State v. Gardipee, 02-705

Decision Date08 September 2004
Docket NumberNo. 02-705,02-705
Citation323 Mont. 59,98 P.3d 305,2004 MT 250
PartiesSTATE OF MONTANA, Plaintiff and Respondent, v. MELVIN GARDIPEE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Eric Olson, Cascade County Chief Public Defender; Jeffry L. Olson, Deputy Public Defender, Great Falls, Montana, Carl B. Jensen, Jr., Public Defenders Office, Great Falls, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Robert Stutz, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, John Parker, Gregory Bonilla, Deputy County Attorneys, Great Falls, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Melvin Gardipee (Gardipee) was convicted of family member assault, a felony, in violation of § 45-5-206(1)(a), MCA, by a jury in Montana's Eighth Judicial District Court, Cascade County. Gardipee appeals the District Court's order allowing the State to amend its Information. We affirm.

¶ 2 The sole issue raised on appeal is whether the District Court abused its discretion when it allowed the State to file an Amended Information on the morning of the trial.

BACKGROUND

¶ 3 On December 21, 2001, the State filed an Information alleging that Melvin Gardipee committed five offenses, including the following:

COUNT IV: PARTNER MEMBER ASSAULT, A MISDEMEANOR, in violation of MCA § 45-5-206(1)(a)(2001). The above-named defendant purposely or knowingly caused bodily injury to a family member, namely his daughter, Valarie Gardipee.

With the permission of the District Court, the State filed an Amended Information on May 20, 2002, the morning of the trial. The Amended Information included the following:

COUNT IV (AMENDED): FAMILY MEMBER ASSAULT, A FELONY, in violation of MCA § 45-5-206(1)(a)(2001). The above-named defendant purposely or knowingly caused bodily injury to a family member, namely his daughter, Valarie Gardipee. The Defendant was convicted on one count of domestic abuse on December 4, 1988, and was convicted on two additional counts of domestic abuse on January 26, 1993.

¶ 4 A jury found Gardipee guilty of several of the offenses charged against him, including Count IV. Gardipee appeals the District Court's order permitting the State to file its Amended Information.

STANDARD OF REVIEW

¶ 5 Whether to allow the amendment of an information is left to the discretion of the trial court. State v. Abe, 1998 MT 206, ¶ 28, 290 Mont. 393, ¶ 28, 965 P.2d 882, ¶ 28. We review discretionary trial court rulings to determine whether there has been an abuse of discretion. Abe, ¶ 28.

DISCUSSION

¶ 6 Did the District Court abuse its discretion when it allowed the State to file an Amended Information on the morning of the trial?

¶ 7 Gardipee alleges the District Court erred by permitting the State to file the Amended Information on the morning of the trial. Amendments to the substance of an Information must be filed not less than five days before trial, but amendments to the form of an Information may be filed any time prior to verdict if the substantial rights of the defendant are not prejudiced. Section 46-11-205, MCA, City of Red Lodge v. Kennedy, 2002 MT 89, ¶ 11, 309 Mont. 330, ¶ 11, 46 P.3d 602, ¶ 11. Gardipee concedes that the Amended Information was an amendment of form rather than substance. Accordingly, amendment of the Information on the day of trial was proper "if the substantial rights of the defendant are not prejudiced." Section 46-11-205(3), MCA.

¶ 8 Gardipee argues that his substantial rights were prejudiced by changing Count IV from a misdemeanor to a felony, which carries a much more severe penalty. Under Montana law, a first conviction of Partner or Family Member Assault constitutes a misdemeanor punishable by a fine from $100 to $1000 and imprisonment in the county jail for 24 hours to 1 year. Section 45-5-206(3)(a)(i), MCA. A second offense, also a misdemeanor, is punishable by a fine from $300 to $1000 and imprisonment in the county jail from 72 hours to 1 year. Sections 45-5-206(3)(a)(ii), MCA. A third or subsequent conviction, however, constitutes a felony and carries a penalty of $500 to $50,000 and imprisonment of 30 days to 5 years. Section 45-5-206(3)(a)...

To continue reading

Request your trial
7 cases
  • State Of Mont. v. Scheffer
    • United States
    • Montana Supreme Court
    • April 13, 2010
    ...given that tampering and attempted-tampering convictions lead to the same possible punishment. See § 45-4-103(3), MCA; cf. State v. Gardipee, 2004 MT 250, ¶ 9, 323 Mont. 59, 98 P.3d 305 (defendant's substantial rights were not prejudiced by amendment of the information on the morning of tri......
  • State v. LaFournaise
    • United States
    • Montana Supreme Court
    • February 22, 2022
    ... ... information as to form may prejudice a defendant's trial ... strategy. See Scheffer , ¶ 40; State v ... Gardipee , 2004 MT 250, ¶¶ 8-9, 323 Mont. 59, ... 98 P.3d 305 (rejecting Gardipee's assertion that, had he ... known of the amended information imposing a ... ...
  • State v. LaFournaise
    • United States
    • Montana Supreme Court
    • February 22, 2022
    ...rejected arguments that an amended information as to form may prejudice a defendant's trial strategy. See Scheffer , ¶ 40 ; State v. Gardipee , 2004 MT 250, ¶¶ 8-9, 323 Mont. 59, 98 P.3d 305 (rejecting Gardipee's assertion that, had he known of the amended information imposing a harsher pen......
  • State v. Hardground
    • United States
    • Montana Supreme Court
    • January 22, 2019
    ..."change of address" with "change of residence" and adding § 46-23-502(10), MCA, the definition of "sexual or violent offender"); State v. Gardipee , 2004 MT 250, ¶ 9, 323 Mont. 59, 98 P.3d 305 (an amendment made the day of trial to include reference to a statutorily-mandated sentencing rang......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT