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State v. Kvislen2/19/2003
Submitted on Briefs: May 9, 2002
Michael Kvislen (Kvislen) appeals from his conviction in the Thirteenth Judicial District Court for felony DUI. We reverse.
The following issues are raised on appeal:
(1) Whether the District Court erred by denying Kvislen's motion to dismiss without holding an evidentiary hearing concerning Kvislen's claim that one of his prior convictions was obtained unconstitutionally; and
(2) Whether this case should be remanded to the District Court for an evidentiary hearing regarding Kvislen's claim or, conversely, whether Kvislen's felony conviction should be reversed and the case dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2001, Kvislen was charged with Felony Driving While Under the Influence of Alcohol and/or Drugs. Pursuant to §§§§ 61-8-714(4) and 61-8-722(4), MCA, the information charged the offense as a felony because Kvislen had been convicted of DUI on three other occasions in 1990, 1998, and 2000. Prior to trial in Yellowstone County, Kvislen filed a motion to dismiss the information on grounds that the 1990 DUI conviction in the Billings City Court was entered in derogation of his constitutional rights and could not be used to elevate the 2001 charge to a felony. Kvislen submitted an affidavit in which he averred that he never received notice of his 1990 trial, and that he was not informed of his right to court-appointed counsel during those proceedings. The affidavit provides as follows:
I, Michael Kvislen, being first duly sworn, upon oath, depose and say:
3. In 1989, I was charged in Billings City Court with Driving Under the Influence of Alcohol . . . and was convicted after a trial in absentia. I did not receive notice of that trial.
4. . . . I could not afford an attorney and I was not advised of my right to a court-appointed attorney.
5. I did not waive my right to a court-appointed attorney.
6. I was convicted without the assistance of an attorney.
7. I was incarcerated as a result of the conviction that I received without an attorney.
The State opposed Kvislen's motion to dismiss, and argued that Kvislen's affidavit lacked sufficient detail to rebut the presumption of regularity associated with the 1990 conviction. As an indication that Kvislen was advised of his rights, the State provided the District Court with the City Court docket sheet, which contained a check mark next to the phrase "Advise of Rights." The State also noted, in its Brief in Response to Defendant's Motion to Dismiss, that former Billings City Court Judge, Gayle Stewart, who presided over the 1990 proceedings against Kvislen, would testify that she routinely advised all defendants of their constitutional rights. In response to Kvislen's second claim that he was never notified of the 1990 trial, the State observed that during the arraignment in that case, Kvislen received a notice that the trial was set for April 16, 1990.
Without conducting an evidentiary hearing to weigh Kvislen's affidavit against the assertions made by the State, the District Court denied the motion to dismiss, and concluded that Kvislen had not sufficiently rebutted the presumption of regularity that attaches to prior convictions. The court cited, as evidence of the validity of the 1990 conviction, the Billings City Court docket sheet, as well as the State's claim that Kvislen had received notice of the 1990 trial during the arraignment in that case. The court sentenced Kvislen to thirteen months imprisonment followed by four years of probation and stayed the execution of Kvislen's sentence pending this appe
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