P1979
No. 14786
THE STATE OF MONTANA, v.
JAMES LENIHAN,
1. Is the issue raised by defendant properly reviewable
on appeal?
2. Did the District Court err in ordering an indigent
defendant to reimburse the county for attorney fees as part
of a condition of deferred imposition of sentence
"No convicted person may be held in contempt for
failure to repay if he shows that his default was not attributable
to an intentional refusal to obey the order of the
court or to a failure on his part to make a good faith
effort to make the payment." Fuller v. Oregon, 40 L.Ed.2d at
650.
This Court is aware of the financial burden placed on
the counties and the State by the criminal justice system.
We do not disagree with the proposition of reimbursement to
the State. On the contrary, we applaud the trial judge for
his efforts. However, we feel that recoupment provisions
should be made to operate with considerations given to
ability to repay, and in the event of default, the penalty
should be a form of civil liability rather than possible
criminal sanctions. Recoupment is not a magic word, and it
may be possible and desirable to perfect a system outside
that kind of legislation.
The judgment of the deferred imposition of sentence is
remanded to the District Court with instructions to vacate
the repayment of attorney fees condition complained of and
enter its order accordingly.
Wednesday, May 28, 2008
Sentencing restriction nor "reasonably related" to offense
2008 MT 83
STATE OF MONTANA,v.
EUGENE HOWARD ASHBY,
Did the District Court err in forbidding Ashby from consuming or possessing intoxicants and alcohol and from gambling or frequenting casinos?
Having determined that the alcohol restriction is not “reasonably related” to Ashby’s crime of writing bad checks nor is it necessary to promote rehabilitation since Ashby does not have a history of significant or chronic alcohol or drug abuse, we reverse and remand with instruction to the District Court to strike this condition from Ashby’s sentence. However, we affirm the inclusion of the gambling restriction for the reasons set forth above.
STATE OF MONTANA,v.
EUGENE HOWARD ASHBY,
Did the District Court err in forbidding Ashby from consuming or possessing intoxicants and alcohol and from gambling or frequenting casinos?
Having determined that the alcohol restriction is not “reasonably related” to Ashby’s crime of writing bad checks nor is it necessary to promote rehabilitation since Ashby does not have a history of significant or chronic alcohol or drug abuse, we reverse and remand with instruction to the District Court to strike this condition from Ashby’s sentence. However, we affirm the inclusion of the gambling restriction for the reasons set forth above.
Bailey error, no restitution to dismissed counts
2000 MT 100 check
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in
its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in
its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Santobello error - breached plea agreement, specific performance
2001 MT 85
STATE OF MONTANA,v.
DANIEL MUNOZ,
Upon remand, does Munoz have the right to choose the remedy, either specific
performance of the agreement or the right to withdraw his guilty plea, due to the State's breach of the plea agreement.
Further, the state has failed to present one compelling reason why this choice should not rest in the hands of the defendant. Rather, the State focusses squarely and repeatedly on its preferred scenario here, that specific performance is appropriate because the sentencing court is not bound by the State's recommendation--inferring that although the State concededly breached and may be ordered to "perform," Munoz should not be afforded any remedy. We view this particular posture as unpersuasive in light of the "fundamental rights" that are "flouted" by a prosecutor's breach of a plea bargain. See Santobello, 404 U.S. at 267, 92 S.Ct. at 501 (Douglas, J., concurring).
We conclude that, in light of the underlying principles of contract law, a nonbreaching defendant must be afforded the initial right to choose from available remedies where the State breaches a plea agreement. The State must therefore bear the substantial burden, as the breaching party, of demonstrating with clear and convincing evidence that the defendant's choice of remedy would result in a miscarriage of justice. Only upon such a showing may a district court, in its discretion, disallow a defendant's choice of remedy. To the limited extent that our prior decisions in Persak and Rardon conflict with our holding here today, we overrule those cases. We hold that upon remand, Munoz should be granted his chosen remedy of withdrawal of his guilty plea.
Accordingly, we reverse.
STATE OF MONTANA,v.
DANIEL MUNOZ,
Upon remand, does Munoz have the right to choose the remedy, either specific
performance of the agreement or the right to withdraw his guilty plea, due to the State's breach of the plea agreement.
Further, the state has failed to present one compelling reason why this choice should not rest in the hands of the defendant. Rather, the State focusses squarely and repeatedly on its preferred scenario here, that specific performance is appropriate because the sentencing court is not bound by the State's recommendation--inferring that although the State concededly breached and may be ordered to "perform," Munoz should not be afforded any remedy. We view this particular posture as unpersuasive in light of the "fundamental rights" that are "flouted" by a prosecutor's breach of a plea bargain. See Santobello, 404 U.S. at 267, 92 S.Ct. at 501 (Douglas, J., concurring).
We conclude that, in light of the underlying principles of contract law, a nonbreaching defendant must be afforded the initial right to choose from available remedies where the State breaches a plea agreement. The State must therefore bear the substantial burden, as the breaching party, of demonstrating with clear and convincing evidence that the defendant's choice of remedy would result in a miscarriage of justice. Only upon such a showing may a district court, in its discretion, disallow a defendant's choice of remedy. To the limited extent that our prior decisions in Persak and Rardon conflict with our holding here today, we overrule those cases. We hold that upon remand, Munoz should be granted his chosen remedy of withdrawal of his guilty plea.
Accordingly, we reverse.
Friday, May 23, 2008
Ineffective Appellate Counsel
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.
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.
Thursday, May 22, 2008
Probable cause hearing, retroactive applcation of criminal law
2001 MT 155
OPINION AND ORDER
00-086
STATE OF MONTANA, v
BRYAN GOEBEL,
OPINION AND ORDER
On April 26, 2001, we issued opinions in the above entitled cases wherein we held that a probable cause hearing pursuant to § 46-23-1012(4), MCA (1999), is mandatory only when an offender has been arrested pursuant to a warrant issued by a judge.
I. Retroactive application of new judicial rules of criminal procedure
II. Retroactive application of the judicial interpretation of a statute
III. Whether the retroactive application of the newly amended § 46-23-1012, MCA (2001), to Giddings is a violation of the ex post facto clause.
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.
OPINION AND ORDER
00-086
STATE OF MONTANA, v
BRYAN GOEBEL,
OPINION AND ORDER
On April 26, 2001, we issued opinions in the above entitled cases wherein we held that a probable cause hearing pursuant to § 46-23-1012(4), MCA (1999), is mandatory only when an offender has been arrested pursuant to a warrant issued by a judge.
I. Retroactive application of new judicial rules of criminal procedure
II. Retroactive application of the judicial interpretation of a statute
III. Whether the retroactive application of the newly amended § 46-23-1012, MCA (2001), to Giddings is a violation of the ex post facto clause.
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.
Santobello error, specific performance
2001 MT 85
STATE OF MONTANA,v.
DANIEL MUNOZ,
Upon remand, does Munoz have the right to choose the remedy, either specific
performance of the agreement or the right to withdraw his guilty plea, due to the State's breach of the plea agreement /
Further, the state has failed to present one compelling reason why this choice should not rest in the hands of the defendant. Rather, the State focusses squarely and repeatedly on its preferred scenario here, that specific performance is appropriate because the
sentencing court is not bound by the State's recommendation--inferring that although the State concededly breached and may be ordered to "perform," Munoz should not be
afforded any remedy. We view this particular posture as unpersuasive in light of the
"fundamental rights" that are "flouted" by a prosecutor's breach of a plea bargain. See Santobello, 404 U.S. at 267, 92 S.Ct. at 501 (Douglas, J., concurring).
We conclude that, in light of the underlying principles of contract law, a nonbreaching defendant must be afforded the initial right to choose from available remedies where the State breaches a plea agreement. The State must therefore bear the substantial burden, as the breaching party, of demonstrating with clear and convincing evidence that the defendant's choice of remedy would result in a miscarriage of justice. Only upon such a showing may a district court, in its discretion, disallow a defendant's choice of remedy.
To the limited extent that our prior decisions in Persak and Rardon conflict with our holding here today, we overrule those cases. We hold that upon remand, Munoz should be granted his chosen remedy of withdrawal of his guilty plea.
Accordingly, we reverse and remand for further proceedings consistent with this
opinion.
STATE OF MONTANA,v.
DANIEL MUNOZ,
Upon remand, does Munoz have the right to choose the remedy, either specific
performance of the agreement or the right to withdraw his guilty plea, due to the State's breach of the plea agreement /
Further, the state has failed to present one compelling reason why this choice should not rest in the hands of the defendant. Rather, the State focusses squarely and repeatedly on its preferred scenario here, that specific performance is appropriate because the
sentencing court is not bound by the State's recommendation--inferring that although the State concededly breached and may be ordered to "perform," Munoz should not be
afforded any remedy. We view this particular posture as unpersuasive in light of the
"fundamental rights" that are "flouted" by a prosecutor's breach of a plea bargain. See Santobello, 404 U.S. at 267, 92 S.Ct. at 501 (Douglas, J., concurring).
