State v. Christensen, 92-537

• Decision Date: 23 June 1994
• Docket Number: No. 92-537,92-537
• Citation: 265 Mont. 374,877 P.2d 468
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dean Gary CHRISTENSEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 468

877 P.2d 468

265 Mont. 374

STATE of Montana, Plaintiff and Respondent, v. Dean Gary CHRISTENSEN, Defendant and Appellant.

No. 92-537.

Supreme Court of Montana.

Submitted on Briefs June 2, 1994.

Decided June 23, 1994.

Jeffrey T. Renz and Andrew F. Scott, Legal Intern, Montana Defender Project, University of Montana, Missoula, for appellant.

Joseph P. Mazurek, Atty. Gen., Pamela P. Collins, Asst. Atty. Gen., Helena, Steven Howard, Sheridan County Atty., Plentywood, for respondent.

TRIEWEILER, Justice.

Dean Gary Christensen filed a petition for post-conviction relief in the District Court for the Fifteenth Judicial District in Sheridan County. The District Court dismissed the petition based on its conclusion that post-conviction relief is only available to persons adjudged guilty of an offense in a court of record. Christensen was convicted of reckless driving and operating a motor vehicle while an habitual traffic offender in the City Court for the City of Plentywood. That court is not a court of record. Christensen appeals the order of the District Court. We reverse and remand.

The issue on appeal is whether the District Court erred when it dismissed the petition for post-conviction relief.

Christensen did not appeal his conviction, but on July 9, 1992, filed a petition for post-conviction relief with the District Court, in which he sought to vacate and set aside the City Court convictions on the bases that he was denied effective assistance of counsel and his right to a jury trial. His affidavit alleged that he was surprised when no jury was present at trial, and that after voicing his objection to his attorney, the attorney motioned him to be quiet and proceeded to trial before the Justice of the Peace. Christensen further alleged that his attorney did not explain that an appeal could be taken from his conviction.

These allegations were refuted in affidavits from Larry O'Toole, Christensen's court-appointed attorney, and Tom Robertson, the City Court Judge who presided at Christensen's trial. However, the District Court did not resolve the factual issue raised by the contradictory allegations. Instead, it dismissed the petition based on its interpretation of § 46-21-101, MCA.

The issue in this case concerns a question of law. We review conclusions of law to determine whether the district court's interpretation of the law was correct. In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619.

The statutory provisions for initiating post-conviction hearings are found at §§ 46-21-101 through -105, MCA. At issue are the following provisions found at § 46-21-101(1) and (2), MCA:

When validity of sentence may be challenged. (1) A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence or the supreme court to vacate, set aside, or correct the sentence or revocation order.

(2) If the sentence was imposed by a justice's, municipal, or city court, the petition must be filed with the district court in the county where the lower court is located.

Christensen contends that the District Court improperly amended § 46-21-101(2), MCA, when it concluded that the reference to justice's courts and city courts in that section was "surplusage" because § 46-21-101(1), MCA, limits post-conviction relief to persons adjudged guilty of an offense in a court of record, and that in doing so, the District Court ignored an elementary rule of statutory construction which provides that:

In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Section 1-2-101, MCA. We agree.

Christensen cites Gaub v. Milbank Insurance Company (1986), 220 Mont. 424, 427-28, 715 P.2d 443, 444-45, where we restated the rules of statutory construction. These rules require this Court to construe or interpret a statute in accordance...