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State v. Swartz12/28/2000
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer, The Honorable Gary L. Day, Judge presiding.
Submitted on Briefs: August 3, 2000
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 James Arthur Swartz (Swartz) appeals from the judgment entered by the Sixteenth Judicial District Court, Custer County, on a jury verdict finding him guilty of theft and of being a habitual traffic offender operating a motor vehicle. We affirm.
3 The issue on appeal is whether the District Court abused its discretion in denying Swartz's motion for a new trial based on improper jury instructions.
BACKGROUND
4 On June 19, 1998, the Motor Vehicle Division of the Montana Department of Justice declared Swartz to be a habitual traffic offender for having accumulated 30 or more conviction points on his driving record related to the use of a motor vehicle and revoked his driver's license. He was duly served with notice of the habitual traffic offender declaration which stated, in part, that
AS OF THIS DATE, YOU ARE NOT AUTHORIZED TO OPERATE A MOTOR VEHICLE IN THIS STATE FOR A PERIOD OF THREE YEARS.
The notice also referenced § 61-11-213, MCA, which provides that operating a motor vehicle in this state while declared to be a habitual traffic offender is a misdemeanor criminal offense.
5 On October 20, 1998, Swartz was charged by amended information with the offenses of theft, driving under the influence of alcohol and being a habitual traffic offender operating a motor vehicle. Following a jury trial, he was convicted of theft and being a habitual traffic offender operating a motor vehicle. Swartz moved the District Court for a new trial arguing, inter alia, the court improperly instructed the jury on the offense of being a habitual traffic offender operating a motor vehicle and his counsel rendered ineffective assistance by failing to object to the jury instruction given. The District Court denied the motion, sentenced Swartz and entered judgment on the conviction and sentence. Swartz appeals.
STANDARD OF REVIEW
6 We review a district court's ruling on a motion for a new trial to determine whether the court abused its discretion. State v. Clay, 1998 MT 244, 13, 291 Mont. 147, 13, 967 P.2d 370, 13. Additionally, we review the adequacy of jury instructions to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Hatten, 1999 MT 298, 56, 297 Mont. 127, 56, 991 P.2d 939, 56.
DISCUSSION
7 Did the District Court abuse its discretion in denying Swartz's motion for a new trial based on improper jury instructions?
8 Swartz was charged with the offense of being a habitual traffic offender operating a motor vehicle in violation of § 61-11-213, MCA, which provides that
person who is declared to be a habitual traffic offender under this part who operates a motor vehicle in this state during the period of revocation of the person's driver's license or driving privileges is guilty of a misdemeanor . . . .
With regard to this offense, the District Court instructed the jury as follows:
INSTRUCTION NO.
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