Did the District Court err in making findings based on a presentence investigation
report not offered or admitted as an exhibit?
2. Did the District Court err by giving inadequate reasons for imposing the 10-year
suspended sentence?
3. Did the District Court err in imposing probation conditions with no nexus to the
offense committed?
4. Did the District Court err in imposing restitution as a condition of Flanagan's
suspended sentence?
5. Does the presentence investigation report provide an adequate basis for the
determination of--and did the District Court err in imposing restitution without specifying-- the timing of Flanagan's restitution payments?
6. Did the District Court err in ordering that all of Flanagan's assets in the marital estate and probate estate after his death be used to pay restitution?
With regard to the portion of the sentencing order which requires that any of Flanagan's assets of the marital
estate be used for restitution, the District Court did not evaluate what assets are necessary
for Flanagan to sustain a living; nor did it evaluate whether a joint tenancy in a family home could be lawfully severed in order to satisfy a restitution order. Moreover, in an ordinary probate proceeding, a creditor of the estate may submit a claim pursuant to § 72-3-804, MCA. We are aware of no authority for a claim for restitution to take precedence over the claims of other creditors of an estate.
On remand, the District Court is directed to reconsider and clarify this condition in conjunction with our remand on issue five.

Speedy Trial winner

2003 MT 266
STATE OF MONTANA,v.
NICOLE BERTOLINO,
1. Did the District Court err when it denied Bertolino’s motion to dismiss for lack of a speedy trial in the Justice Court?
2. Did the District Court err when it did not grant Bertolino’s motion to dismiss dueto the Justice of the Peace’s failure to recuse herself?
Because we reverse the District Court’s denial of Bertolino’s motion to dismiss, we
do not address the second issue.
Instead, it only points a finger at Bertolino in an effort to blame her for the failure to try the case in a timely manner.
Under these circumstances, we conclude that the State failed to demonstrate good
cause for the delay, and Bertolino’s motion to dismiss should have been granted.
Accordingly, the judgment of the District Court is reversed, and the charge against Bertolino is dismissed.

Retroactivity parole and probation revocation probable cause hearing

2001 MT 155
OPINION AND ORDER
00-086
STATE OF MONTANA, v
BRYAN GOEBEL,
Conclusion
Consequently, based on both the United States Supreme Court and Montana Supreme
Court precedent outlined above, this Court's interpretation of § 46-23-1012, MCA (1999), as set forth in both Giddings and Goebel may be applied retroactively to all similarly situated individuals because it is a declaration of what the statute meant from the day of its enactment, not just from the date of our decision. In other words, the statute applies to those individuals whose probation or parole was revoked between April 28, 1999, the effective date of § 46-23-1012, MCA (1999), and May 1, 2001, the effective date of § 46- 23-1012, MCA (2001). If, during that time period, the probationer was arrested pursuant to a warrant issued by a judge and the probationer was not afforded a probable cause hearing within 36 hours of the probationer's arrest, then, like Giddings, the District Court did not have jurisdiction to hold a revocation hearing. If, however, the probationer was afforded a probable cause hearing within 36 hours of arrest or the probationer was arrested pursuant to a warrant issued by a probation officer, in which case no probable cause hearing was required, then the District Court did have jurisdiction to hold a revocation hearing.
While Giddings, and others who are similarly situated, were not afforded a hearing pursuant to § 46-23-1012, MCA (1999), and thus the District Court lacked jurisdiction to hold a revocation hearing in their cases, the State may now refile the petition to revoke their probation pursuant to § 46-23-1012, MCA (2001), as long as those probationers were still "under the custody or supervision of the department of corrections" on May 1, 2001.
Therefore,
IT IS ORDERED that except to the extent herein clarified, the parties' petitions for rehearing are denied.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to counsel of record.
DATED this 14th day of August, 2001.

ineffective assistance of counsel post conviction granting new appeal

2007 MT 307
CHESTER LAWRENCE PRICE,v.
STATE OF MONTANA,
Did Price’s appellate defense counsel render ineffective assistance by failing to raise on direct appeal the issue of Price’s absence from numerous in-chambers trial proceedings?
Appellate counsel should have raised the issue on direct appeal, and his failure to do so constituted prejudicial error.
Accordingly, we reverse the denial of the postconviction petition on the grounds discussed herein and remand for entry of an order by the District Court granting Price an opportunity for a new appeal upon this issue. The entry of the order by the District Court will initiate the time and procedural requirements for completion of the appellate process.

