No. 14373
IN THE SUPREME CCUFtT OF THE STATE C F MONTANA
1978
STATE QF MONTANA,
Plaintiff and Respordent,
DAVID L. AZURE,
D e f d a n t and Appellant.
Appeal f m : District Court of the Twelfth Judicial District,
Honorable Leonard Langen, Judge presiding.
Counsel of Record:
For Appellant:
Sias , Ranstran and Graham, Chinook, Montana
For Respondent:
Mike Greely, Attorney General, Helena, mntana
William M. Solem, County Attorney, Chinook, Montana
Sitmitt& on briefs: October 12, 1978
Filed: '
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant appeals from the sentence imposed upon him
following his conviction of mitigated deliberate homicide in
the District Court of Phillips County.
This appeal marks the second time this case has been
before this Court. See State v. Azure (1977), Mont . I
573 P.2d 179, 34 St.Rep. 1569. While we held the District Court
erred in not allowing defendant to withdraw his guilty plea to
deliberate homicide we remanded the case to the District Court for
trial.
Defendant was charged with killing Randy Lewis on June
23, 1976, and went on trial for deliberate homicide in April, 1978.
He was convicted of mitigated deliberate homicide.
On April 17, 1978, defendant received a 40-year sentence
providing that he would not be eligible for parole until he had
served one-half of his term, less good time allowances. Defendant
now appeals from the sentence imposed.
The sole issue on appeal is whether the imposition of a
sentence for conviction under statutes not in force at the time
the offense was committed is an - -
ex post facto application of the
law and therefore unconstitutional. We hold that it is under
authority of State v. Gone (1978), Mont .
-I -P.2d I
A law which eliminates or delays a defendant's parole
eligibility after the criminal offense has been committed is -
ex
post facto as applied to that defendant. State v. Gone, supra;
State ex rel. Nelson v. Ellsworth (1963), 142 Mont. 14, 380 P.2d
886; Greenfield v. Scafati (D-Mass. 1967) 277 F.Supp. 644, aff'd
per curiam (1968), 390 U.S. 713. The State agrees with defendant
that the applications of these statutes is - -
ex post facto in his
case.
As in Gone, we strike the provision eliminating parole
eligibility until one-half of his term is served, less good
time allowances.
hie£ Justice
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 14373
STATE OF MONTANA, yq.--
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Plaintiff and Respondent,c-
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DAVID L. AZURE,
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Defendant and Appellant. 5 :. :
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O R D E R
PER CURIAM:
IT IS ORDERED that the opinion in the above named cause,
decided on November 1, 1978, be amended as follows:
Please add "As so modified, the sentence is affirmed."
as the last paragraph of the opinion.
DATED this G& day of November, 1978.
(J Justices