State v. Guillaume

No

No. 97-291

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 29

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GEORGE PAUL GUILLAUME,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (1 of 18)4/9/2007 4:20:14 PM
 No

For Appellant:

Ronald L. Bissell, Cascade County Public Defender's Office, Great Falls, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena, Montana; Brant Light,
Cascade County Attorney, Michael Rausch, Deputy Cascade County Attorney, Great Falls, Montana

Heard: September 16, 1998

Submitted: November 12, 1998

Decided: February 19, 1999

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (2 of 18)4/9/2007 4:20:14 PM
 No

¶1. Following a jury trial in the Eighth Judicial District Court, Cascade County,
George Paul Guillaume (Guillaume) was found guilty of felony assault and criminal
trespass to property, a misdemeanor. The District Court sentenced Guillaume to ten
years in prison for felony assault, an additional five years in prison for use of a
weapon, and six months in prison for criminal trespass to property, the six-month
term to run concurrently with the fifteen-year term. Guillaume appeals that part of
the court's order sentencing him to ten years in prison for felony assault and an
additional five years in prison for use of a weapon on the basis of double jeopardy.
We reverse and remand for resentencing.

¶2. The sole issue on appeal is whether application of the weapon enhancement
statute, § 46-18-221, MCA, to a conviction for felony assault, a violation of § 45-5-202
(2)(b), MCA, violates the double jeopardy provision of Article II, Section 25 of the
Montana Constitution?

¶3. The following facts are not disputed. On July 6, 1996, at approximately 3:15 a.m.,
Jodi Vellucci (Vellucci), a neighbor of Robert Bielen (Bielen), observed through her
window a light in the unattached garage of Bielen. She also noticed that the walk-in
door to the garage was open. Vellucci immediately told Bielen what she had seen, and
Bielen went to the garage to investigate. As Bielen approached the garage, Guillaume
exited the garage. Guillaume saw Bielen, held up a hammer that he had taken from
the garage, and exclaimed, "I'll kill you." Guillaume swung the hammer at Bielen's
head. Bielen reacted in such a way that the hammer missed his head but struck his
hand. A struggle ensued and Guillaume escaped by jumping the fence. Guillaume
was later apprehended by the police. Bielen told the police that he thought Guillaume
was going to kill him when Guillaume swung the hammer at his head.

¶4. Guillaume was charged by information with felony assault, a violation of § 45-5-
202(2)(b), MCA, and criminal trespass to property, a misdemeanor, a violation of §
45-6-203, MCA. A jury trial was held on January 27-28, 1997, and Guillaume was
found guilty on all counts. On February 27, 1997, the District Court held a
sentencing hearing. The court sentenced Guillaume to ten years in prison for felony
assault, an additional five years in prison for use of a weapon pursuant to § 46-18-
221, MCA (hereinafter the weapon enhancement statute), and six months in prison
for criminal trespass to property, the six-month term to run concurrently with the
fifteen-year term. The court stated that the reasons for the sentence were

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (3 of 18)4/9/2007 4:20:14 PM
 No

Guillaume's prior criminal history and the severity of the offense. The court
emphasized the fact that Guillaume threatened and tried to kill Bielen with a
hammer.

¶5. On March 11, 1997, Guillaume filed a motion to reconsider sentencing on the
ground that application of the weapon enhancement statute to his felony assault
conviction violated the double jeopardy provision of the Montana Constitution. The
court denied Guillaume's motion and issued its sentencing order on March 21, 1997.
This appeal followed.

¶6. Does application of the weapon enhancement statute, § 46-18-221, MCA, to a
conviction for felony assault, a violation of § 45-5-202(2)(b), MCA, violate the double
jeopardy provision of Article II, Section 25 of the Montana Constitution?

¶7. The denial of Guillaume's motion for reconsideration of his sentence involves a
legal question that we review de novo to determine whether the District Court's
interpretation of the law is correct. State v. Zabawa (1996), 279 Mont. 307, 310, 928
P.2d 151, 153.

¶8. The double jeopardy provision of Article II, Section 25 of the Montana
Constitution provides in part: "No person shall be again put in jeopardy for the same
offense previously tried in any jurisdiction." This provision protects defendants from
both multiple prosecutions for offenses arising out of the same transaction, and
multiple punishments imposed at a single prosecution for the same offense. State v.
Savaria (1997), 284 Mont. 216, 222, 945 P.2d 24, 28. See also State v. Vargas (1996),
279 Mont. 357, 360, 928 P.2d 165, 167; State v. Nelson (1996), 275 Mont. 86, 90, 910
P.2d 247, 250. In the instant case, Guillaume maintains that application of the
weapon enhancement statute to his conviction for felony assault violated his right to
be free from multiple punishments for the same offense.

¶9. Guillaume was sentenced to ten tears in prison for commission of felony assault.
The statute defining felony assault provides in relevant part:

A person commits the offense of felony assault if the person purposely or knowingly
causes . . . reasonable apprehension of serious bodily injury in another by use of a weapon.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (4 of 18)4/9/2007 4:20:14 PM
 No

Section 45-5-202(2)(b), MCA. Guillaume's sentence was enhanced by five years pursuant
to the weapon enhancement statute. That statute provides in relevant part:

A person who has been found guilty of any offense and who, while engaged in the
commission of the offense, knowingly . . . used a . . . dangerous weapon shall, in addition
to the punishment provided for the commission of such offense, be sentenced to a term of
imprisonment in the state prison of not less than 2 years or more than 10 years . . . . An
additional sentence prescribed by this section shall run consecutively to the sentence
provided for the offense.

Section 46-18-221(1) and (4), MCA. Guillaume asserts that had he not used a weapon in
the struggle with Bielen, his actions would have fit the charge of misdemeanor assault, the
penalty for which is imprisonment of no more than six months or a fine of no more than
$500. See Section 45-5-201(1)(d) and (2), MCA ("A person commits the offense of assault
if he . . . purposely or knowingly causes reasonable apprehension of bodily injury in
another"). Guillaume asserts that the only factor raising his charge from misdemeanor
assault to felony assault was his use of a weapon. Based on this distinction between
misdemeanor and felony assault, Guillaume argues that the felony assault statute provides
by its own terms for enhanced punishment for use of a weapon, and that application of the
weapon enhancement statute to his conviction for felony assault effectively punished him
twice for use of a weapon. This, Guillaume argues, is exactly what the double jeopardy
provision was designed to prohibit.

¶10. In arguing his position, Guillaume does not dispute that the weapon
enhancement statute is constitutional on its face. Guillaume acknowledges that this
Court has repeatedly held that Montana's weapon enhancement statute is a
sentencing factor, and does not create a separate crime or element of a crime in
violation of the protection against double jeopardy. State v. Krantz (1990), 241 Mont.
501, 512, 788 P.2d 298, 305 (citing State v. Forsyth (1988), 233 Mont. 389, 423, 761
P.2d 363, 384; State v. Spurlock (1987), 225 Mont. 238, 241, 731 P.2d 1315, 1317;
State v. Davison (1980), 188 Mont. 432, 445, 614 P.2d 489, 497). However, Guillaume
argues that the weapon enhancement statute is unconstitutional as applied to him. See
State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983 (A defendant may
challenge a statute's constitutionality by arguing that it is unconstitutional on its face
or that it is unconstitutional as applied to his particular situation). Specifically,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (5 of 18)4/9/2007 4:20:14 PM
 No

Guillaume argues that when use of a weapon is an element of the underlying offense,
as it is in this case, it is a violation of double jeopardy to also apply the weapon
enhancement statute.

