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State v. Moga11/23/1999
APPEALS FROM: District Court of the Fifth Judicial District, In and for the County of Jefferson, Honorable Frank M. Davis, Judge Presiding (98-526). District Court of the First Judicial District, In and for the County of Lewis and Clark, Honorable Thomas C. Honzel, Judge Presiding (98-705).
Submitted on Briefs: October 28, 1999
In this consolidated appeal from the First Judicial District Court, Lewis and Clark County, and the Fifth Judicial District Court, Jefferson County, George Moga appeals his convictions of third and fourth offense DUI (driving under the influence of alcohol). We affirm.
The issues are:
1. Whether the District Courts erred in denying Moga's motions to dismiss.
2. Whether the Fifth Judicial District Court erred in denying Moga's motion to dismiss because of time limitations.
3. Whether the amended information filed in Jefferson County complies with the law.
Moga was charged with DUI on March 13, 1997, in Jefferson County. He was also charged, pursuant to §§ 61-6-212 and 61-7-106, MCA, with driving while his license was revoked and failing to report striking two unattended vehicles with his truck as he left a bar parking lot.
In July 1997, while the Jefferson County charges were still pending, Moga was charged with another DUI offense, this one in Lewis and Clark County. In connection with this DUI, Moga was also charged with driving while his license was revoked, failure to carry proof of insurance, and failure to report an accident by the quickest means.
Moga filed motions asking both District Courts to dismiss the DUI charges against him on grounds that his past DUI convictions were being improperly used for purposes of enhancing his punishment. Both courts ruled that Moga's June 8, 1990 DUI conviction could not be used for purposes of enhanced punishment. Both courts, however, approved the use of a March 14, 1994 DUI conviction for purposes of enhanced punishment. Moga had also been convicted of DUI on March 4, 1995; he did not challenge the use of that conviction for enhancement purposes.
Following the courts' rulings on Moga's motions to dismiss, the Jefferson County DUI charge against him was amended to a third offense misdemeanor. Trial was held before a jury, and Moga was convicted of all three counts on April 20, 1998. In Lewis and Clark County, Moga pled guilty in August 1998 to fourth offense DUI, a felony, as well as to the misdemeanor charges of driving while his license was suspended or revoked and driving without liability insurance.
Issue 1
Did the District Courts err in denying Moga's motions to dismiss?
A rebuttable presumption of regularity attaches to prior criminal convictions. If that presumption is overcome by direct evidence of irregularity, the burden shifts to the State to prove by direct evidence that the prior conviction was not obtained in violation of the defendant's rights. State v. Okland (1997), 283 Mont. 10, 18, 941 P.2d 431, 436.
Moga asserts that he adduced facts about his March 14, 1994 DUI conviction which prohibit the conviction from being used as a basis for enhancing his punishment for his current DUIs, under this Court's opinion in Okland. Like the defendant in Okland, Moga filed an affidavit stating that in the previous DUI he could not afford to hire an attorney but that he was not provided an attorney and was convicted without the assistance of counsel and imprisoned because of his conviction. Moga contends that he thereby clearly rebutted the presumption of regularity of his prior DUI conviction and that the State has failed to pro
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