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State v. Couture6/2/1998
ly charged with felony DUI in the District Court. This was not a subsequent prosecution arising out of the same transaction for double jeopardy purposes. Couture's driving without a license and without proof of insurance was unrelated to his criminal objective of DUI — ingesting alcohol and driving a vehicle while under the influence of alcohol. We determine that the District Court correctly interpreted the statutory prohibition against double jeopardy as set forth in § 46-11-504, MCA, by holding that Couture's offenses did not arise out of the same transaction.
II
13 2) Did the District Court err in relying on Couture's prior DUI convictions in sentencing?
14
Couture argues that he was denied his right to an attorney in three former DUI convictions in August 1994, April 1992, and August 1990. Thus, Couture asserts that the District Court erred in considering those DUI convictions during sentencing.
15
A rebuttable presumption of regularity attaches to a prior DUI conviction during a collateral attack such as the one presented by Couture. The defendant may overcome this presumption by direct evidence of irregularity. State v. Big Hair, 1998 MT 61, [288 Mont. 135], 955 P.2d 1352, 16; State v. Olson (1997), 283 Mont. 27, 32, 938 P.2d 1321, 1324. In this case, Couture presented two affidavits in support of his motion, his own and his wife's. Both affidavits state that Couture was not advised of his right to counsel in the prior DUI proceedings. Couture alleges that the judge simply marked an "X" in front of the lines on the acknowledgment of rights form which he was expected to sign. Couture and his wife both state that in 1990 and 1992, the court accepted his guilty plea without advising him of his rights. The State concedes that the affidavits constitute direct evidence to rebut the presumption of regularity.
16 Therefore, the burden shifted to the State to prove by direct evidence that the prior conviction was not obtained in violation of the defendant's rights. The State submitted the acknowledgment of rights forms from each prior conviction to the District Court. The forms indicate that Couture was advised of his right to counsel and waived that right in each proceeding. The State argues that the District Court was entitled to give more weight to these forms than to the affidavits of Couture and his wife.
17 This Court was presented with a similar situation in Olson. In that case, we recognized that, when determining whether the defendant knowingly and voluntarily waived his right to counsel, the district court is required to consider the evidence and weigh it against the defendant's representations before deciding whether the State has satisfied its burden of proof. Olson, 938 P.2d at 1325. Moreover, we held that the weight of the evidence and the credibility of the witnesses are exclusively within the province of the district court and when the evidence conflicts, the district court is in the best position to make the necessary inferences and determine which evidence is more persuasive. Olson, 938 P.2d at 1325.
18 Likewise, in this case, the District Court was presented with Couture's affidavits on the one hand and with the State's proof on the other. The District Court was in the best position to weigh that evidence and make a determination as to which should prevail. This Court will not disturb that decision. The District Court did not err in relying on Couture's prior DUI convictions in sentencing. Affirmed.
JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.
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