¶11. Guillaume acknowledges that in Zabawa, a case involving facts nearly identical
to the instant case, this Court held that application of the weapon enhancement
statute to a conviction for felony assault did not violate the double jeopardy provision
of the Fifth Amendment to the United States Constitution. Zabawa, 279 Mont. at 316,
928 P.2d at 156-57. However, Guillaume notes that we left unresolved in Zabawa the
question whether application of the weapon enhancement statute to a conviction for
felony assault violates the double jeopardy provision of Article II, Section 25, of the
Montana Constitution. Zabawa, 279 Mont. at 310, 928 P.2d at 153. Our reasons for
not addressing Zabawa's double jeopardy challenge under the Montana Constitution
were as follows:

[Zabawa] claims no greater protection from double jeopardy under Article II, Section 25
of the Montana Constitution than under the Fifth Amendment to the United States
Constitution . . . . [Zabawa has] relied entirely on federal interpretations under the United
States Constitution during oral argument; in Zabawa's view, those interpretations
supported his argument under that Constitution. Accordingly, we address only the double
jeopardy protection afforded under the United States Constitution, leaving for resolution in
a future case . . . whether Article II, Section 25 of the Montana Constitution provides
greater protection from double jeopardy than is provided by the United States Constitution.

Zabawa, 279 Mont. at 310, 928 P.2d at 153.

¶12. Guillaume states that the instant case now presents the question left open in
Zabawa. Guillaume claims that Article II, Section 25 of the Montana Constitution
affords greater protection from double jeopardy than does the Fifth Amendment to
the United States Constitution. In support of his claim, Guillaume undertakes an
analysis of legislative intent similar to that employed in Zabawa, see Zabawa, 279
Mont. at 313-16, 928 P.2d at 155-57, and ultimately concludes that, in enacting the
weapon enhancement statute, the Montana Legislature did not intend to impose
multiple punishments where the underlying offense requires proof of use of a weapon
as an element of the offense.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (6 of 18)4/9/2007 4:20:14 PM
 No

¶13. We agree with Guillaume that Article II, Section 25 of the Montana
Constitution provides greater protection from double jeopardy than is provided by
the United States Constitution. However, we do not reach this conclusion on the basis
of legislative intent. Zabawa is distinguishable from and has no bearing upon the
instant case. In Zabawa, this Court was faced with a question of federal
constitutional law and was bound to follow federal court decisions interpreting that
law. Zabawa, 279 Mont. at 310, 928 P.2d at 153. Specifically, we were bound to follow
Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535, wherein the
United States Supreme Court held that, where legislative intent is clear, cumulative
punishments imposed in a single trial do not violate the double jeopardy clause of the
Fifth Amendment to the United States Constitution. Hunter, 459 U.S. at 366, 103 S.
Ct. at 678. The Court reasoned:

With respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.

Hunter, 459 U.S. at 359, 103 S.Ct. at 678. Instructed by Hunter, this Court inquired into
whether, in enacting the weapon enhancement statute, the Montana Legislature intended to
impose multiple punishments where the underlying offense requires proof of the use of a
weapon as an element of the offense. Zabawa, 279 Mont. at 313, 928 P.2d at 155. We
answered that question in the affirmative. Zabawa, 279 Mont. at 316, 928 P.2d at 156-57.

¶14. Unlike Zabawa, the issue in the instant case is one of Montana constitutional
law.

The [Montana] Constitution vests in the courts the exclusive power to construe and
interpret legislative Acts, as well as provisions of the Constitution. Inherent in this power
is the responsibility to determine whether a particular law conforms to the Constitution.

In re License Revocation of Gildersleeve (1997), 283 Mont. 479, 484, 942 P.2d 705, 708
(citations omitted). As Justice Leaphart noted in his dissent to Zabawa:

Constitutional guarantees are not mere vessels to be left empty or filled at the whim of the
legislative branch. Rather, they have intrinsic meaning which is independent of any

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (7 of 18)4/9/2007 4:20:14 PM
 No

legislative intent.

Zabawa, 279 Mont. at 323-24, 928 P.2d at 161. Thus, pursuant to the doctrine of
separation of powers embodied in Article III, Section 1 of the Montana Constitution, and
pursuant to our duty to safeguard the rights and guarantees provided by this state's
Constitution, and notwithstanding legislative intent, we must apply the protection afforded
by the double jeopardy provision of Article II, Section 25 of the Montana Constitution.

