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State v. Wiedrich5/17/2005
Submitted on Briefs: January 26, 2005
Arnold Wiedrich (Wiedrich) pled guilty to felony driving while under the influence of alcohol. He appeals the sentence imposed by the Thirteenth Judicial District Court. We affirm in part and vacate in part.
ISSUES
Wiedrich presents the following two issues on appeal:
Are the sentencing conditions imposed in the District Court's written judgment invalid since these conditions were not discussed or imposed during the court's oral pronouncement of sentence?
Did the District Court err when it included a $1,000.00 fine in its written judgment?
FACTUAL AND PROCEDURAL BACKGROUND
On April 6, 2002, at approximately 2:30 in the afternoon, Wiedrich turned the wrong way on a one-way street in Billings, Montana, and struck a vehicle stopped at a red light. The police were already en route having received a "driving under the influence" (DUI) call just before the accident. Upon arriving at the scene, the responding officer asked Wiedrich for his license and proof of insurance. Wiedrich answered that he had no license and did not know where his insurance information was. It was later determined that he had no insurance.
The officer smelled alcohol and asked Wiedrich to step out of his vehicle. Wiedrich's speech was badly slurred, his eyes were red and glassy and he was unable to stand. The officer ultimately had to drag him to an adjacent grassy spot to minimize Wiedrich's risk of injury should he fall again. Also to minimize the risk of injury, the officer chose not to administer field sobriety tests that involved balance and walking.
However, on a field-administered Horizontal Gaze Nystagmus (HGN) test, Wiedrich displayed the maximum number of clues for intoxication.
Wiedrich refused to take a Preliminary Alcohol Screening Test (PAST) but, upon subsequent instruction from his probation officer, provided a breath sample on the Intoxilizer 5000 at the Yellowstone County Detention Center. The result demonstrated that Wiedrich's blood alcohol content (BAC) was .250. Wiedrich was charged with one count of felony DUI and two misdemeanor counts--driving on a suspended or revoked license, and operating a vehicle without liability insurance.
At Wiedrich's April 10, 2002, arraignment, he pled not guilty. Additionally, on April 10, 2002, the State filed notice of its intent to designate Wiedrich a persistent felony offender (PFO). In August 2002, Wiedrich entered into a plea agreement and changed his plea to guilty. As part of the plea agreement, the State agreed to drop the misdemeanor charges against Wiedrich and agreed to recommend a sentence of ten years at Montana State Prison (MSP). The District Court accepted the change of plea and ordered a pre-sentence investigation report (PSI). The PSI, dated October 29, 2002, was submitted to the court on the morning of the sentencing hearing.
On November 18, 2002, the District Court held a sentencing hearing during which the State, pursuant to agreement, recommended ten years at MSP. Wiedrich's counsel in turn argued for five years at MSP, to run consecutive with the ten months remaining on a previous conviction for which Wiedrich had been on parole prior to the April 6 incident. The District Court, noting that this was Wiedrich's eleventh DUI, sentenced Wiedrich as a PFO to fourteen years at MSP, with five years suspended. The court also prohibited Wiedrich from driving during the entire fourteen years and retained jurisdiction of the case to review the no-driving condition. On November 20, 2002, the District Court issued its written judgment. Wiedrich appeals on the gro
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