We conclude that, in light of the underlying principles of contract law, a nonbreaching defendant must be afforded the initial right to choose from available remedies where the State breaches a plea agreement. The State must therefore bear the substantial burden, as the breaching party, of demonstrating with clear and convincing evidence that the defendant's choice of remedy would result in a miscarriage of justice. Only upon such a showing may a district court, in its discretion, disallow a defendant's choice of remedy.
To the limited extent that our prior decisions in Persak and Rardon conflict with our holding here today, we overrule those cases. We hold that upon remand, Munoz should be granted his chosen remedy of withdrawal of his guilty plea.
Accordingly, we reverse and remand for further proceedings consistent with this
opinion.
No restitution for dismissed count
2000 MT 100
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution
Wednesday, May 21, 2008
Insufficient evidence
001 MT 97
STATE OF MONTANA,v.
RAYMOND LOPEZ,
(1) Did the District Court err when the Court denied the defendant's Motion to Strike the Jury?
(2) Was there sufficient evidence to support convictions for felony assault and
aggravated burglary?
Accordingly, we remand this case for a new trial on all the charges, with the exception of Count 1, aggravated assault, Count 6, aggravated burglary and Count 11, burglary.
STATE OF MONTANA,v.
RAYMOND LOPEZ,
(1) Did the District Court err when the Court denied the defendant's Motion to Strike the Jury?
(2) Was there sufficient evidence to support convictions for felony assault and
aggravated burglary?
Accordingly, we remand this case for a new trial on all the charges, with the exception of Count 1, aggravated assault, Count 6, aggravated burglary and Count 11, burglary.
New Trial, Strike the jury
001 MT 97
STATE OF MONTANA,v.
RAYMOND LOPEZ,
(1) Did the District Court err when the Court denied the defendant's Motion to Strike the Jury?
(2) Was there sufficient evidence to support convictions for felony assault and
aggravated burglary?
Accordingly, we remand this case for a new trial on all the charges, with the exception of Count 1, aggravated assault, Count 6, aggravated burglary and Count 11, burglary.
STATE OF MONTANA,v.
RAYMOND LOPEZ,
(1) Did the District Court err when the Court denied the defendant's Motion to Strike the Jury?
(2) Was there sufficient evidence to support convictions for felony assault and
aggravated burglary?
Accordingly, we remand this case for a new trial on all the charges, with the exception of Count 1, aggravated assault, Count 6, aggravated burglary and Count 11, burglary.
we hold that the District Court exceeded its statutory authority by
2001 MT 101
STATE OF MONTANA,v.
ROBERT SETTERS,
The issues on appeal are:
1. Whether the District Court erred in requiring Setters to pay restitution.
2. Whether the District Court properly considered Setters' ability to pay when it
established the amount of restitution.
3. Whether the District Court erred in assessing a penalty in addition to restitution.
Section 46-18-202(1)(e), MCA (1997), provides that a sentencing court may impose
any condition or restriction "reasonably related to the objectives of rehabilitation and the protection of the victim and society." However, in interpreting that provision in State v. Ommundson, 1999 MT 16, , 293 Mont. 133, 974 P.2d 620, we held that a sentencing limitation or condition must have some correlation or connection to the
underlying offense for which the defendant is being sentenced. There is no suchcorrelation or connection in this case between Setters' conviction on the tampering charge and ordering him to pay restitution to DPHHS for his alleged theft of public assistance benefits. Consequently, the District Court's order did not meet the statutory requirements for the imposition of restitution on a suspended sentence.
Accordingly, we hold that the District Court exceeded its statutory authority by
ordering Setters to pay restitution for a dismissed count as a condition of his sentence.
Hence, we reverse the determination of the District Court as to restitution and we order that portion of Setters' sentence vacated.
STATE OF MONTANA,v.
ROBERT SETTERS,
The issues on appeal are:
1. Whether the District Court erred in requiring Setters to pay restitution.
2. Whether the District Court properly considered Setters' ability to pay when it
established the amount of restitution.
3. Whether the District Court erred in assessing a penalty in addition to restitution.
Section 46-18-202(1)(e), MCA (1997), provides that a sentencing court may impose
any condition or restriction "reasonably related to the objectives of rehabilitation and the protection of the victim and society." However, in interpreting that provision in State v. Ommundson, 1999 MT 16, , 293 Mont. 133, 974 P.2d 620, we held that a sentencing limitation or condition must have some correlation or connection to the
underlying offense for which the defendant is being sentenced. There is no suchcorrelation or connection in this case between Setters' conviction on the tampering charge and ordering him to pay restitution to DPHHS for his alleged theft of public assistance benefits. Consequently, the District Court's order did not meet the statutory requirements for the imposition of restitution on a suspended sentence.
Accordingly, we hold that the District Court exceeded its statutory authority by
ordering Setters to pay restitution for a dismissed count as a condition of his sentence.
Hence, we reverse the determination of the District Court as to restitution and we order that portion of Setters' sentence vacated.
we reverse that part of the sentence requiring that he attend parenting classes.
2001 MT 111
STATE OF MONTANA,v.
PAUL EDMOND SMITH,
Smith appeals the portions of his new sentence that require him to attend parenting classes, and to pay $900 in jail costs. We affirm in part, reverse in part, and remand.
However, the State is correct that Smith did not object to the District
Court's imposition of costs in the record below. It is well established that for this Court to address an issue on appeal, the issue must have first been raised in the District Court. State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97. The District Court cannot be held in error for mistakes it was not given the opportunity to correct. State v. Rogers (1993), 257 Mont. 413, 419, 849 P.2d 1028, 1032.
We therefore affirm the condition that Smith pay for the costs of his incarceration, and we reverse that part of the sentence requiring that he attend parenting classes. This matter is remanded to the District Court for further proceedings consistent with this opinion.
STATE OF MONTANA,v.
PAUL EDMOND SMITH,
Smith appeals the portions of his new sentence that require him to attend parenting classes, and to pay $900 in jail costs. We affirm in part, reverse in part, and remand.
However, the State is correct that Smith did not object to the District
Court's imposition of costs in the record below. It is well established that for this Court to address an issue on appeal, the issue must have first been raised in the District Court. State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97. The District Court cannot be held in error for mistakes it was not given the opportunity to correct. State v. Rogers (1993), 257 Mont. 413, 419, 849 P.2d 1028, 1032.
We therefore affirm the condition that Smith pay for the costs of his incarceration, and we reverse that part of the sentence requiring that he attend parenting classes. This matter is remanded to the District Court for further proceedings consistent with this opinion.
Ineffective Assistance of counsel winner
2001 MT 130
STATE OF MONTANA,v.
RICHARD D. SCHAFF,
Schaff contends that his lawyer provided ineffective assistance of
counsel when he required him to decide whether to accept the offered plea agreement after considering the matter for less than two hours. Schaff further alleges that his trial counsel forced him to enter the plea, misled him, and denied him the opportunity to secure other counsel. He claims that with the assistance of different counsel at the hearing to withdraw the guilty plea, he could have established that his plea was not voluntary. After a response from the State and without a hearing, the District Court denied the petition on January 7,2000. Schaff appeals and the only question is whether the District Court erred insummarily denying his petition.
We affirm part of the District Court's order inasmuch as any record based
voluntariness issues of Schaff's plea that have already been addressed in his direct appeal cannot be again raised in this proceeding. However, we reverse that part of the District Court's order which provides that Schaff is procedurally barred from raising ineffective assistance of counsel in this postconviction proceeding. This matter is remanded to the District Court for purposes of appointing counsel and conducting a hearing on the petition for postconviction relief.
STATE OF MONTANA,v.
RICHARD D. SCHAFF,
Schaff contends that his lawyer provided ineffective assistance of
counsel when he required him to decide whether to accept the offered plea agreement after considering the matter for less than two hours. Schaff further alleges that his trial counsel forced him to enter the plea, misled him, and denied him the opportunity to secure other counsel. He claims that with the assistance of different counsel at the hearing to withdraw the guilty plea, he could have established that his plea was not voluntary. After a response from the State and without a hearing, the District Court denied the petition on January 7,2000. Schaff appeals and the only question is whether the District Court erred insummarily denying his petition.
We affirm part of the District Court's order inasmuch as any record based
voluntariness issues of Schaff's plea that have already been addressed in his direct appeal cannot be again raised in this proceeding. However, we reverse that part of the District Court's order which provides that Schaff is procedurally barred from raising ineffective assistance of counsel in this postconviction proceeding. This matter is remanded to the District Court for purposes of appointing counsel and conducting a hearing on the petition for postconviction relief.
insufficient evidence to support a conviction for
TATE OF MONTANA,v.
MICHAEL CARL HASER
1. Did the District Court err in denying Haser's motion to dismiss for lack of speedy
trial?
2. Was the evidence before the jury sufficient to sustain the conviction of sexual
intercourse without consent?