¶15. This Court has long embraced the principle that the rights and guarantees
afforded by the United States Constitution are minimal, and that states may
interpret provisions of their own constitutions to afford greater protection than the
United States Constitution. State v. Johnson (1986), 221 Mont. 503, 512, 719 P.2d
1248, 1254 (citations omitted). In interpreting the Montana Constitution, this Court
has repeatedly refused to "march lock-step" with the United States Supreme Court,
even where the state constitutional provision at issue is nearly identical to its federal
counterpart. See e.g., Ranta v. State, 1998 MT 95, 55 St.Rep. 378, 958 P.2d 670
(holding that sentence review is a "critical stage" to which the right of counsel
attaches); State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61 (holding that a person
may have a reasonable expectation of privacy in land that extends beyond the
curtilage of his residence); State v. Johnson (1986), 221 Mont. 503, 719 P.2d 1248
(holding that defendant's statement that he would like to talk to "somebody" invoked
his right to counsel).

¶16. Thus, as we have done in the past, we again refuse to march lock-step with the
United States Supreme Court in interpreting the protection afforded by the double
jeopardy provision of Article II, Section 25 of the Montana Constitution. We hold
that Article II, Section 25 of the Montana Constitution affords greater protection
against multiple punishments for the same offense than does the Fifth Amendment to
the United States Constitution. We further hold that application of the weapon
enhancement statute to felony convictions where the underlying offense requires
proof of use of a weapon violates the double jeopardy provision of Article II, Section
25 of the Montana Constitution.

¶17. In so holding, we are guided by the fundamental principle embodied in double
jeopardy. Simply put, double jeopardy exemplifies the legal and moral concept that
no person should suffer twice for a single act. Although simply stated, the concept of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (8 of 18)4/9/2007 4:20:14 PM
 No

double jeopardy does not appear to be simply applied. One commentator notes:

The double jeopardy clause has been the source of more confusion than enlightenment.
The reason for this is to be found in the history of double jeopardy, in its varied sources, in
its uneven development, [and] in its deceptively simple phraseology. It is easier to pay lip
service to a principle than to give that principle life and meaning.

Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 117
(1969). While several cases have presented courts with difficult double jeopardy
questions, this case is not one of them. Under the facts of the instant case, double jeopardy
is simply applied.

¶18. The only factor raising Guillaume's charge from misdemeanor assault to felony
assault was his use of a weapon. We interpret this distinction between the two
offenses, and the different penalties imposed by each offense, as the legislature's way
of punishing a criminal defendant for use of a weapon in committing an assault.
Thus, when the weapon enhancement statute was applied to Guillaume's felony
assault conviction, Guillaume was subjected to double punishment for use of a
weapon: once when the charge was elevated from misdemeanor assault to felony
assault, and again when the weapon enhancement statute was applied. We agree with
Guillaume that this form of double punishment is exactly what double jeopardy was
intended to prohibit.

¶19. The State argues that the double jeopardy clause of the Montana Constitution
does not protect against multiple punishments for the same offense because such
protection is not explicit in the clause. We disagree with the State's argument because
it runs counter to prior precedent, see Savaria, 284 Mont. at 222, 945 P.2d at 28, and
Vargas, 279 Mont. at 360, 928 P.2d at 167, and the principle that the rights and
guarantees afforded by the United States Constitution are minimal. See Johnson, 221
Mont. at 512, 719 P.2d at 1254. In North Carolina v. Pearce (1969), 393 U.S. 711, 717,
89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65, the United States Supreme Court held
that the double jeopardy clause of the Fifth Amendment to the United States
Constitution protects against multiple punishments for the same offense. Because the
double jeopardy clause of the federal constitution protects against multiple
punishments for the same offense, the double jeopardy clause of the Montana
Constitution provides at least the same protection. Moreover, it makes sense that

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (9 of 18)4/9/2007 4:20:14 PM
 No

"double jeopardy applies to multiple punishments because, if it did not, then the
prohibition against multiple prosecutions would be meaningless; a court could simply
achieve the same effect as a second prosecution by resentencing a criminal defendant
after the defendant had served all or part of an initial sentence." Ex Parte Lange
(1873), 85 U.S. 163, 175, 21 L.Ed. 872, 878, 18 Wall. 163.

