State v. Not Afraid , 1999 MT 313N ( 1999 )

No
No. 98-660
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 313N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GLORIA WOLF BLACK NOT AFRAID,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial
District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Attorney at Law, Billings, Montana
For Respondent:
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No
Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena,
Montana
Dennis Paxinos, Yellowstone County Attorney; Beverly Tronrud, Deputy
Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: November 18, 1999
Decided: December 14, 1999
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
1. ¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.
2. ¶ Defendant, Gloria Wolf Black Not Afraid (Not Afraid), was charged with driving
under the influence of alcohol, a felony (felony DUI); failure to show proof of
liability insurance; driving while license suspended or revoked; and driving with
fictitious license plates.
3. ¶ Not Afraid moved to dismiss the felony DUI charge on the basis that the statute
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which made fourth and subsequent DUI offenses a felony was impermissible
retroactive legislation and that the charging document did not state facts sufficient to
give jurisdiction to the District Court. The District Court denied the motion.
4. ¶ Not Afraid subsequently entered a guilty plea to the charges and reserved her right
to appeal the denial of the motion to dismiss.
Issues Presented
5. ¶ 1. Whether the District Court lacked jurisdiction because the Information charging
Not Afraid with felony DUI did not enumerate each of her prior offenses, the courts
in which the prior convictions were obtained, or the dates on which the prior
offenses were committed.
6. ¶ 2. Whether the 1995 amendment which made fourth offense DUI a felony was
enacted prior to Not Afraid's fourth DUI offense and was thus applied retroactively.
7. ¶ 3. Whether the 1995 amendment which made fourth offense DUI a felony violated
the prohibition against ex post facto legislation.
Standard of Review
8. ¶ We review a district court’s grant or denial of a pretrial motion to dismiss in a
criminal case to determine whether the court’s conclusions of law are correct. State
v. Morgan, 1998 MT 268, ¶ 17, 291 Mont. 347, ¶ 17, 968 P.2d 1120, ¶ 17.
Discussion
9. ¶ 1. Whether the District Court lacked jurisdiction because the Information charging
Not Afraid with felony DUI did not enumerate each of her prior offenses, the courts
in which the prior convictions were obtained, or the dates on which the prior
offenses were committed.
10. ¶ The Information charged Not Afraid with driving under the influence of alcohol, a
felony, on December 20, 1995 and the Affidavit and Motion for Leave to File
Information stated that, "[s]ubsequent investigation revealed the Defendant had
three or more prior DUI or per se convictions." Not Afraid argues that, in the
absence of specific allegations as to the time, place and court involved in each of the
prior convictions, the court had no jurisdiction over the charge.
11. ¶ District Courts have original jurisdiction in all criminal cases amounting to a
felony. Section 3-5-302(1)(a), MCA. A felony is an offense in which the sentence
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imposed upon conviction is death or imprisonment in a state prison for any term
exceeding one year. Section 45-2-101(22), MCA. Driving under the influence of
alcohol or drugs is a criminal offense punishable as either a misdemeanor or a
felony. Section 61-8-714, MCA (1995). The Information in the case sub judice
clearly charged Not Afraid with felony DUI. The affidavit in support of the
Information stated that Not Afraid "had three or more DUI or per se convictions" on
her record.
12. ¶ The underlying purpose of an information is to " 'reasonably apprise the person of
the charges against him so that he may have an opportunity to prepare his defense.' "
State v. Steffes (1994), 269 Mont. 214, 223, 887 P.2d 1196, 1202 (quoting State v.
Matt (1990), 245 Mont. 208, 213, 799 P.2d 1085, 1088). An information charging
felony DUI need not enumerate the prior offenses in order to establish jurisdiction in
the district court. See, e.g., State v. Campbell (1980), 189 Mont. 107, 119, 615 P.2d
190, 197. In State v. Nelson (1978), 178 Mont. 280, 283, 583 P.2d 435, 436, the
defendant was charged with "the crime of Driving While Under the Influence of
Intoxicating Liquor (3rd offense)." He argued that the information failed to establish
the jurisdiction of the district court because it did not specifically allege two prior
convictions. See Nelson, 178 Mont. at 283, 583 P.2d at 436-37. This Court rejected
the argument noting that the affidavit filed in support of the information clearly
stated that the defendant's driving record indicated " 'two previous driving while
intoxicated convictions.' " Nelson, 178 Mont. at 283-84, 583 P.2d at 437. The Court
held, "[r]eference to the affidavit filed is clearly permissible." Nelson, 178 Mont. at
284, 583 P.2d at 437. The information, in combination with the supporting affidavit
was sufficient to give jurisdiction to the district court. Nelson, 178 Mont. at 284, 583
P.2d at 437.
13. ¶ In the case at hand, the Information expressly charged Not Afraid with felony DUI
and the affidavit in support of the Information clearly stated, "[s]ubsequent
investigation revealed the Defendant had three or more prior DUI or per se
convictions." We hold that the District Court did not err in denying the motions to
dismiss.
14. ¶ 2. Whether the 1995 amendment which made fourth offense DUI a felony was
enacted prior to Not Afraid's fourth DUI offense and was thus applied retroactively.
15. ¶ In 1995, the Montana Legislature amended the laws pertaining to driving while
intoxicated and created a felony sanction for fourth or subsequent offense DUI. See
§ 61-8-714(4), MCA (1995). The amendment which made fourth or subsequent DUI
a felony offense became effective on October 1, 1995. Not Afraid committed her
fourth DUI offense on or about December 20, 1995, after the effective date of the
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amendment. Accordingly, the law was not applied retroactively.
16. ¶ 3. Whether the 1995 amendment which made fourth offense DUI a felony
violated the prohibition against ex post facto legislation.
17. ¶ Not Afraid argues that the amendment which made her fourth DUI a felony
violates the constitutional prohibition against ex post facto legislation. We addressed
this argument in State v. Brander (1996), 280 Mont. 148, 930 P.2d 31. In Brander,
we held that the application of the 1995 amendments did not violate the ex post
facto clauses of the Montana Constitution and United States Constitution. Brander,
280 Mont. at 154-55, 930 P.2d at 35. That decision was reaffirmed in State v. Pratt
(1997), 286 Mont. 156, 951 P.2d 37. We noted in Pratt that the legislature enacted
the felony DUI statute to punish repetitive behavior more severely rather than to
punish defendants for prior convictions. Pratt, 286 Mont. at 170, 951 P.2d at 45.
Those decisions are dispositive of Not Afraid's contentions in the present appeal.
We conclude that the felony DUI statute is not ex post facto legislation.
18. ¶ The convictions are affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ KARLA M. GRAY
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