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State v. DeWitt11/12/2004
victim.
Weigle , 285 Mont. at 344, 947 P.2d at 1055.
Weigle is readily distinguishable from the case at bar. The State did not charge Weigle with two counts of driving under the influence . It rightly charged Weigle with one count of DUI and two counts of negligent homicide under a statute that intends each homicide to be a distinct offense. In the case before us, the State could have charged DeWitt with one count of aggravated burglary and two counts of assault. For some unexplained reason, it chose not to do so. There was only one unauthorized entry here, not two. The District Court therefore erred in refusing to dismiss one of the two counts of aggravated burglary. Because we reverse the District Court for failing to dismiss one count of aggravated burglary, we need not determine whether DeWitt's consecutive sentences on two counts of aggravated burglary implicate double jeopardy.
DeWitt next claims that his counsel was ineffective for failing to file pretrial motions to dismiss the defective information. He also claims the District Court erred in denying his request for new counsel at the sentencing hearing. It in unnecessary that we engage in a lengthy analysis of DeWitt's claims that his counsel was ineffective. Our review of the record shows that DeWitt's attorney zealously advocated on behalf of his client throughout the proceeding. There appears no evidence that counsel's performance was deficient; in fact, counsel made several apparently strategic decisions to the benefit of his client. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Lastly, DeWitt claims that the District Court erred in failing to conduct a Finley hearing when DeWitt requested new counsel at the sentencing hearing. However, because we are remanding this matter for re-sentencing, we conclude it is unnecessary to reach this issue.
CONCLUSION
For the foregoing reasons, we reverse the District Court's refusal to dismiss one count of aggravated burglary. We remand for dismissal of this charge and for re-sentencing. We affirm the District Court on all other issues.
PATRICIA O. COTTER
We Concur:
KARLA M. GRAY
W. WILLIAM LEAPHART
JAMES C. NELSON
JOHN WARNER
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