¶20. Second, the State argues that application of the weapon enhancement statute to
Guillaume's felony assault conviction results in only one punishment, not two. As
support for its position, the State cites Davison, wherein this Court held that the
weapon enhancement statute is a sentencing factor, and does not create a separate
offense. Davison, 188 Mont. at 447, 614 P.2d at 498. On this basis, the State argues
that "any supposed" protection against multiple punishments is not implicated in
this case. Further, the State argues that the separation of powers doctrine prohibits
this Court from infringing on the Montana Legislature's exclusive power, embodied
in Article V, Section 11 of the Montana Constitution, to determine appropriate
punishments for criminal offenses.

¶21. Although the State has correctly cited the above authorities, its reliance on them
is misplaced. Davison is inapposite to the issue being decided in this case. The issue is
not whether Guillaume committed two offenses by use of a weapon; rather, the issue
is whether Guillaume was punished twice for use of a weapon. On this point, the
same commentator cited above summarizes the thoughts of many double jeopardy
critics:

The need for clarification of double jeopardy is indubitable. One necessary distinction is
that between double prosecution and double punishment. In determining this question,
inquiry should be concentrated upon the nature of the defendant's conduct, [and] the
physical character of the criminal transaction, rather than upon the number of offenses
arising from the transaction. The protection against multiple punishment has as its
rationale the belief that the defendant's punishment should be commensurate with but not
greater than his criminal liability.

Sigler, supra, at 193.

¶22. The argument that application of the weapon enhancement statute to a felony
assault conviction results in only one punishment for use of a weapon, rather than

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (10 of 18)4/9/2007 4:20:14 PM
 No

two, is one of pure semantics. Were we to accept this argument, we would in effect
strip double jeopardy of all meaning. We refuse to merely pay lip service to the
fundamental principle of double jeopardy.

¶23. Although it is true that the Montana Constitution confers upon the legislature
the power to set appropriate punishments for criminal acts, see Art. V, Sec. 11, Mont.
Const., this power is not unbridled. The double jeopardy clause of Article II, Section
25 of the Montana Constitution prohibits the legislature from imposing on criminal
defendants multiple punishments for the same offense. As previously stated, this
Court is vested with the exclusive power to review whether a particular legislative act
conforms to the Constitution. Gildersleeve, 283 Mont. at 484, 942 P.2d at 708. We
conclude that our holding in the instant case does not violate the separation of
powers doctrine.

¶24. The State further argues that any perceived double jeopardy violation in this
case is really a product of legislative drafting. The State asserts that a fifteen-year
prison term could have been imposed on Guillaume had the legislature increased the
prison time for felony assault within the felony assault statute and excluded the
offense of felony assault in the application of the weapon enhancement statute. The
State argues that the legislature's ability to modify the felony assault penalty to
achieve the same result that is achieved in the present sentencing scheme
demonstrates that no double jeopardy violation exists in this case. We disagree. The
fact that modification of the felony assault statute could achieve the same result as
the present sentencing scheme does not mean that no double jeopardy violation exists
in this case.

¶25. We reverse the District Court's sentencing order and remand for rehearing and
resentencing consistent with this opinion.

/S/ WILLIAM E. HUNT, SR.

We Concur:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (11 of 18)4/9/2007 4:20:14 PM
 No

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

Justice W. William Leaphart, specially concurring.

¶26. I specially concur with the opinion of the Court and I write separately to
address some of the comments set forth in the dissent. Justice Nelson posits that,
Article II, Section 25 of the Montana Constitution, by its plain language, clearly
provides less protection against double jeopardy than the Fifth Amendment to the U.
S. Constitution. He quotes the language of Article II, Section 25--"No person shall be
again put in jeopardy for the same offense previously tried in any jurisdiction"--and
observes that there "is certainly no textual mention of any protection from multiple
punishments." From this observation, he suggests that the only reason that Article II,
Section 25 affords protection against multiple punishments is because the Fifth
Amendment does and because, under well accepted principles of federalism, we
cannot interpret our constitution as providing any less protection.

