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Bennett v. State6/14/1999
APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.
Submitted on Briefs: May 27, 1999
. 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.
. Brian Bennett (Bennett) appeals from the order of the First Judicial District Court, Lewis and Clark County, denying his petition for post-conviction relief. We affirm.
. The dispositive issue on appeal is whether the District Court erred in concluding that Bennett's petition for post-conviction relief was procedurally barred.
BACKGROUND
. In 1996, the State of Montana (State) charged Bennett by information with driving under the influence of alcohol (DUI), a felony. The felony designation was based on Bennett's prior driving history. A jury found Bennett guilty of the charged DUI in January of 1997, and the District Court sentenced him and entered judgment on April 29, 1997. Bennett did not appeal.
. On October 10, 1997, Bennett filed a pro se petition for habeas corpus. He asserted that he had neither been represented by counsel nor waived counsel during the proceedings which resulted in his 1991 DUI conviction and jail time and, under State v. Okland (1997), 283 Mont. 10, 941 P.2d 431, that conviction should have been expunged and could not be used to enhance the 1996 DUI charge to a felony. Bennett also moved for appointment of counsel to represent him, and the District Court appointed the Lewis and Clark County Public Defender's Office to represent him.
. The State moved to dismiss Bennett's petition on procedural grounds. Bennett's counsel responded that Bennett's claims should have been filed as a petition for post-conviction relief and filed the appropriate petition and supporting brief. The State again asserted procedural bars and urged dismissal. On March 25, 1998, the District Court dismissed Bennett's petition for post-conviction relief pursuant to § 46-21-105(2), MCA, because Bennett had the opportunity in the trial court and on appeal to raise the issue of whether he should have received an enhanced penalty. Bennett did not appeal from the dismissal of his petition for post-conviction relief.
. On June 15, 1998, Bennett's counsel filed another petition for habeas corpus on his behalf. Counsel asserted that one of Bennett's 1988 convictions actually had been a per se conviction rather than an ordinary DUI conviction and, under State v. Sidmore (1997), 286 Mont. 218, 951 P.2d 558, that per se conviction should have been expunged and could not be used to enhance the 1996 DUI charge to a felony. The State responded by requesting that the petition be treated as one for post-conviction relief and dismissed as procedurally barred.
. The District Court heard oral arguments on the petition on July 23, 1998. Bennett's counsel urged that the petition was not procedurally barred because Sidmore was not decided until approximately eleven months after Bennett's 1997 conviction, eight months after entry of judgment and six months after the time for appeal had expired. Therefore, according to Bennett's counsel, the relief available pursuant to Sidmore could not have been raised earlier. Counsel then went on to argue the merits of Bennett's petition, namely, that Sidmore was
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