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State v. VanMoorsel12/19/2001
UNPUBLISHED
APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Ted O. Lympus, Judge presiding.
Submitted on Briefs: November 1, 2001
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
Kenneth VanMoorsel (Kenneth), by counsel, appeals from the District Court's judgment and sentence dated March 5, 2001, pursuant to which the court ordered Kenneth incarcerated for a term of five years and one month at the Montana State Prison, with four years suspended with conditions on his conviction of felony DUI. We affirm.
BACKGROUND
On August 24, 2000, the Flathead County Attorney moved for leave to file an information charging Kenneth with driving while under the influence of alcohol (DUI), fourth offense, a felony. This cause was assigned No. DC-00-207C. The District Court, Honorable Stewart E. Stadler, granted the State's motion on the same day the information was filed.
On September 7, 2000, Kenneth filed his objection to the State's motion for leave to file information, basing his objection on a previous motion to dismiss which he had filed in Flathead County Cause No. DC-00-158A . On September 12, 2000, Judge Stadler denied Kenneth's objection.
Referencing both Cause No. DC-00-158A and No. DC-00-207C, the court observed that on August 15, 2000, Kenneth moved to dismiss Cause No. DC-00-158A and that on August 24, 2000, the court granted this motion, without prejudice. Kenneth's motion to dismiss Cause No. DC-00-158A was granted because the State failed to file an information within 30 days of Kenneth's waiver of preliminary examination of the underlying DUI charges originally filed in Justice Court. The court noted that the dismissal was made pursuant to § 46-11-203(2), MCA, and this Court's decision in State v. Strobel (1994), 268 Mont. 129, 885 P.2d 503. It appears undisputed that the DUI charged in DC-00-158A and that charged in DC-00-207C--the cause at issue in this appeal--are one and the same.
In any event, on September 21, 2000, Kenneth appeared before Judge Stadler, with counsel, and entered his plea of guilty to the information in Cause No. DC-00-207C. Importantly for our purposes here, Kenneth did not reserve for appeal the denial of his September 7, 2000 objection to the State's motion for leave to file an information. A sentencing hearing was held on February 22, 2001, and, as already noted, on March 5, 2001, the District Court committed Kenneth to the Montana State Prison under sentencing provisions that are the subject of our later discussion.
On appeal Kenneth raises two issues:
. Whether his right to due process of law was violated by excessive delay in the filing of the information.
. Whether the District Court imposed an illegal sentence.
DISCUSSION
Issue 1: Whether Kenneth's right to due process of law was violated by excessive delay in the filing of the information.
Kenneth frames his first issue in terms of whether his right to due process of law was violated by excessive delay in filing the information. At the outset we note that the record in this case simply reveals that Kenneth objected to the State's motion for leave to file an information "for the reason
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