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Bingman v. State11/1/2005
Argued and Submitted: January 12, 2005
On August 28, 2001, James Dean Bingman (Bingman) was convicted of driving under the influence of alcohol (DUI), a felony. Bingman was committed to the Montana Department of Corrections for a period of thirteen months on the DUI conviction. In addition, the District Court then classified Bingman as a persistent felony offender and sentenced him to Montana State Prison for twenty years, with ten years suspended. Bingman appealed his designation as a persistent felony offender. This Court affirmed the judgment, concluding that Bingman had failed to properly raise the issue in the District Court. State v. Bingman, 2002 MT 350, 313 Mont. 376, 61 P.3d 153. Bingman also filed a petition for post-conviction relief challenging his designation as a persistent felony offender. The District Court denied his petition and Bingman appealed.
We affirm, and restate the issue before us as follows:
Did the District Court err in denying Bingman's petition for post-conviction relief because it was an untimely challenge to a 1986 sentence?
FACTUAL AND PROCEDURAL BACKGROUND
In 1986 Bingman was convicted by a jury of the offenses of felony assault and felony tampering with a witness in two cases that had been consolidated for trial. By judgment entered September 22, 1986, Bingman was sentenced to ten years in prison for felony assault, and pursuant to § 46-18-221(1), MCA (1985), an additional ten years was added to this sentence because he used a weapon in the assault. He was also sentenced to five years in prison for tampering with a witness. The ten year sentence, imposed because a weapon was used, was ordered to be served consecutive to the ten year sentence for felony assault.
The five year sentence was ordered served concurrently with the assault sentences. The result of these sentences was that Bingman was sentenced to twenty years at Montana State Prison.
Bingman did not appeal his 1986 conviction or sentences. Thereafter, he made no challenge to these sentences until the present case. Bingman was released from prison in 1997. Approximately two years later, in 1999, we determined that increasing a sentence imposed for felony assault, under § 46-18-221(1), MCA (1999), which increased a sentence when a weapon was used, violated the double jeopardy clause of the Montana Constitution because use of a weapon is a required element of felony assault. State v. Guillaume, 1999 MT 29, 16, 293 Mont. 224, 16, 975 P.2d 312, 16.
Bingman was then convicted of DUI, a felony, on August 28, 2001. Because he had not been released from prison for his felony assault sentence until 1997, less than five years before the DUI conviction, he was eligible to be designated a persistent felony offender. Section 46-18-501(2), MCA. The proper notice was given by the State, and the District Court then sentenced Bingman as a persistent felony offender, increasing his DUI sentence by twenty years with ten years suspended.
Bingman appealed his enhanced sentence. This Court affirmed, concluding that Bingman had failed to properly raise the issue in the District Court. State v. Bingman, 2002 MT 350, 313 Mont. 376, 61 P.3d 153. Bingman then filed the present petition for post-conviction relief challenging his designation as a persistent felony offender. The District Court denied his petition as untimely. Bingman now appeals from the denial of his petition for post-conviction relief.
STANDARD OF REVIEW
This Court reviews a district court's denial of a post-conviction petition to determine whether its findings of fact are clearly erroneous and whether its concl
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