Defendants’ rights violated by the warrantless electronic monitoring and recording of

2008 MT 296
STATE OF MONTANA, No. 05-676
v.
MICHAEL THADDEUS GOETZ,
Were the Defendants’ rights under Article II, Sections 10 and 11 of the Montana Constitution violated by the warrantless electronic monitoring and recording of their one-on-one conversations with confidential informants, notwithstanding the confidential informants’ consent to the monitoring?
The electronic monitoring and recording of those conversations without a warrant or the existence of an established exception to the warrant requirement violated the Defendants’ rights under Article II, Sections 10 and 11. As a result, we hold the District Court erred in denying the Defendants’ motions to suppress evidence derived from the warrantless electronic monitoring and recording of the three conversations at issue on the basis that the activities at issue did not constitute searches.
Reversed and remanded for further proceedings consistent with this opinion.

Ineffective assistance of counsel

008 MT 193
WILLIAM M. HALLEY,
v.
STATE OF MONTANA,
Did the District Court err in denying Halley’s Petition for Post-Conviction Relief

In the case before us, the District Court abused its discretion in failing to comply with the Gallagher guidelines when presented with a claim of ineffective counsel and a request for substitute counsel. It further erred in failing to inquire adequately whether Halley’s waiver of his right to counsel and request to represent himself was voluntarily, knowingly and intelligently made.
As a result, the District Court’s Opinion and Order Denying Petitioner’s Petition for Post-Conviction Relief is based on incorrect conclusions of law.
CONCLUSION
For the foregoing reasons, we vacate Halley’s guilty pleas, reverse the District Court’s denial of his petition, and remand this matter for retrial.

Social workers testimony of amphetamine use error

DA 06-0565
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 274
STATE OF MONTANA, v. CLYDE WILLIAM HAYDEN, SR.
Issue 1: Did the District Court err by not striking DPHHS social worker Elizabeth Foster’s testimony that Hayden had a positive urinalysis test for methamphetamine and by not giving an instruction that such testimony must be disregarded?
Issue 2: Was it plain error to admit testimony that witnesses were telling the truth in their initial statements; and did the prosecutor commit plain error in his statements concerning witness credibility and his opinion of the quality of police work?
The District Court did not abuse its discretion by not striking the testimony regarding Hayden’s methamphetamine use. However, Hayden’s constitutional right to a fair trial was undermined by plain error. Reversed and remanded for a new trial.

sex offender law

PState v. Lee
306 Mont. 173, 31 P.3d 998
Mont.,2001.
Under the present circumstances, we conclude that due process requires the trial court to consider whether there were adequate alternatives to incarceration that would further the purpose of Lee's suspended sentence. This is especially true when, as in Nixon, Lee's failure to complete sex offender treatment as required by the terms of his sentence was due not to his wilful conduct, but rather was due to the actions of the State. To do otherwise would deprive Lee of his conditional freedom simply because the State prevented him from completing sex offender treatment while imprisoned. Accordingly, we remand to the District Court to determine whether there are any reasonable alternative measures, other than continued incarceration, that are adequate to meet the State's interest in Lee's punishment, deterrence, or rehabilitation.
Reversed and remanded.

DUI Independent blood test

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

Speedy Trial analysis

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

Restitution error

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

Speedy Trial winner

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

Retroactivity parole and probation revocation probable cause hearing

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

ineffective assistance of counsel post conviction granting new appeal

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

Alchohol, casino restriction error, and restitution error

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

District Court exceeded its authority, sex offender treatment

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

Suspended sentence revocation error

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

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

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

Withdraw guilty plea

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

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

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

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

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

Illegal Sentence, restitution and recoupment cannot stand

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

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

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

Alcohol Prohibition Sentencing error

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

Santobello Error

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

guilty pleas were entered without counsel and without a valid waiver

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

Peremptory challenge for cause error

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

alcohol and gambling conditions were excessive

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

No explanation for harsher sentence

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

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

Ineffective assistance of counsel remand

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

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

"extraordinary relief" habeas granted

2001 MT 214

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

Unable to pay fines

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.

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.

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.

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.

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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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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...[[

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Odor of alchohol not probable cause

2004 MT 45
STATE OF MONTANA, v.
CHERI LARKIN MAY,
The dispositive issue is whether the District Court erred when it denied May's motion
to suppress evidence and statements obtained as a result of an illegal arrest.
We hold that the odor of alcohol emanating from May's person, standing alone, was insufficient to establish probable cause for her arrest by private citizens.
¶20 Because we have concluded the prosecution did not establish probable cause for the airmen's detention of May, which constituted an arrest, we hold that her arrest was illegal. As a result, all evidence obtained as a result of the arrest must be suppressed. See State v. New (1996), 276 Mont. 529, 535, 917 P.2d 919, 922-23.

right to petition the courts for re-designation;

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.

ex post facto error

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.

Unable to pay fines but able to pay attorney fees?