We therefore conclude that there was insufficient evidence to support a conviction for sexual intercourse without consent. We hold that a rational trier of fact could not have properly found that the essential element "without consent" due to the victims being "incapable of consent" pursuant to § 45-5-501(1)(b), MCA, had been proven beyond a reasonable doubt.
MICHAEL CARL HASER
1. Did the District Court err in denying Haser's motion to dismiss for lack of speedy
trial?
2. Was the evidence before the jury sufficient to sustain the conviction of sexual
intercourse without consent?
We therefore conclude that there was insufficient evidence to support a conviction for sexual intercourse without consent. We hold that a rational trier of fact could not have properly found that the essential element "without consent" due to the victims being "incapable of consent" pursuant to § 45-5-501(1)(b), MCA, had been proven beyond a reasonable doubt.
Friday, May 16, 2008
No contempt for failing to pay fines
1979
No. 14786
THE STATE OF MONTANA, v.
JAMES LENIHAN,
1. Is the issue raised by defendant properly reviewable
on appeal?
2. Did the District Court err in ordering an indigent
defendant to reimburse the county for attorney fees as part
of a condition of deferred imposition of sentence
"No convicted person may be held in contempt for
failure to repay if he shows that his default was not attributable
to an intentional refusal to obey the order of the
court or to a failure on his part to make a good faith
effort to make the payment." Fuller v. Oregon, 40 L.Ed.2d at
650.
This Court is aware of the financial burden placed on the counties and the State by the criminal justice system.
We do not disagree with the proposition of reimbursement to the State. On the contrary, we applaud the trial judge for his efforts. However, we feel that recoupment provisions should be made to operate with considerations given to ability to repay, and in the event of default, the penalty should be a form of civil liability rather than possible criminal sanctions. Recoupment is not a magic word, and it may be possible and desirable to perfect a system outside
that kind of legislation.
The judgment of the deferred imposition of sentence is remanded to the District Court with instructions to vacate the repayment of attorney fees condition complained of and enter its order accordingly.
Wednesday, May 14, 2008
did not receive a probable cause hearing within 36 hours of her arrest under a bench warrant for probation revocation.
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 243
OPINION AND ORDER
STANA JEAN VANCE,v.
WARDEN JO ACTON and
WARDEN JAMES McDONALD,
Stana Jean Vance (Vance), pro se, filed a Petition for Writ of Habeas Corpus,
contending she was entitled to the benefit of this Court's decision in State v. Giddings, 2001 MT 76, 305 Mont. 74, 29 P.3d 475, because she did not receive a probable cause hearing within 36 hours of her arrest under a bench warrant for probation revocation. The State of Montana has conceded that Vance is entitled to the benefit of our Giddings decision, and indicates it intends to proceed in accordance with § 46-23-1012, MCA (2001), by filing a petition for revocation of deferred sentence and obtaining a bench warrant. Vance argues, however, that a petition for revocation of a deferred sentence must be filed during the period of the deferred sentence, under § 46-18-203, MCA. Since her deferred sentence expired in April 2001, she argues that the refiling of a petition for revocation of an expired sentence is prohibited under the law. On November 20, 2001, we directed the State to file a response to Vance's argument.
The State has responded, claiming it may proceed anew with revocation proceedings
under § 46-23-1012, MCA (2001), even though Vance has discharged her original
sentence.
There is no dispute that the probation violation occurred in October of 1999, nor does the State dispute the fact that Vance's original sentence expired in April 2001. However, the State relies on State v. Goebel, 2001 MT 155, 306 Mont. 83, 31 P.3d 340,30, where we held that due to the jurisdictional defect in the proceedings, all subsequent proceedings in the district court were void ab initio, and the parties are therefore returned to the same position "as if no District Court proceedings had occurred." Id., 30 (citation omitted). The State infers from this holding that the original sentence is tolled during the period of the void proceedings, for purposes of refiling a petition to revoke. The State cites of State v. Goebel, supra, where we said: 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.
The State argues that since Vance was under the custody or supervision of the Department of Corrections on May 1, 2001, pursuant to the void judgment of June 8, 2000, the State is entitled to refile, irrespective of the fact that the original sentence expired in April, 2001. We disagree.
The fact that the previous revocation proceedings were defective and therefore void ab initio does not mean that time stood still during the period of defective proceedings. Time passed, and Vance's original sentence expired. Moreover, the provisions of § 46-18-203, MCA, are not suspended by virtue of our decision in Giddings and Goebel, supra. Section 46-18-203(2), MCA, clearly states: The petition for a revocation must be filed with the sentencing court during the period of suspension or deferral.
There is no provision in the law allowing the State to refile a petition for revocation of suspended or deferred sentence to "relate back to the date of the probation violation" as the State urges. Although we have held in Giddings and Goebel that the State may refile a petition to revoke a suspended or deferred sentence, such refiling is conditional upon the petition being filed during the period of suspension or deferral of sentence, as § 46-18-20(2), MCA, requires. Once the term of the sentence expires, the State has no more power to refile a petition to revoke that suspended or deferred sentence than it would have to file an original proceeding to revoke under those circumstances. Accordingly,
IT IS HEREBY ORDERED that Stana Jean Vance's Petition for Writ of Habeas
Corpus is GRANTED. The State of Montana is directed to release Vance from custody
with respect to the captioned cause number within 48 hours of the date of this Order.
IT IS FURTHER ORDERED that the Clerk of this Court is directed to serve notice of
this Order by mail to Stana Jean Vance at her last known address and upon the
respondents' attorneys.
DATED this 5th day of December, 2001.
/S/ KARLA M. GRAY
2001 MT 243
OPINION AND ORDER
STANA JEAN VANCE,v.
WARDEN JO ACTON and
WARDEN JAMES McDONALD,
Stana Jean Vance (Vance), pro se, filed a Petition for Writ of Habeas Corpus,
contending she was entitled to the benefit of this Court's decision in State v. Giddings, 2001 MT 76, 305 Mont. 74, 29 P.3d 475, because she did not receive a probable cause hearing within 36 hours of her arrest under a bench warrant for probation revocation. The State of Montana has conceded that Vance is entitled to the benefit of our Giddings decision, and indicates it intends to proceed in accordance with § 46-23-1012, MCA (2001), by filing a petition for revocation of deferred sentence and obtaining a bench warrant. Vance argues, however, that a petition for revocation of a deferred sentence must be filed during the period of the deferred sentence, under § 46-18-203, MCA. Since her deferred sentence expired in April 2001, she argues that the refiling of a petition for revocation of an expired sentence is prohibited under the law. On November 20, 2001, we directed the State to file a response to Vance's argument.
The State has responded, claiming it may proceed anew with revocation proceedings
under § 46-23-1012, MCA (2001), even though Vance has discharged her original
sentence.
There is no dispute that the probation violation occurred in October of 1999, nor does the State dispute the fact that Vance's original sentence expired in April 2001. However, the State relies on State v. Goebel, 2001 MT 155, 306 Mont. 83, 31 P.3d 340,30, where we held that due to the jurisdictional defect in the proceedings, all subsequent proceedings in the district court were void ab initio, and the parties are therefore returned to the same position "as if no District Court proceedings had occurred." Id., 30 (citation omitted). The State infers from this holding that the original sentence is tolled during the period of the void proceedings, for purposes of refiling a petition to revoke. The State cites of State v. Goebel, supra, where we said: 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.
The State argues that since Vance was under the custody or supervision of the Department of Corrections on May 1, 2001, pursuant to the void judgment of June 8, 2000, the State is entitled to refile, irrespective of the fact that the original sentence expired in April, 2001. We disagree.
The fact that the previous revocation proceedings were defective and therefore void ab initio does not mean that time stood still during the period of defective proceedings. Time passed, and Vance's original sentence expired. Moreover, the provisions of § 46-18-203, MCA, are not suspended by virtue of our decision in Giddings and Goebel, supra. Section 46-18-203(2), MCA, clearly states: The petition for a revocation must be filed with the sentencing court during the period of suspension or deferral.
There is no provision in the law allowing the State to refile a petition for revocation of suspended or deferred sentence to "relate back to the date of the probation violation" as the State urges. Although we have held in Giddings and Goebel that the State may refile a petition to revoke a suspended or deferred sentence, such refiling is conditional upon the petition being filed during the period of suspension or deferral of sentence, as § 46-18-20(2), MCA, requires. Once the term of the sentence expires, the State has no more power to refile a petition to revoke that suspended or deferred sentence than it would have to file an original proceeding to revoke under those circumstances. Accordingly,
IT IS HEREBY ORDERED that Stana Jean Vance's Petition for Writ of Habeas
Corpus is GRANTED. The State of Montana is directed to release Vance from custody
with respect to the captioned cause number within 48 hours of the date of this Order.
IT IS FURTHER ORDERED that the Clerk of this Court is directed to serve notice of
this Order by mail to Stana Jean Vance at her last known address and upon the
respondents' attorneys.
DATED this 5th day of December, 2001.
/S/ KARLA M. GRAY
Speedy Trial remand
2008 MT 173
STATE OF MONTANA,v.
