State v. Sidmore

• Decision Date: 30 October 1997
• Docket Number: No. 97-050,97-050
• Citation: 951 P.2d 558,286 Mont. 218,54 St.Rep. 1381
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ed Roy SIDMORE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 558

951 P.2d 558

286 Mont. 218

STATE of Montana, Plaintiff and Respondent, v. Ed Roy SIDMORE, Defendant and Appellant.

No. 97-050.

Supreme Court of Montana.

Submitted on Briefs Oct. 30, 1997.

Decided Dec. 18, 1997.

Rehearing Granted Oct. 30, 1997.

[286 Mont. 220] Lane K. Bennett, Kalispell, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Kim Christopher, Lake County Attorney, Robert J. Long, Deputy Lake County Attorney, Polson, for Plaintiff and Respondent.

NELSON, Justice.

Ed Roy Sidmore (Sidmore) appeals from a jury trial conviction of felony DUI, fourth offense, and from rulings made by the Twentieth Judicial District Court, Lake County, denying his motions to dismiss the charge of felony DUI, fourth offense. We reverse and order the felony charges against Sidmore to be dismissed.

Sidmore raises the following issues on appeal:

1. Did the District Court err in denying his motion to dismiss for lack of jurisdiction related to the use by the State of his 1990 BAC conviction and his 1988 Idaho DUI conviction, for felony enhancement, because those convictions were expunged?

2. Did the District Court err by not allowing his testimony regarding what he was informed of by the Kalispell City Judge concerning his 1990 BAC conviction?

3. Did the District Court err in denying his motion to dismiss due to the fact that the 1988 Idaho conviction was uncounseled, and there was no evidence that he had knowingly and intelligently waived his right to counsel?

4. Did the District Court err in denying his motion to dismiss for failure of the State to provide him the opportunity to obtain exculpatory evidence, i.e., an independent blood test?

5. Did the District Court err by either instructing the jury that he was charged with a felony and as to his three prior convictions and requiring the State to present evidence of such or avoiding that by requiring him to stipulate prior to trial?

The original Opinion in this cause was issued on October 7, 1997, and appeared in 54 St.Rep. 1026. In the original Opinion, we reversed the District Court, concluding that the portion of Issue 1 relating to Sidmore's 1990 BAC conviction was dispositive of the appeal, and, consequently, we declined to address that part of Issue 1 regarding Sidmore's 1988 Idaho DUI conviction and we declined to address Issues 2-5. Thereafter, the State filed a petition for rehearing pursuant to Rule 34, M.R.App.P., and Sidmore filed a brief in opposition. On October 30, 1997, we granted the State's petition for rehearing, reserving our discussion of the arguments necessitating rehearing for this Opinion.

Without disagreeing with our Opinion issued October 7, 1997, the State argues in its petition for rehearing that we erred by simply reversing the District Court. Relying on § 3-5-302(2), MCA (1995), the State contends that although Sidmore may have been improperly charged with felony DUI, the District Court properly has jurisdiction over this case. The State, therefore, asserts that we should address the remaining issues on appeal and remand this case to the District Court for further proceedings.

Sidmore opposes the State's petition. Relying on § 3-10-303(1), MCA (1995), Sidmore argues that we properly reversed the District Court because the District Court lacked jurisdiction. Sidmore contends that with the expungement of his 1990 BAC conviction, his current 1996 DUI conviction is only his second offense, which pursuant to § 61-8-714(2), MCA (1995), is punishable by a fine not less than $300 or more than $500 and by imprisonment for not less than seven (7) days or more than six (6) months. Therefore, Sidmore asserts, that under § 3-10-303(1), MCA (1995), his 1996 DUI conviction is a misdemeanor over which the justices' courts have original jurisdiction. Citing §§ 61-8-714(3) and 3-10-303(3), MCA (1995), Sidmore concedes that if his 1996 DUI conviction counted as his third offense, the District Court would have concurrent jurisdiction. However, Sidmore maintains that his 1996 DUI was only his second offense, and, therefore, the District Court did not have original jurisdiction.

