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State v. Osborne10/25/2005
Submitted on Briefs: September 7, 2005
Steven Lee Osborne (Osborne) was convicted of felony driving under the influence (DUI). Pursuant to a plea agreement, the court designated Osborne as a persistent felony offender and sentenced him to ten years in prison, five of which were suspended.
Osborne filed a petition for post-conviction relief, asserting that the court exceeded its sentencing authority. The District Court denied his petition. Osborne now appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 30, 2003, the State charged Osborne with felony DUI. Osborne had previously been convicted of DUI four times, the most recent of which had resulted in Osborne's being convicted of felony DUI in 1999. Consequently, the State filed a notice seeking to have Osborne declared a persistent felony offender pursuant to § 46-18-501, MCA. When he subsequently pled guilty to the charge of felony DUI, Osborne was aware of the State's intention to seek persistent felony offender status. The court declared Osborne a persistent felony offender and sentenced him to ten years in prison, with five years suspended.
Osborne did not appeal this judgment and sentence. On January 5, 2005, however, Osborne filed a petition for post-conviction relief. His petition argues that, pursuant to § 61-8-731, MCA (2003), the court lacked authority to sentence him concomitantly on a charge of felony DUI and as a persistent felony offender. Osborne's petition contends that the 2001 amendment of the DUI sentencing statute prohibits the court from imposing a sentence of more than five years for felony DUI, and requires that all but thirteen months of the sentence be suspended. The District Court sentenced Osborne to ten years, and suspended only five years of his sentence. Therefore, Osborne's petition contends, the District Court exceeded its statutory authority when it sentenced him to ten years in prison, with five years suspended.
The State argues that the persistent felony offender statute, §§ 46-18-501 and -502, MCA (2003), includes felony DUI among the felonies to which it applies. The State notes that this Court held in 2001 that the persistent felony offender statute applied to persons convicted of felony DUI. State v. Yorek, 2002 MT 74, 309 Mont. 238, 45 P.3d 872. The State observes that the persistent felony offender statute has remained unchanged since our decision in Yorek. Accordingly, the State argues, Osborne's sentence was authorized by § 46-18-502, MCA (2003).
The District Court dismissed Osborne's petition for post-conviction relief, concluding that the petition failed to state a claim on which relief could be granted. The District Court's proffered rationale was that the felony DUI statute had not been amended since Yorek was decided in 2002 and Yorek controlled the disposition of Osborne's petition.
Osborne now appeals the District Court's dismissal of his petition. He claims that the court failed to recognize that this Court's decision in Yorek applied the pre-amendment version of § 61-8-731, MCA (1999). The State counters that the District Court correctly dismissed Osborne's petition because our holding in Yorek was premised on the authority bestowed upon the sentencing court by § 46-18-502, MCA, which is unaffected by the limits included in the felony DUI sentencing provision. The State also suggests that Osborne's petition raises claims that could have been raised on direct appeal. Accordingly, the State argues that Osborne's petition is procedurally barred pursuant to § 46-21-105(2), MCA.
STANDARD OF REVIEW
We review a district court's denial of a petition for post-con
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