JOSEPH EVERETTE HOWARD,
Did the District Court err in denying Howard’s motion to dismiss on the ground that Officer DeWitt lacked authority to execute the stop?
Did the District Court err in denying Howard’s motion to dismiss for lack of a speedy trial?
Subsequently, in August 2007 we rendered our decision in Ariegwe in which we established a new framework for analyzing speedy trial claims and overruled in part our decision in Bruce. Since that time, we have remanded speedy trial questions to the district courts when the trial court did not have an opportunity to apply the Ariegwe analysis to the claim before it. State v. Smith, 2008 MT 7, 341 Mont. 82, 176 P.3d 258; State v. Madplume, 2008 MT 37, 341 Mont. 321, 176 P.3d 1071. We conclude this remains the appropriate method to resolve such cases; therefore we remand this matter to the District Court for analysis of Howard’s speedy trial claim under Ariegwe.
Tuesday, May 13, 2008
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.
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.
defective jury selection
2000 MT 368
303 Mont. 422
15 P. 3d 938
STATE OF MONTANA,v.
SHAWN RAY HIGHPINE
1. Was Highpine denied his right to speedy trial?
2. Did the District Court err in denying Highpine's motion to strike the jury panel?
Highpine contends that the court erred in denying his motion to strike the jury panel for violations of the statutes governing drawing, selecting, and notifying jurors. He presented statistical evidence that the clerk's method resulted in the exclusion from the jury of economically disadvantaged people. Highpine also submitted evidence that nearly thirty percent of all Native American households have no telephone, and were therefore disproportionately excluded by the telephone notification of jurors for Highpine's trial. The State has withdrawn its entire argument regarding this issue.
When a statutory violation directly or materially affects the random nature or
objectivity of the jury selection process, it is substantial or material and cannot be considered non-prejudicial to the defendant. LaMere, ¶ 60. The District Court's ruling that Highpine was not prejudiced by the clerk's failure to comply with the statutory procedure is therefore in error.
We remand for a new trial with an impartial jury drawn and summoned in a manner substantially in compliance with the law.
303 Mont. 422
15 P. 3d 938
STATE OF MONTANA,v.
SHAWN RAY HIGHPINE
1. Was Highpine denied his right to speedy trial?
2. Did the District Court err in denying Highpine's motion to strike the jury panel?
Highpine contends that the court erred in denying his motion to strike the jury panel for violations of the statutes governing drawing, selecting, and notifying jurors. He presented statistical evidence that the clerk's method resulted in the exclusion from the jury of economically disadvantaged people. Highpine also submitted evidence that nearly thirty percent of all Native American households have no telephone, and were therefore disproportionately excluded by the telephone notification of jurors for Highpine's trial. The State has withdrawn its entire argument regarding this issue.
When a statutory violation directly or materially affects the random nature or
objectivity of the jury selection process, it is substantial or material and cannot be considered non-prejudicial to the defendant. LaMere, ¶ 60. The District Court's ruling that Highpine was not prejudiced by the clerk's failure to comply with the statutory procedure is therefore in error.
We remand for a new trial with an impartial jury drawn and summoned in a manner substantially in compliance with the law.
Post conviction appointment of counsel
2001 MT 10
JACK SWEARINGEN, v.
STATE OF MONTANA,
Swearingen argues two issues: First, he maintains that the District Court had
a mandatory obligation to appoint counsel to represent him in his postconviction
proceeding and, failing to do so, the court committed reversible error. Second, Swearingen claims that the court erred as a matter of law in denying his petition for postconviction relief.
We determine that the first issue is dispositive and, therefore, do not address the second.
Accordingly, we hold, that under this statute, if the trial court determines that a hearing on a postconviction petition is required and if the defendant is unrepresented by counsel, then it is incumbent upon the court to inquire into the indigence status of the defendant and if he is unable to hire counsel and qualifies for appointed counsel under Title 46, Chapter 8, part 1, then the court must appoint counsel to represent the defendant on his postconviction petition.
Swearingen was forced to proceed without the benefit of counsel required by the law. As a result he suffered the very sort of harm that § 46-20-201(2), MCA (1997), was enacted to guard against. We reject the State's argument that Swearingen was required to demonstrate prejudice.
The trial court's denial of Swearingen's petition for postconviction relief is reversed and this cause is remanded to the District Court with instructions that the court appoint counsel for Swearingen and accord him a new evidentiary hearing on his postconviction petition.
JACK SWEARINGEN, v.
STATE OF MONTANA,
Swearingen argues two issues: First, he maintains that the District Court had
a mandatory obligation to appoint counsel to represent him in his postconviction
proceeding and, failing to do so, the court committed reversible error. Second, Swearingen claims that the court erred as a matter of law in denying his petition for postconviction relief.
We determine that the first issue is dispositive and, therefore, do not address the second.
Accordingly, we hold, that under this statute, if the trial court determines that a hearing on a postconviction petition is required and if the defendant is unrepresented by counsel, then it is incumbent upon the court to inquire into the indigence status of the defendant and if he is unable to hire counsel and qualifies for appointed counsel under Title 46, Chapter 8, part 1, then the court must appoint counsel to represent the defendant on his postconviction petition.
Swearingen was forced to proceed without the benefit of counsel required by the law. As a result he suffered the very sort of harm that § 46-20-201(2), MCA (1997), was enacted to guard against. We reject the State's argument that Swearingen was required to demonstrate prejudice.
The trial court's denial of Swearingen's petition for postconviction relief is reversed and this cause is remanded to the District Court with instructions that the court appoint counsel for Swearingen and accord him a new evidentiary hearing on his postconviction petition.
Parole eligibility
2000 MT 324
303 Mont. 8
15 P. 3d 884
CRISS A. CASE,v..
MIKE MAHONEY, Warden, Montana State Prison,
He argues that he has been incorrectly declared ineligible for parole and
petitions this Court for a writ of habeas corpus directing the Warden of the Montana State Prison to declare him eligible.Therefore, while the two conditions in § 46-23-201(1)(a), MCA (1978), are in apparent conflict, they can be harmonized in a way that comports with the intent of the legislature. Section 46-23-201(1)(a), MCA (1978), must be read as establishing a general one quarter less good time rule subject to a seventeen and one-half year outer limit on parole eligibility for nondangerous offenders. Under this interpretation, Case became eligible for parole after serving seventeen and one-half years of his
sentence. He has already served over twenty years.
THEREFORE, IT IS HEREBY ORDERED that Case's writ of habeas corpus is GRANTED.
303 Mont. 8
15 P. 3d 884
CRISS A. CASE,v..
MIKE MAHONEY, Warden, Montana State Prison,
He argues that he has been incorrectly declared ineligible for parole and
petitions this Court for a writ of habeas corpus directing the Warden of the Montana State Prison to declare him eligible.Therefore, while the two conditions in § 46-23-201(1)(a), MCA (1978), are in apparent conflict, they can be harmonized in a way that comports with the intent of the legislature. Section 46-23-201(1)(a), MCA (1978), must be read as establishing a general one quarter less good time rule subject to a seventeen and one-half year outer limit on parole eligibility for nondangerous offenders. Under this interpretation, Case became eligible for parole after serving seventeen and one-half years of his
sentence. He has already served over twenty years.
THEREFORE, IT IS HEREBY ORDERED that Case's writ of habeas corpus is GRANTED.
Dangerous weapon enhancement double jeopardy
2000 MT 332
303 Mont. 71
15 P. 3d 917
THE STATE OF MONTANA, v.
DAVID HART,
Whether the District Court erred when it imposed a dangerous weapon sentence
enhancement
The State concedes that the District Court's sentence is in violation of Guillaume. Therefore, we vacate the enhanced portion of Hart's sentence and remand for entry of judgment consistent with this opinion.
Affirmed in part and vacated in part.
303 Mont. 71
15 P. 3d 917
THE STATE OF MONTANA, v.
DAVID HART,
Whether the District Court erred when it imposed a dangerous weapon sentence
enhancement
The State concedes that the District Court's sentence is in violation of Guillaume. Therefore, we vacate the enhanced portion of Hart's sentence and remand for entry of judgment consistent with this opinion.
Affirmed in part and vacated in part.
Prosecutor's misconduct
2000 MT 379
303 Mont. 507
16 P. 3d 391
STATE OF MONTANA, v.
MICHAEL A. STEWART,
1. Whether the District Court erred in admitting the Soma prescription.
2. Whether the prosecutor's mention of Stewart's pretrial silence was improper.
3. Whether matters not objected to at trial should be reviewed under the plain error
doctrine.
4. Whether any error by the prosecution justifies a new trial.
The State concedes that the prosecutor should not have made this statement to the jury because sentencing is solely the duty of the trial court. In a non-capital case, the jury's verdict should not be influenced in any way by sentencing considerations. State v. Brodniak (1986), 221 Mont. 212, 226, 718 P.2d 322, 332 (citations omitted). Hence, it is impermissible for a jury to give weight to the possible punishment when reaching a verdict. Brodniak, 221 Mont. at 227, 718 P.2d at 332. On retrial, we admonish the prosecution not to refer to the rape story, the need for a new jail in Missoula County, the "some-dude" defense, or to matters involving sentencing in either voir dire, the prosecution's opening statement or closing argument.
