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State v. Morse12/21/2000
APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, The Honorable Gary Day, Judge presiding.
Submitted on Briefs: January 27, 2000
Clerk Justice Karla M. Gray
1 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.
2 Delbert Ira Morse (Morse) appeals from the judgment and sentence entered by the Sixteenth Judicial District Court, Custer County, on his guilty pleas to the charges of felony driving under the influence of alcohol (DUI) and misdemeanor driving while his license was suspended or revoked. Specifically, he appeals from the District Court's denial of his motion to dismiss or reduce the felony DUI charge, having reserved the right to do so.
3 The sole issue on appeal is whether the District Court erred in concluding that a prior DUI conviction could be used to enhance Morse's sentence.
BACKGROUND
4 On July 9, 1998, the State of Montana (State) charged Morse by information with felony DUI, based on three prior DUI convictions in 1991 and 1993, and misdemeanor driving while his license was suspended or revoked. Morse pled not guilty and subsequently moved to dismiss or reduce the felony DUI charge, contending that two of the earlier DUI convictions were constitutionally infirm for purposes of the current felony charge. In supporting affidavits, Morse stated that he had pled guilty to DUI charges on April 29, 1991, and April 12, 1993, without the benefit of legal advice and without being "offered a chance to speak with a court-appointed attorney . . . ." The State responded that court records from the referenced DUI cases established that Morse had been apprised of--and waived--his right to an attorney.
5 After a hearing at which Morse testified, the District Court found he had been advised of and waived his right to an attorney in the two earlier cases and denied the motion to dismiss or reduce the felony DUI charge. Morse ultimately pled guilty to the 1998 felony DUI charge and the misdemeanor driving charge pursuant to a plea agreement, specifically reserving his right to appeal the denial of his motion. The District Court entered judgment and sentence and stayed execution of the judgment pending appeal. Morse appeals from the District Court's determination that the 1991 DUI charge can be used to enhance his sentence.
STANDARD OF REVIEW
6 A district court's determination that a prior conviction may be used to enhance a criminal sentence is a conclusion of law. State v. Ailport, 1998 MT 315, 6, 292 Mont. 172, 6, 970 P.2d 1044, 6. We review a district court's conclusions of law to determine whether the conclusions are correct. State v. Okland (1997), 283 Mont. 10, 14, 941 P.2d 431, 433. We review the findings of fact on which conclusions are based to determine if they are clearly erroneous. Okland, 283 Mont at 14, 941 P.2d at 431. A court's findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Ailport, 6 (citation omitted).
DISCUSSION
7 Did the District Court err in concluding that Morse's 1991 DUI conviction could be used to enhance his sentence?
8 T
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