We disagree with the State that under § 3-5-302(2), MCA (1995), the District Court We note in our original Opinion issued October 7, 1997, we held that Sidmore's 1990 BAC conviction should have been expunged from his record pursuant to § 61-8-722(6), MCA (1989). With the expungement of Sidmore's 1990 BAC conviction, two previous convictions remain on his record--a 1988 Idaho DUI conviction and a 1994 Montana DUI conviction. Consequently, based on our previous Opinion and contrary to Sidmore's argument, his current 1996 DUI would be his third offense. Pursuant to § 61-8-714(3), MCA (1995), a third DUI conviction is punishable by imprisonment of not less than thirty (30) days or more than one (1) year and a fine of not less than $500 or more than $1,000. Therefore, as Sidmore concedes, pursuant to § 3-10-303(3), MCA (1995), the justices' courts and district courts would have concurrent jurisdiction over a third DUI offense. Because the District Court would have concurrent jurisdiction over a third DUI offense, our decision to address only that part of Issue 1 concerning Sidmore's 1990 BAC conviction and to simply reverse the District Court was in error. For these reasons, we agree to address the remaining issues on appeal. Accordingly, our original Opinion issued October 7, 1997, is now withdrawn and this Opinion substituted.

                retains jurisdiction in this case even though Sidmore was improperly charge with felony DUI in the first instance.  Section 3-5-302(2)(b), MCA (1995), provides that the district court has concurrent jurisdiction with the justices' court in "misdemeanors resulting from the reduction of a felony or misdemeanor offense charged in the district court."   We agree with Sidmore that [286 Mont. 222] this statute does not apply on the facts of this case.  Contrary to the State's argument, the felony with which Sidmore was charged, tried and convicted was never reduced to a misdemeanor in the District Court.  Furthermore, to argue that the District Court retains jurisdiction under § 3-5-302(2)(b), MCA (1995), is to assume that the District Court properly exercised jurisdiction from the beginning.  However, this argument and its underlying assumption confuse the issue--the issue is not whether the District Court should retain jurisdiction over this case, but whether the District Court properly exercised jurisdiction in the first place.  Therefore, to resolve this issue, we must look to § 3-10-303, MCA (1995)
                

FACTUAL AND PROCEDURAL BACKGROUND

On March 23, 1996, Sidmore was arrested for driving while under the influence (DUI) and for driving while his license was revoked. Sidmore's driving record revealed that he had received two previous DUI convictions (a 1988 Idaho conviction and a 1994 Montana conviction) and one conviction in 1990 for driving with excessive blood alcohol concentration (BAC), in violation of § 61-8-406, MCA (1989). Consequently, on April 8, 1996, an Information was filed with the Twentieth Judicial District Court, Lake County, charging Sidmore with felony DUI, fourth offense, in violation of § 61-8-401(1)(a), MCA (1995), (Count I). Additionally, Sidmore was charged with driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA(1995), (Count II). On April 10, 1996, Sidmore entered pleas of not guilty to both charges.

On May 17, 1996, Sidmore moved to dismiss Count I of the Information alleging that the felony charge against him violated his rights to be free from ex post facto legislation; that his 1988 DUI conviction and 1990 BAC conviction should be expunged; that the State violated prior plea bargain agreements with him; and that the State violated his due process rights by failing to provide an independent blood test. On June 12, 1996, the District Court held an evidentiary hearing regarding Sidmore's motion to dismiss and denied his motion. At the end of the hearing, Sidmore entered a plea of guilty to Count II. Thereafter, Sidmore submitted two more motions to dismiss Count I, which the District Court also denied. The court did not support its denial of any of Sidmore's three motions to dismiss with a memorandum of opinion or rationale.

On August 29, 1996, a jury trial was held and Sidmore was found guilty of Count I. On October 9, 1996, a sentencing hearing was held. On March 3, 1997, the District Court issued an amended judgment and commitment,

sentencing Sidmore, based on certain conditions, to the Montana State Prison for six years, with four years suspended under Count I and to the Lake County Jail for a concurrent six month suspended sentence under Count II. However, the District Court stayed execution of this sentence pending appeal. Sidmore appeals from the District Court's denial of his motions to dismiss, from other various alleged errors and from his judgment and sentence.

DISCUSSION

A district court's grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 151, 930 P.2d 31, 33 (citation omitted). The two issues addressed in this Opinion arise from arguments made in Sidmore's May 17, 1996 motion to dismiss which the District Court denied after an evidentiary hearing on June 12, 1996. First, in addressing Sidmore's expungement arguments in Issue 1, we conclude that both Sidmore's 1990 BAC conviction and his 1988 Idaho DUI conviction should have been expunged from his Montana driving record, and, therefore, these convictions could not now be counted to support the present charge of felony DUI, fourth offense, pursuant to § 61-8-714, MCA (1995). Consequently, with our decision that two of Sidmore's three prior convictions should be expunged, his current 1996 DUI is only his second offense. Accordingly, without disrupting...