Reversed and remanded for further proceedings consistent with this opinion.
303 Mont. 507
16 P. 3d 391
STATE OF MONTANA, v.
MICHAEL A. STEWART,
1. Whether the District Court erred in admitting the Soma prescription.
2. Whether the prosecutor's mention of Stewart's pretrial silence was improper.
3. Whether matters not objected to at trial should be reviewed under the plain error
doctrine.
4. Whether any error by the prosecution justifies a new trial.
The State concedes that the prosecutor should not have made this statement to the jury because sentencing is solely the duty of the trial court. In a non-capital case, the jury's verdict should not be influenced in any way by sentencing considerations. State v. Brodniak (1986), 221 Mont. 212, 226, 718 P.2d 322, 332 (citations omitted). Hence, it is impermissible for a jury to give weight to the possible punishment when reaching a verdict. Brodniak, 221 Mont. at 227, 718 P.2d at 332. On retrial, we admonish the prosecution not to refer to the rape story, the need for a new jail in Missoula County, the "some-dude" defense, or to matters involving sentencing in either voir dire, the prosecution's opening statement or closing argument.
Reversed and remanded for further proceedings consistent with this opinion.
Friday, May 09, 2008
Ineffective counsel winner
2001 MT 208
STATE OF MONTANA,
Respondent/Respondent,
v.
KENNETH LEROY WHITLOW
1. Did the District Court err when it determined that Whitlow's petition was not filed within the applicable statute of limitations?
2. Did the District Court err when it determined that Whitlow's petition was barred
because he could have reasonably raised his claim of ineffective assistance of trial counsel on direct appeal?
3. Did the District Court err when it denied Whitlow's motion to amend his petition to allege a claim of ineffective assistance of appellate counsel?
Applying the preceding analysis to the instant case, we hold that Whitlow's ineffective assistance of counsel claim could not have reasonably been raised on direct appeal because his allegations of ineffectiveness cannot be documented from the record in the underlying case. See Hagen,
For the aforementioned reasons, we reverse the District Court's conclusion that
Whitlow's ineffective assistance of counsel claim is barred by § 46-21-105(2), MCA.
Nothing in the foregoing opinion should be construed as comment on the merits of
Whitlow's claim.
ISSUE THREE
Did the District Court err when it denied Whitlow's motion to amend his petition to
allege a claim of ineffective assistance of appellate counsel?
Because we have held that Whitlow was not required to raise his claim of ineffective
assistance of trial counsel during the direct appeal from his conviction, his claim of ineffective assistance of appellate counsel is moot.
Reversed and remanded.
STATE OF MONTANA,
Respondent/Respondent,
v.
KENNETH LEROY WHITLOW
1. Did the District Court err when it determined that Whitlow's petition was not filed within the applicable statute of limitations?
2. Did the District Court err when it determined that Whitlow's petition was barred
because he could have reasonably raised his claim of ineffective assistance of trial counsel on direct appeal?
3. Did the District Court err when it denied Whitlow's motion to amend his petition to allege a claim of ineffective assistance of appellate counsel?
Applying the preceding analysis to the instant case, we hold that Whitlow's ineffective assistance of counsel claim could not have reasonably been raised on direct appeal because his allegations of ineffectiveness cannot be documented from the record in the underlying case. See Hagen,
For the aforementioned reasons, we reverse the District Court's conclusion that
Whitlow's ineffective assistance of counsel claim is barred by § 46-21-105(2), MCA.
Nothing in the foregoing opinion should be construed as comment on the merits of
Whitlow's claim.
ISSUE THREE
Did the District Court err when it denied Whitlow's motion to amend his petition to
allege a claim of ineffective assistance of appellate counsel?
Because we have held that Whitlow was not required to raise his claim of ineffective
assistance of trial counsel during the direct appeal from his conviction, his claim of ineffective assistance of appellate counsel is moot.
Reversed and remanded.
Ineffective assistance of counsel,
2001 MT 231
STATE OF MONTANA,v.
WAYLAND PAUL HARRIS
The issues raised by post-conviction petition are:
1. Did this Court deny Harris his right to due process when we refused on appeal to
apply retroactively the rule on the specific unanimity jury instruction announced in State v. Weaver?
2. Did the District Court err in dismissing Harris' post-conviction claim of ineffective assistance of counsel?
We remand to the District Court for an evidentiary hearing to address the first prong of the Strickland test.
STATE OF MONTANA,v.
WAYLAND PAUL HARRIS
The issues raised by post-conviction petition are:
1. Did this Court deny Harris his right to due process when we refused on appeal to
apply retroactively the rule on the specific unanimity jury instruction announced in State v. Weaver?
2. Did the District Court err in dismissing Harris' post-conviction claim of ineffective assistance of counsel?
We remand to the District Court for an evidentiary hearing to address the first prong of the Strickland test.
Restitution winner
9:33 AM 5/9/2008
2008 MT 162
STATE OF MONTANA,v.
BENJAMIN BREEDING,
The sole issue on appeal is whether the District Court lacked authority to impose a restitution obligation on Breeding for the body damage to the Jeep
we hold that the District Court lacked authority to require Breeding to pay restitution for damage to the Jeep which did not occur as a result of his offense of theft. Accordingly, the restitution obligation on Breeding’s sentence to cover the cost of the damage which occurred when Seghetti drove Smith’s vehicle into a haystack ($5,673.53) is illegal and must be reversed.
2008 MT 162
STATE OF MONTANA,v.
BENJAMIN BREEDING,
The sole issue on appeal is whether the District Court lacked authority to impose a restitution obligation on Breeding for the body damage to the Jeep
we hold that the District Court lacked authority to require Breeding to pay restitution for damage to the Jeep which did not occur as a result of his offense of theft. Accordingly, the restitution obligation on Breeding’s sentence to cover the cost of the damage which occurred when Seghetti drove Smith’s vehicle into a haystack ($5,673.53) is illegal and must be reversed.
Thursday, May 08, 2008
Breached Plea Agreement
No. 00-844
STATE OF MONTANA
2002 MT14
STATE OF MONTANA,v
JAMES AFTERBUFFALO.
The issue on appeal is whether the District Court abused its discretion in denying
Afterbuffalo's motion to withdraw his guilty plea.
We conclude, therefore, that the District Court's additional requirement that Afterbuffalo be placed in either a prerelease or intensive supervision program was outside the scope of the plea agreement and constitutes a rejection by the court of the agreement. As a result, we further conclude that, pursuant to § 46-12-211(4), MCA, the District Court was required to allow Afterbuffalo to withdraw his guilty plea.
We hold that the District Court abused its discretion in denying Afterbuffalo's motion to withdraw his guilty plea.
Reversed and remanded for further proceedings consistent with this opinion.
STATE OF MONTANA
2002 MT14
STATE OF MONTANA,v
JAMES AFTERBUFFALO.
The issue on appeal is whether the District Court abused its discretion in denying
Afterbuffalo's motion to withdraw his guilty plea.
We conclude, therefore, that the District Court's additional requirement that Afterbuffalo be placed in either a prerelease or intensive supervision program was outside the scope of the plea agreement and constitutes a rejection by the court of the agreement. As a result, we further conclude that, pursuant to § 46-12-211(4), MCA, the District Court was required to allow Afterbuffalo to withdraw his guilty plea.
We hold that the District Court abused its discretion in denying Afterbuffalo's motion to withdraw his guilty plea.
Reversed and remanded for further proceedings consistent with this opinion.
Victim released unharmed
2002 MT 122
STATE OF MONTANA,v.
DAVID WAYNE NELSON
1. Whether the District Court abused its discretion when it restricted the scope of Nelson's cross-examination of his accomplice;
2. Whether the District Court's instruction to the jury on "fabrication by the defendant" prejudiced Nelson; and
3. Whether the District Court erred when it sentenced Nelson to the maximum sentence for Aggravated Kidnaping, even though the evidence established the victim had been released in a safe location without serious injury.
The District Court sentenced Nelson to twenty years with ten years suspended, even though both victims testified at trial that Shari was released in her home before Nelson and Fred left. Moreover, during sentencing, the District Court noted it was "mindful that [Nelson] terminated [his] involvement in these crimes before someone was seriously physically injured," and that neither victim was "seriously injured in a physical way."
The State concedes that under the facts of this case, the District Court erred in sentencing Nelson to more than the ten year maximum. We therefore remand this matter to the District Court for resentencing under § 45-5-303(2), MCA. Upon remand, the District Court may also address any inconsistency between the written and oral judgments as noted in ¶ 8 of this Opinion.
Affirmed in part, and remanded for resentencing.
STATE OF MONTANA,v.