Alchohol, casino restriction error, and restitution error

2007 MT 323
STATE OF MONTANA,v.
PENELOPE CELANDINA YOUNG,
Did the District Court impose an illegal sentence by including conditions regarding alcohol and casinos and by ordering a mental health evaluation?
We conclude that the District Court erred in imposing the alcohol and casino restrictions. We remand to the District Court to strike the alcohol and casino restrictions from Young’s sentence.

District Court exceeded its authority, sex offender treatment

2008 MT 43N
STATE OF MONTANA,
v. THOMAS RONALD KNUDSON,
1. Did the District Court err by ordering Knudson to complete sex offender treatment as a condition of parole following revocation of his suspended sentence?
2. Did the District Court abuse its discretion by finding by a preponderance of the evidence that Knudson had committed sexual intercourse without consent while on probation, even though a jury had acquitted him of that charge?
The District Court exceeded its authority under § 46-18-203(7)(a)(iii), MCA (1999), when it conditioned Knudson’s parole eligibility on completion of Phases I and II of the sex offender treatment program at MSP. Accordingly, we remand this case for the limited purpose of striking that condition on Knudson’s parole eligibility.

Suspended sentence revocation error

2007 MT 328
STATE OF MONTANA,
v.
THOMAS E. OIE
Whether the District Court erred in sentencing Oie to serve four years at MSP after revoking his suspended sentence.
§ 61-8-731(5), MCA, governs the imposition of sentence upon the revocation of Oie’s suspended sentence for felony DUI and limits the District Court to either continuing the period of probation or requiring Oie “to serve the remainder of the probation sentence” (emphasis added).
Accordingly, we hold that the District Court erred in sentencing Oie to serve four years at MSP after revoking his suspended sentence and we remand to the District Court for resentencing consistent with this Opinion.
Reversed and Remanded.
/

The District Court erred in denying Deserly’s motion to withdraw his guilty plea.

2008 MT 242
STATE OF MONTANA,v.
CHARLES V. DESERLY,
1. Did the District Court err in denying Deserly’s motion to withdraw his guilty plea?
2. Was the factual basis for Deserly’s guilty plea sufficient?
3. Did Deserly receive ineffective assistance of counsel because his lawyer advised him to enter into a plea bargain that contemplated an illegal sentence?
Because we reverse the District Court’s judgment under Issue 1, we do not address Issues 2 or 3.
Deserly was induced to enter into the plea agreement by a misrepresentation—albeit, one which was unintentional. We conclude, therefore, that Deserly’s guilty plea was not voluntary. Involuntariness constitutes good cause for withdrawal of a plea under § 46-16-105(2), MCA. Lone Elk, ¶ 19. Accordingly, Deserly is entitled to withdraw his guilty plea.
The District Court erred in denying Deserly’s motion to withdraw his guilty plea. We reverse the District Court’s judgment and remand this matter to the court with instructions to grant Deserly’s motion.
Reversed and remanded for further proceedings consistent with this Opinion.

Withdraw guilty plea

2007 MT 40
STATE OF MONTANA, v.GARY GENE FRAZIER, JR.,
Did the District Court err in denying Frazier’s motion to withdraw his guilty plea?
The Justice Court’s interrogation was inadequate to determine whether there was
any factual basis for Frazier’s guilty plea. Since any doubts as to whether a plea was voluntary should be resolved in favor of the defendant, we hold that the District Court erred by not allowing Frazier to withdraw his guilty plea. Therefore, we reverse and remand this matter to the District Court for further proceedings consistent with this Opinion.