2007 MT 238
STATE OF MONTANA,v.
JACOB RALPH STARR,
Did the District Court err in finding Starr unable to pay a fine, and then sentencing him to pay his court-appointed attorney’s fees?
The District Court’s sentence requiring Starr to pay the costs for his assigned counsel goes against the weight of its evidentiary findings, and is illegal because it does not meet the requirements of § 46-8-113(3), MCA. We reverse and remand with instructions to strike the portion of the sentence concerning the attorney’s fees.

erred in failing to specify amount of restitution

2007 MT 230
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GILBERT BRUCE MEYERS,
Did Meyers’s trial counsel render ineffective assistance of counsel by failing to object to or seek exclusion of testimony regarding alleged prior bad acts?
(2) Did the District Court impose an illegal sentence by:
a. Restricting Meyers’s ability to reside in Broadwater County?
b. Requiring Meyers to pay restitution “in an amount to remain open” until the victims receive any help they need?
The District Court erred by failing to specify the total amount of restitution Meyers must pay to the victims

Illegal "Assesments" at sentencing

The District Court erred in sentencing Krum to pay “assessments” of $5,000 to the Park County Court Automation Fund, $2,500 to the Tri-County Network for Domestic Violence, and $2,500 to Park County Big Brothers and Sisters. These assessments were made without statutory authority, and as such, are illegal. Thus, we reverse and remand with instructions to strike the illegal portion of the sentence.

Miranda violation

2007 MT 222
STATE OF MONTANA, v.
JULIA MUNSON,
1. motion to suppress statements she made to law enforcement officers?
2. Did the District Court err in denying Munson’s motion to suppress evidence
Because Munson was interrogated in a custodial atmosphere, she was entitled to the Miranda warnings. The Officers’ failure to preface their questions with those warnings renders Munson’s statements inadmissible, and the District Court therefore erred when it denied Munson’s motion to suppress those statements.
Furthermore, because Munson’s consent to search was not given freely and voluntarily and without duress or coercion, all evidence seized by the Officers under the guise of that consent is inadmissible, and the District Court therefore erred when it denied Munson’s motion to suppress that evidence.

Shackles in the Courtroom violates Due Process

2008 MT 143
STATE OF MONTANA, v.
JOHN MICHAEL MERRILL,
Plaintiff and Appellee,
Did the District Court abuse its discretion in violation of Merrill’s right to due process of law by granting a request from a law enforcement officer to restrain Merrill with leg shackles during his jury trial?
We hold that the District Court abused its discretion in violation of Merrill’s right to due process of law by granting a request from a law enforcement officer to restrain Merrill with leg shackles during his jury trial.
Reversed and remanded for a new trial.

DUI past dissent

State v. Reavely, 338 MT 151
DUI "PAST' dissent

sex offender

State v. Hamilton, 338 MT 192 (2007)(dissent from failure to register Sex offender.

Post Conviction Claim not Second or Successive

2007 MT 16 JEFFREY SCOTT JORDAN v. STATE OF MONTANA
the substitution of trial judge does not evaporate claims. post conviction not second petiton

DOC to MSP Sentence More Burdensome

State v. Jackson. 338 Mt. 344 (2007)(resentence from MDC to MSP more burdensom, violating due process rights. Rice, Chief Gray, Leaphart Dissent

held conditions invalid as lacking a nexus with the offense committed.

No. 05-622
STATE OF MONTANA,
v.
PAMELA JONES GREESON,
The State also makes no effort whatsoever to distinguish the cases on which Greeson relies and in which we held conditions invalid as lacking a nexus with the offense committed. See, e.g., State v. Erickson, 2005 MT 276, 329 Mont. 192, 124 P.3d 119 (determining there was no correlation or connection between a conviction for the operation of a methamphetamine laboratory and a condition that the defendant pay child support); State v. Watson, 2001 MT 143, 306 Mont. 33, 29 P.3d 1026 (invalidating a restriction on interaction with females under the age of 19 years in sentencing a man for an assault on a peace officer); State v. Smith, 2001 MT 111, 305 Mont. 298, 27 P.3d 39, overruled on other grounds, State v. Brister, 2002 MT 13, 308 Mont. 154, 41 P.3d 314 (invalidating a sentencing provision requiring an offender convicted of theft and burglary to complete parenting classes as unrelated to the offense); State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620 (overturning a condition requiring sexual offender treatment as a condition of a DUI 6 sentence). We caution the State regarding its obligation to either brief an issue or concede it. We concluded no correlation had been established between alcohol and the crimes for which the defendant was sentenced. Holt, ¶ 51.

Ineffectiive assitance of counsel

State v. LaValley, 203 Mont. 393, 399-400, 661 P.2d 869, 873 (1983), where we reversed a conviction due to counsel’s ineffective representation, including failure to conduct pretrial interviews with character witnesses he called at trial.

However, because the court imposed unlawful sentences at the outset, its discretion upon imposing sentence at revocation was constrained.