DAVID WAYNE NELSON
1. Whether the District Court abused its discretion when it restricted the scope of Nelson's cross-examination of his accomplice;
2. Whether the District Court's instruction to the jury on "fabrication by the defendant" prejudiced Nelson; and
3. Whether the District Court erred when it sentenced Nelson to the maximum sentence for Aggravated Kidnaping, even though the evidence established the victim had been released in a safe location without serious injury.
The District Court sentenced Nelson to twenty years with ten years suspended, even though both victims testified at trial that Shari was released in her home before Nelson and Fred left. Moreover, during sentencing, the District Court noted it was "mindful that [Nelson] terminated [his] involvement in these crimes before someone was seriously physically injured," and that neither victim was "seriously injured in a physical way."
The State concedes that under the facts of this case, the District Court erred in sentencing Nelson to more than the ten year maximum. We therefore remand this matter to the District Court for resentencing under § 45-5-303(2), MCA. Upon remand, the District Court may also address any inconsistency between the written and oral judgments as noted in ¶ 8 of this Opinion.
Affirmed in part, and remanded for resentencing.
Fines
No. 92-552 1994
STATE OF MONTANA,
v. THOMAS NEIL SULLIVAN,
1. Did the District Court err in failing to hold an omnibus
hearing at least 30 days prior to trial pursuant to g 46-13-110,
MCA, thereby prejudicing defendant?
2. Did prejudicial media publicity, and the District Court's
refusal to grant challenges for cause, preclude a fair trial for
defendant?
3. Did the District Court err by limiting the testimony of
Sue Duarte, excluding the testimony of Richard Duarte, and failing
to grant defendant's motion for a mistrial?
4. Did the District Court err in refusing to dismiss or
reverse Counts I, 111, IV, and V of the information on the grounds
of insufficiency of evidence?
5. Did the District Court err in fining defendant his
vacation pay and sick leave pay and ordering distribution of these
funds to United Way of Cascade County?
We reverse and remand this part of the judgment for further proceedings in accordance with 9 46-18-603, MCA, which provides :
All fines and forfeitures collected in any court except
city courts must be applied to the payment of the costs of the case in which the...[[
STATE OF MONTANA,
v. THOMAS NEIL SULLIVAN,
1. Did the District Court err in failing to hold an omnibus
hearing at least 30 days prior to trial pursuant to g 46-13-110,
MCA, thereby prejudicing defendant?
2. Did prejudicial media publicity, and the District Court's
refusal to grant challenges for cause, preclude a fair trial for
defendant?
3. Did the District Court err by limiting the testimony of
Sue Duarte, excluding the testimony of Richard Duarte, and failing
to grant defendant's motion for a mistrial?
4. Did the District Court err in refusing to dismiss or
reverse Counts I, 111, IV, and V of the information on the grounds
of insufficiency of evidence?
5. Did the District Court err in fining defendant his
vacation pay and sick leave pay and ordering distribution of these
funds to United Way of Cascade County?
We reverse and remand this part of the judgment for further proceedings in accordance with 9 46-18-603, MCA, which provides :
All fines and forfeitures collected in any court except
city courts must be applied to the payment of the costs of the case in which the...[[
Illegal sentence
2002 MT 13
STATE OF MONTANA, v. Brister,
1. Did Brister waive his objections by failing to contemporaneously object when the
sentence was pronounced and did he file a timely appeal from the District Court's
sentence?
2. Did the District Court's sentence violate Brister's constitutional protections
against double jeopardy?
3. Did the District Court err in imposing new conditions upon a continuation of
Brister's suspended sentence?
Therefore, we conclude the proper remedy here is to remand this matter to the District Court for a new disposition hearing in which to determine whether to strike all the new conditions added by the Court and continue Brister's suspended sentence under the original conditions, or revoke suspension and order Brister committed to the Montana Department of Corrections for the remainder of his sentence, as permitted under § 46-18-203, MCA (1983
STATE OF MONTANA, v. Brister,
1. Did Brister waive his objections by failing to contemporaneously object when the
sentence was pronounced and did he file a timely appeal from the District Court's
sentence?
2. Did the District Court's sentence violate Brister's constitutional protections
against double jeopardy?
3. Did the District Court err in imposing new conditions upon a continuation of
Brister's suspended sentence?
Therefore, we conclude the proper remedy here is to remand this matter to the District Court for a new disposition hearing in which to determine whether to strike all the new conditions added by the Court and continue Brister's suspended sentence under the original conditions, or revoke suspension and order Brister committed to the Montana Department of Corrections for the remainder of his sentence, as permitted under § 46-18-203, MCA (1983
Impartial juror
2001 MT 2
STATE OF MONTANA, v.
PAUL BIRD,
1. Whether one of the jurors at Paul's trial should have been removed for cause for
expressing doubt about her ability to remain impartial while deciding Paul's case and
whether Paul was prejudiced by the failure to remove this juror from the final jury panel.
2. Whether defense counsel rendered deficient performance during jury selection for
not removing a juror, whom he had challenged for cause, for expressing concern over
whether she could remain impartial and whether Paul was prejudiced by the failure to
remove this juror from the final jury panel.
3. Whether the District Court violated Paul's constitutional right to appear in all
criminal proceedings against him when the court excluded Paul from the in-chambers
individual voir dire.
4. Whether Paul's right to a fair trial was prejudiced by a law enforcement officer's testimony, based on out-of-court statements made by the victim, that Paul threatened to throw the victim into the river.
5. Whether the State and the District Court improperly shifted the burden of proof to Paul when the State demanded to know why a witness had not been subpoenaed and the court ordered Paul to call the witness.
6. Whether defense counsel rendered deficient performance when he opened the door to
testimony about alleged prior incidences of domestic violence between Paul and the victim.
Because we determine that Issue 3 is dispositive, we do not address Paul's remaining
issues.
We stated in LaMere:
the impartiality of the jury goes to the very integrity of our justice system, and the right to an impartial jury is so essential to our conception of a fair trial that its violation cannot be considered harmless error.
Reversed and remanded for further proceedings.
STATE OF MONTANA, v.
PAUL BIRD,
1. Whether one of the jurors at Paul's trial should have been removed for cause for
expressing doubt about her ability to remain impartial while deciding Paul's case and
whether Paul was prejudiced by the failure to remove this juror from the final jury panel.
2. Whether defense counsel rendered deficient performance during jury selection for
not removing a juror, whom he had challenged for cause, for expressing concern over
whether she could remain impartial and whether Paul was prejudiced by the failure to
remove this juror from the final jury panel.
3. Whether the District Court violated Paul's constitutional right to appear in all
criminal proceedings against him when the court excluded Paul from the in-chambers
individual voir dire.
4. Whether Paul's right to a fair trial was prejudiced by a law enforcement officer's testimony, based on out-of-court statements made by the victim, that Paul threatened to throw the victim into the river.
5. Whether the State and the District Court improperly shifted the burden of proof to Paul when the State demanded to know why a witness had not been subpoenaed and the court ordered Paul to call the witness.
6. Whether defense counsel rendered deficient performance when he opened the door to
testimony about alleged prior incidences of domestic violence between Paul and the victim.
Because we determine that Issue 3 is dispositive, we do not address Paul's remaining
issues.
We stated in LaMere:
the impartiality of the jury goes to the very integrity of our justice system, and the right to an impartial jury is so essential to our conception of a fair trial that its violation cannot be considered harmless error.
Reversed and remanded for further proceedings.
No criminal charges for criminally insane
2002 MT 246
STATE OF MONTANA,v.
JOHN M. MEEKS,
1. Upon declaring Meeks unfit to proceed, did the District Court fail to comply with the provisions of § 46-14-221(2)(c), MCA (1999)?
2. Did Meeks receive an improper sentence?
Therefore, upon review of the evaluation, there was no basis upon which to continue criminal proceedings against Meeks in November of 1999. Under § 46-14-221(2)(c), MCA (1999), the District Court was required to dismiss the criminal charges against Meeks, and the prosecution was required to commence civil commitment procedures, as provided in §§ 53-21-101-704, MCA (1999). Accordingly, we hold that, pursuant to § 46-14-221(2)(c), MCA (1999), the District Court erred in not dismissing the criminal charges against Meeks in November of 1999.
ISSUE 2 Did Meeks receive an improper sentence?
In the alternative, Meeks contends that his sentence is illegal, as he was committed to the custody of the DOC, rather than the Department of Public Health and Human Services. The State maintains the District Court correctly concluded that Meeks belonged in a correctional facility. However, our above holding renders Meeks' sentence moot. As such, we decline to reach this issue.
For the foregoing reasons, the judgment of the District Court is reversed and remanded for proceedings consistent with this Opinion.
STATE OF MONTANA,v.
JOHN M. MEEKS,
1. Upon declaring Meeks unfit to proceed, did the District Court fail to comply with the provisions of § 46-14-221(2)(c), MCA (1999)?
