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State v. Ailport12/23/1998
APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake. Honorable C. B. McNeil, Judge Presiding.
Submitted on Briefs: November 19, 1998
. Paul Glen Ailport (hereinafter Ailport) appeals his conviction and the order of the Twentieth Judicial District Court, Lake County, denying his motion to dismiss a felony charge of driving a motor vehicle while under the influence of alcohol (felony DUI). We affirm the decision of the District Court.
. The issue presented on appeal is whether the District Court erred in failing to dismiss the DUI charge against Ailport on the grounds that his 1983 DUI conviction in the State of North Dakota could not properly be used to enhance his current charge to a felony.
. Ailport was arrested on December 9, 1996, and charged with DUI, fourth offense, a felony. One of the prior convictions used for the purpose of enhancing the charge against Ailport was a 1983 conviction for DUI in Williston, North Dakota. Ailport filed a motion before the District Court to have his current DUI charge dismissed on the grounds that during the proceedings on the 1983 conviction, he had not been represented by counsel and had not executed a waiver of his right to counsel at the time he plead guilty. Ailport asserted that because his 1983 conviction had been obtained in derogation of his constitutional right to counsel, the State could not use it to increase his current DUI charge to a felony.
. The District Court denied Ailport's motion, and in a subsequent trial on the merits, a jury found Ailport guilty as charged. Ailport appealed the order of the District Court denying his motion to dismiss, as well as his resulting conviction.
. The sole question before this Court is whether the District Court erred in denying Ailport's motion to dismiss his felony DUI charge on the grounds that his 1983 North Dakota conviction could not properly be used to support the enhanced felony charge.
. Whether a prior conviction can be used to enhance a criminal sentence is a matter of law. State v. LaPier, 1998 MT 174, 8, 961 P.2d 1274, 8, 55 St.Rep. 707, 8. We review a district court's Conclusions of law to determine if they are correct. State v. McKee, 1998 MT 110, , 958 P.2d 700, 13, 55 St.Rep. 433, 13. We review a district court's findings of fact to determine if they are clearly erroneous. State v. Okland (1997), 283 Mont. 10, 14, 941 P.2d 431, 433. A court's findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Interstate Prod. Credit Ass'n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
. It is the law in Montana that once the fact of a prior conviction is established, a presumption of regularity attaches to that conviction and the burden is upon the defendant to demonstrate by direct evidence that the conviction was constitutionally infirm. Okland, 283 Mont. at 18, 938 P.2d at 436. If the defendant produces sufficient evidence to successfully rebut the presumption of regularity, the burden of proof shifts to the State to demonstrate by a preponderance of the evidence that the prior conviction was not obtained in violation of the defendant's rights. LaPier, 11; Okland, 283 Mont. at 18, 941 P.2d at 436.
. At the trial level, the State established the fact of Ailport's 1983 North Dakota DUI conviction with a copy of a written citation from the Williston City Court indicating Ailport pled guilty to the charge of DUI. Ailport did not contest the sufficiency of this evidence to
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