No. 05-711
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 71
STATE OF MONTANA,v. STEPHEN SEALS,
The sole issue on appeal is whether the sentence imposed upon revocation is within the statutory parameters. (Facts of the matter way to convoluted for here) However, because the court imposed unlawful sentences at the outset, its discretion upon imposing sentence at revocation was constrained.

The offender may not be prosecuted, however, based only on the breach of the condition itself. Williams v. State, 528 A.2d 507, 510 (Md. App. 1987) (h

STATE v. LETASKY DA 06-0149 2007 MT 51 2/23/2007

TheThe offender may not be prosecuted, however, based only on the breach of the condition itself.

Williams v. State, 528 A.2d 507, 510 (Md. App. 1987) (holding a condition of probation may be enforced only through the power to revoke the probation, not through contempt proceedings). Montana Code indicates that the legislature did not intend for criminal contempt to be available as a remedy when an offender violates a condition of his suspended sentence.

The legislature did not list criminal contempt in § 46-18-203(7), MCA,
We reverse and remand with instructions for the District Court to dismiss Letasky’s charge of misdemeanor criminal contempt.

“irreconcilable conflict”

o. 04-429
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 49
STATE OF MONTANA,
JAMES RALPH HENDERSHOT, III,

The dispositive issue on appeal is whether the District Court abused its discretion in refusing Hendershot’s request for new counsel.
The dispositive issue on appeal is whether the District Court abused its discretion in refusing Hendershot’s request for new counsel.

Guilty plea withdraw

STATE v. FRAZIER

DA 06-0271

2007 MT 40

2/13/2007

The Justice Court’s interrogation was inadequate to determine whether there was

any factual basis for Frazier’s guilty plea. Since any doubts as to whether a plea was
voluntary should be resolved in favor of the defendant, we hold that the District Court erred by not allowing Frazier to withdraw his guilty plea. Therefore, we reverse and remand this matter to the District Court for further proceedings consistent with this Opinion.

Right of self incrimination violated

STATE v. RENNAKER DA 06-0105 2007 MT 10 1/23/2007

This Court held that a district court is prohibited from “augmenting a defendant’s sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination.” Imlay, 249 Mont. at 91, 813 P.2d at 985.We noted that a district court can consider lack of remorse as a basis for a sentence, but cannot punish a defendant for refusal to admit guilt. Shreves, ¶ 19 Here, the District Court did not tie its finding of lack of remorse to any specific evidence or statements made by Rennaker. Rather, it violated Rennaker’s right against self-incrimination when, based on Rennaker’s silence, it drew a negative inference of lack of remorse.

Beautiful Loser

STATE v. LEWIS 05-619 2007 MT 16 1/24/2007 Justice James C. Nelson, dissenting.I dissent from the Court’s decision on both Issues One and Two. I would remand this case to the District Court, instructing the court to hold a speedy trial hearing with Lewis being represented by constitutionally effective counsel.“ ‘A defendant has no duty to bring himself to trial; the State has that duty.’ ” Tiedemann, 178 Mont. at 400, 584 P.2d at 1288 (emphasis added) (quoting Barker, 407 16

Had counsel filed such a motion, he had everything to gain for his client and nothing to lose; there was no plausible strategic or tactical advantage to be gained from not filing a no-risk motion to dismiss for lack of speedy trial.Under either Issue One or Issue Two, Lewis is entitled to have this cause remanded to the District Court for a hearing putting the prosecution to its burden to prove that the 404 days of delay attributable to the State did not prejudice Lewis’s constitutional guarantee of a speedy trial.I dissent from our contrary resolution of this appeal

./S/ JAMES C. NELSON

Justice Patricia O. Cotter joins in the dissent of Justice James C. Nelson./S/ PATRICIA COTTER

Stare decisis

No. 05-178 State v. RAMON KOTWICKI,2007 MT 17 Justice James C. Nelson, concurring in part and dissenting in part.¶24 I agree with the Court that the threshold question before us is whether Kotwicki has raised “a plausible allegation that his sentence is illegal” under State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). See Opinion, ¶ 18. However, I disagree with the Court’s ultimate answer to this question. If we were to adhere to the doctrine of stare decisis and to our recent decision in State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946, we would reach the merits of Kotwicki’s sentencing claim. Unfortunately, the Court embarks on a new course that rests on erroneous interpretations of our Lenihan cases and conflicts with our decision in Garrymore, thereby creating further confusion and unpredictability in our Lenihan jurisprudence. I therefore dissent from the Court’s decision. Because Kotwicki alleges that the District Court lacked statutory authority to impose the $25,000 fine because it failed to make the ability-to-pay determination required by § 46-18-231(3), MCA, he has raised a plausible allegation that his sentence is illegal and he may obtain review of his sentencing claim on appeal. Justice James C. Nelson, concurring in part and dissenting in part.

reversible error

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

Double jeopardy Montana habeas corpus law

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

Confrontation Clause violation

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

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Old Montana Winning Cases

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

Defective Indictment

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

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

Warrantless Arrest

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

instruction is misleading and prejudicial

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