2. Did Meeks receive an improper sentence?
Therefore, upon review of the evaluation, there was no basis upon which to continue criminal proceedings against Meeks in November of 1999. Under § 46-14-221(2)(c), MCA (1999), the District Court was required to dismiss the criminal charges against Meeks, and the prosecution was required to commence civil commitment procedures, as provided in §§ 53-21-101-704, MCA (1999). Accordingly, we hold that, pursuant to § 46-14-221(2)(c), MCA (1999), the District Court erred in not dismissing the criminal charges against Meeks in November of 1999.
ISSUE 2 Did Meeks receive an improper sentence?
In the alternative, Meeks contends that his sentence is illegal, as he was committed to the custody of the DOC, rather than the Department of Public Health and Human Services. The State maintains the District Court correctly concluded that Meeks belonged in a correctional facility. However, our above holding renders Meeks' sentence moot. As such, we decline to reach this issue.
For the foregoing reasons, the judgment of the District Court is reversed and remanded for proceedings consistent with this Opinion.
Postponed restitution imposition improper
2002 MT 258
ROGER LARUE GILBERT,v.
STATE OF MONTANA,
1. Did the District Court err when it retained jurisdiction to revisit Gilbert’s parole restriction?
2. Did the District Court err when it postponed the consideration and imposition of restitution?
[W]e conclude that the District Court erred when it postponed consideration of restitution.
ROGER LARUE GILBERT,v.
STATE OF MONTANA,
1. Did the District Court err when it retained jurisdiction to revisit Gilbert’s parole restriction?
2. Did the District Court err when it postponed the consideration and imposition of restitution?
[W]e conclude that the District Court erred when it postponed consideration of restitution.
Wednesday, May 07, 2008
Prior conviction enhancement infirm
2002 MT 276
STATE OF MONTXNA, v.
NANETTE MAAUREEN HOWARD,
The sole issue on appeal is uhether thc Distrcct Court erred in denying
motion to dismiss the felony DUl charge.
We coneltide that the District Court's ruling that t-loxard validly waived her right to counsel was incorrect as a matter of law: bvaiver of the right to counsel must be express and must he secured before the entcring of a guilty plea. Therefore, we hold that Howard's 1997 DUL conviction was constitutionally infirm and may not serve to enhance the October 2000 DlUI conviction.
Accordingly, we reverse the District Court's holding.
STATE OF MONTXNA, v.
NANETTE MAAUREEN HOWARD,
The sole issue on appeal is uhether thc Distrcct Court erred in denying
motion to dismiss the felony DUl charge.
We coneltide that the District Court's ruling that t-loxard validly waived her right to counsel was incorrect as a matter of law: bvaiver of the right to counsel must be express and must he secured before the entcring of a guilty plea. Therefore, we hold that Howard's 1997 DUL conviction was constitutionally infirm and may not serve to enhance the October 2000 DlUI conviction.
Accordingly, we reverse the District Court's holding.
Boykin violation
2002 MT 286
STATE OF MONTANA,v.
EDWARD WAYNE TWEED,
I. Did the District Court err by granting Tweed an out-of-time appeal?
II. Did the District Court abuse its discretion by denying Tweed’s motion to withdraw his guilty pleas?
In view of the irregularities in the interrogation at the change of plea hearing, we conclude that any doubt about whether Tweed was precluded from entering a knowing, voluntary and intelligent plea due to a misunderstanding about the consequences of his act should be resolved in favor of a trial on the merits. We hold that the District Court abused its discretion in denying Tweed’s motion to withdraw his guilty pleas.
Reversed and remanded for further proceedings consistent with this Opinion.
STATE OF MONTANA,v.
EDWARD WAYNE TWEED,
I. Did the District Court err by granting Tweed an out-of-time appeal?
II. Did the District Court abuse its discretion by denying Tweed’s motion to withdraw his guilty pleas?
In view of the irregularities in the interrogation at the change of plea hearing, we conclude that any doubt about whether Tweed was precluded from entering a knowing, voluntary and intelligent plea due to a misunderstanding about the consequences of his act should be resolved in favor of a trial on the merits. We hold that the District Court abused its discretion in denying Tweed’s motion to withdraw his guilty pleas.
Reversed and remanded for further proceedings consistent with this Opinion.
Tuesday, May 06, 2008
sex offender redesignation
2007 MT 288
STATE OF MONTANA, v.
DAVID BULLMAN,
Did the District Court err when it failed to consider Bullman’s petition for re-designation based on the statutory language of § 46-23-509(4), MCA (2005)?
We conclude only that Bullman has the right to petition the courts for re-designation; the District Court must determine whether Bullman qualifies for re-designation.
STATE OF MONTANA, v.
DAVID BULLMAN,
Did the District Court err when it failed to consider Bullman’s petition for re-designation based on the statutory language of § 46-23-509(4), MCA (2005)?
We conclude only that Bullman has the right to petition the courts for re-designation; the District Court must determine whether Bullman qualifies for re-designation.
ex post facto winner
2007 MT 257
STATE OF MONTANA,v.
PAUL JAY SOUTHWICK,
Does the doctrine of res judicata bar this Court’s consideration of the merits of Southwick’s claim that the District Court imposed an illegal sentence?
2. Does Southwick’s failure to object to his sentences at either of his original sentencing hearings, or at the time the District Court revoked his suspended commitments, preclude review of his sentences?
3. Do the sentences imposed exceed the District Court’s statutory authority?
Because § 46-18-201(3)(d)(i), MCA (1999), is more burdensome that the 1997 version of the statute in effect at the time of the offenses, its application to Southwick violates the prohibition on ex post facto laws. Suiste, 261 Mont. at 253, 862 P.2d at 401.
We conclude, therefore, that Southwick’s sentence is facially illegal.
STATE OF MONTANA,v.
PAUL JAY SOUTHWICK,
Does the doctrine of res judicata bar this Court’s consideration of the merits of Southwick’s claim that the District Court imposed an illegal sentence?
2. Does Southwick’s failure to object to his sentences at either of his original sentencing hearings, or at the time the District Court revoked his suspended commitments, preclude review of his sentences?
3. Do the sentences imposed exceed the District Court’s statutory authority?
Because § 46-18-201(3)(d)(i), MCA (1999), is more burdensome that the 1997 version of the statute in effect at the time of the offenses, its application to Southwick violates the prohibition on ex post facto laws. Suiste, 261 Mont. at 253, 862 P.2d at 401.
We conclude, therefore, that Southwick’s sentence is facially illegal.
Jail time credit, illegal sentence
2003 MT 33
STATE OF MONTANA,v.
MICHAEL D. FISHER,
The issue presented for review is whether § 46-18-403, MCA, requires that a
sentencing court give a defendant credit for time incarcerated prior to conviction against both his jail sentence and any fine imposed.
We hold that a sentencing court has no discretion in applying § 46-18-403, MCA. It
must employ both subsections and give the defendant credit for each day of incarceration against both the sentence and any fine imposed. Once a valid sentence has been pronounced, the sentencing court has no jurisdiction to modify it except to correct factual errors. Section 46-18-116(3), MCA; Brown v. State, 2002 MT 209N, . However, a sentence which does not comply with Montana statutory law is illegal and must be addressed in the manner provided by law for appeal and postconviction relief. Section 46-18-116(3), MCA.
As we did in Layzell, we reverse and remand for resentencing in accordance with
this opinion.
STATE OF MONTANA,v.
MICHAEL D. FISHER,
The issue presented for review is whether § 46-18-403, MCA, requires that a
sentencing court give a defendant credit for time incarcerated prior to conviction against both his jail sentence and any fine imposed.
We hold that a sentencing court has no discretion in applying § 46-18-403, MCA. It
must employ both subsections and give the defendant credit for each day of incarceration against both the sentence and any fine imposed. Once a valid sentence has been pronounced, the sentencing court has no jurisdiction to modify it except to correct factual errors. Section 46-18-116(3), MCA; Brown v. State, 2002 MT 209N, . However, a sentence which does not comply with Montana statutory law is illegal and must be addressed in the manner provided by law for appeal and postconviction relief. Section 46-18-116(3), MCA.
As we did in Layzell, we reverse and remand for resentencing in accordance with
this opinion.
illegal sentence
2002 MT 181
STATE OF MONTANA,v.
HAROLD LEE STEVENS,
Harold Lee Stevens appeals from the Fourth Judicial District Court’s judgment of conviction of three counts of sexual intercourse without consent and three counts of sexual assault. We affirm in part, reverse in part and remand for proceedings in accordance with this opinion.
STATE OF MONTANA,v.
HAROLD LEE STEVENS,
Harold Lee Stevens appeals from the Fourth Judicial District Court’s judgment of conviction of three counts of sexual intercourse without consent and three counts of sexual assault. We affirm in part, reverse in part and remand for proceedings in accordance with this opinion.
Ineffective assistance of counsel hearing
2002 MT 187
LUKE SORAICH,v.
STATE OF MONTANA,
Whether the District Court abused its discretion in summarily dismissing Soraich's petition for postconviction relief.
we hold that the District Court abused its discretion in summarily dismissing Soraich's petition for postconviction relief and we remand to the District Court for an evidentiary hearing to address the second prong of the Strickland test.
Reversed and remanded.
LUKE SORAICH,v.
STATE OF MONTANA,
Whether the District Court abused its discretion in summarily dismissing Soraich's petition for postconviction relief.
we hold that the District Court abused its discretion in summarily dismissing Soraich's petition for postconviction relief and we remand to the District Court for an evidentiary hearing to address the second prong of the Strickland test.
Reversed and remanded.
street time credit, suspended sentence revoked
2003 MT 136
STATE OF MONTANA,v.
RODNEY WILLIAMS,
Whether the District Court erred when it concluded that Williams was a
probationer and not a parolee, and that he was not entitled to good time credit for time served from January 1998 to August 2001;
(2) Whether the District Court erred when, upon revocation of Williams’ suspended
sentence, it declined to expressly allow or reject the application of street time credit toward Williams’ upcoming term of incarceration, and instead followed a provision in its 1998 judgment, which stated that Williams would not receive street time credit if he violated the terms of his probation.
In summary, we affirm the District Court’s conclusion that Williams was a
probationer and not a parolee, and that he was not entitled to good time credit for time served from January 1998 to August 2001. Regarding the court’s decision to enforce that provision of its 1998 judgment precluding street time credit, we reverse and remand this matter to the District Court for a new dispositional hearing, and direct the court to consider any elapsed time that Williams has served, and state its reasons for either expressly allowing or rejecting the elapsed time as credit against Williams’ revoked suspended sentence.
STATE OF MONTANA,v.
RODNEY WILLIAMS,
Whether the District Court erred when it concluded that Williams was a
probationer and not a parolee, and that he was not entitled to good time credit for time served from January 1998 to August 2001;
(2) Whether the District Court erred when, upon revocation of Williams’ suspended
sentence, it declined to expressly allow or reject the application of street time credit toward Williams’ upcoming term of incarceration, and instead followed a provision in its 1998 judgment, which stated that Williams would not receive street time credit if he violated the terms of his probation.
In summary, we affirm the District Court’s conclusion that Williams was a
probationer and not a parolee, and that he was not entitled to good time credit for time served from January 1998 to August 2001. Regarding the court’s decision to enforce that provision of its 1998 judgment precluding street time credit, we reverse and remand this matter to the District Court for a new dispositional hearing, and direct the court to consider any elapsed time that Williams has served, and state its reasons for either expressly allowing or rejecting the elapsed time as credit against Williams’ revoked suspended sentence.
Postconviction ineffectiveassistance of counsel hurdle winner
2002 MT 202
STATE OF MONTANA,v.
LARRY ADAMS,
Adams filed a petition for postconviction relief which raised ineffective assistance of counsel and a constitutional challenge to his enhanced sentence for the use of a dangerous weapon during the commission of the aggravated assault. The District Court denied Adams’ petition and Adams appeals. We reverse.
In summary, we reverse the District Court’s judgment to the extent it concluded that Adams’ petition for postconviction relief was procedurally barred. We remand this case for the appointment of counsel and for further proceedings consistent with this Opinion.
STATE OF MONTANA,v.
LARRY ADAMS,
Adams filed a petition for postconviction relief which raised ineffective assistance of counsel and a constitutional challenge to his enhanced sentence for the use of a dangerous weapon during the commission of the aggravated assault. The District Court denied Adams’ petition and Adams appeals. We reverse.
In summary, we reverse the District Court’s judgment to the extent it concluded that Adams’ petition for postconviction relief was procedurally barred. We remand this case for the appointment of counsel and for further proceedings consistent with this Opinion.
Motion to suppress, no exigent cirmcumstances
2002 MT 206
STATE OF MONTANA,v.
EVELYN LOGAN,
The Thirteenth Judicial District Court, Yellowstone County, denied Evelyn Logan's motion to suppress evidence seized from her purse and from a car in which she was a passenger. Reserving her right to appeal the suppression issue, Logan pled guilty to misdemeanor possession of dangerous drugs and the court entered judgment against her. Logan appeals. We reverse and remand.
We hold the District Court erred in concluding exigent circumstances justified the officers' warrantless search of the purse and the car. As a result, we further hold the District Court erred in denying Logan's motion to suppress.
3 Reversed and remanded for further proceedings consistent with this opinion.
STATE OF MONTANA,v.
EVELYN LOGAN,
The Thirteenth Judicial District Court, Yellowstone County, denied Evelyn Logan's motion to suppress evidence seized from her purse and from a car in which she was a passenger. Reserving her right to appeal the suppression issue, Logan pled guilty to misdemeanor possession of dangerous drugs and the court entered judgment against her. Logan appeals. We reverse and remand.
We hold the District Court erred in concluding exigent circumstances justified the officers' warrantless search of the purse and the car. As a result, we further hold the District Court erred in denying Logan's motion to suppress.
3 Reversed and remanded for further proceedings consistent with this opinion.
Parole hearing, right to counsel
2002 MT 234
STATE OF MONTANA,
Plaintiff/Respondent, v.
WILLIAM EDGAR CARSON, a/k/a
RICHARD GORDON CARSON,
1. Did the District Court err when it denied Carson’s petition for postconviction relief?
2. Was Carson entitled to legal representation at his parole hearing?
we hereby grant Carson’s petition for a writ of habeas corpus, to the extent it requests reconsideration by the Board with the representation contemplated in § 46-23-202(2)(a), MCA, and remand this matter to the DOC for a new parole hearing, expeditiously scheduled, with Carson’s attorney in attendance.
STATE OF MONTANA,
Plaintiff/Respondent, v.
WILLIAM EDGAR CARSON, a/k/a
RICHARD GORDON CARSON,
1. Did the District Court err when it denied Carson’s petition for postconviction relief?
2. Was Carson entitled to legal representation at his parole hearing?
we hereby grant Carson’s petition for a writ of habeas corpus, to the extent it requests reconsideration by the Board with the representation contemplated in § 46-23-202(2)(a), MCA, and remand this matter to the DOC for a new parole hearing, expeditiously scheduled, with Carson’s attorney in attendance.
Prior conviction unconstitutionally obtained
2003 MT 27
STATE OF MONTANA,
v.
MICHAEL KVISLEN,
(1) Whether the District Court erred by denying Kvislen’s motion to dismiss without holding an evidentiary hearing concerning Kvislen’s claim that one of his prior convictions was obtained unconstitutionally; and
(2) Whether this case should be remanded to the District Court for an evidentiary hearing regarding Kvislen’s claim or, conversely, whether Kvislen’s felony conviction should be reversed and the case dismissed.
In summary we hold that because Kvislen presented direct evidence rebutting the presumption of regularity, the District Court, instead of denying his motion to dismiss, should have shifted the burden to the State to prove that the conviction was not obtained in violation of Kvislen’s constitutional rights. The State is entitled to present the testimony of Judge Steward in its attempt to establish that Kvislen’s 1990 conviction.
STATE OF MONTANA,
v.
MICHAEL KVISLEN,
(1) Whether the District Court erred by denying Kvislen’s motion to dismiss without holding an evidentiary hearing concerning Kvislen’s claim that one of his prior convictions was obtained unconstitutionally; and
(2) Whether this case should be remanded to the District Court for an evidentiary hearing regarding Kvislen’s claim or, conversely, whether Kvislen’s felony conviction should be reversed and the case dismissed.
In summary we hold that because Kvislen presented direct evidence rebutting the presumption of regularity, the District Court, instead of denying his motion to dismiss, should have shifted the burden to the State to prove that the conviction was not obtained in violation of Kvislen’s constitutional rights. The State is entitled to present the testimony of Judge Steward in its attempt to establish that Kvislen’s 1990 conviction.
Friday, May 02, 2008
Post conviction winner parole hearing
2002 MT 234
STATE OF MONTANA,
Plaintiff/Respondent, v.
WILLIAM EDGAR CARSON, a/k/a
RICHARD GORDON CARSON,
1. Did the District Court err when it denied Carson’s petition for postconviction relief?
2. Was Carson entitled to legal representation at his parole hearing?
we hereby grant Carson’s petition for a writ of habeas corpus, to the extent it requests reconsideration by the Board with the representation contemplated in § 46-23-202(2)(a), MCA, and remand this matter to the DOC for a new parole hearing, expeditiously scheduled, with Carson’s attorney in attendance.
STATE OF MONTANA,
Plaintiff/Respondent, v.
WILLIAM EDGAR CARSON, a/k/a
RICHARD GORDON CARSON,
1. Did the District Court err when it denied Carson’s petition for postconviction relief?
2. Was Carson entitled to legal representation at his parole hearing?
we hereby grant Carson’s petition for a writ of habeas corpus, to the extent it requests reconsideration by the Board with the representation contemplated in § 46-23-202(2)(a), MCA, and remand this matter to the DOC for a new parole hearing, expeditiously scheduled, with Carson’s attorney in attendance.
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