¶27. Justice Nelson attributes more textual substance to the Fifth Amendment than it
is due. In fact, when one compares the language of the two constitutional guarantees,
the Montana Constitution is the more specific. The Fifth Amendment merely states:
"[N]or shall any person be subject for the same offense to be twice put in jeopardy of
life or limb[.]" U.S. Const. amend. V. There is no mention of any protection other
than not being twice placed in jeopardy for the same offense. Contrary to the logic of
Justice Nelson's dissent, the Fifth Amendment makes no textual mention of
punishment, multiple punishment, prosecutions or offenses "tried" in any
jurisdiction. It merely invokes the concept of "jeopardy."

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (12 of 18)4/9/2007 4:20:14 PM
 No

¶28. Both this Court and the U.S. Supreme Court have interpreted their respective
double jeopardy clauses as offering protection against three distinct abuses: a second
prosecution for the same offense following an acquittal; a second prosecution for the
same offense following a conviction; and multiple punishments for the same offense.
State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250; United States v. Halper
(1989), 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496. These
interpretations cannot be traced to the plain language of either constitutional
provision since neither constitution makes any reference to prosecutions,
punishments, convictions or acquittals. Rather, the interpretations derive from the
concept of jeopardy--a term that is used in both documents. Jeopardy is the danger of
conviction and punishment incurred by a defendant when he or she is put on trial for
a criminal charge. See Black's Law Dictionary 835 (6th ed. 1990).

¶29. Thus, when we interpret the Montana Constitution as affording protection
against multiple punishments, we do so, not because the text of the United States
Constitution sets this as an express minimum--indeed, it makes no direct reference to
punishment--but because the Montana Constitution, like the U.S. Constitution,
specifically protects against double "jeopardy." In addressing the question of
whether Article II, Section 25 protects against enhanced punishments for use of a
weapon, we therefore interpret the concept of "jeopardy" as that word is used in the
text of the Montana Constitution, independently of how it has been interpreted in the
U.S. Constitution.

¶30. As both the Court and the dissent recognize, the Bill of Rights Committee saw to
it that our constitution prohibits the existing federal practice of allowing a person
already tried in another jurisdiction to be again tried by the State of Montana. This
fact alone illustrates that "jeopardy," as that word is used in our constitution, has a
more expansive meaning than it does in the federal constitution. Given that the
concept of "jeopardy" appears independently in the Montana Constitution and given
further that it offers broader protection from multiple prosecutions than the U.S.
Constitution, why would we turn to the federal courts to ascertain whether or not the
Montana Constitution protects against enhanced punishments? Where in the
transcripts of the Constitutional Convention is there any support for the proposition,
adopted by the U.S. Supreme Court in Missouri v. Hunter (1983), 459 U.S. 359, 103 S.
Ct. 673, 74 L.Ed.2d 535, that the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the legislature
intended? According to the U.S. Supreme Court's interpretation of the Fifth

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (13 of 18)4/9/2007 4:20:14 PM
 No

Amendment, the protection against multiple punishments has no inherent
constitutional significance; it means only what Congress, or the legislature, through
statutory enactment, says it means. However, as I stated in my dissent in State v.
Zabawa (1996), 279 Mont. 307, 928 P.2d 151, "[c]onstitutional guarantees are not
mere vessels to be left empty or filled at the whim of the legislative branch. Rather,
they have intrinsic meaning which is independent of any legislative intent." Zabawa,
279 Mont. at 323-24, 928 P.2d at 161 (Leaphart, J., dissenting). If the prohibition
against multiple punishments is to have any efficacy, it must have some constitutional
essence which is beyond legislative amendment or interpretation. If, as both state and
federal courts agree, double jeopardy proscribes multiple punishments for the same
offense, the inescapable conclusion is that the enhancement provision of § 46-18-221,
MCA, is an additional and second punishment for use of a weapon in an assault. As
such, it is a multiple punishment in violation of the constitutional prohibition against
double jeopardy found in Article II, Section 25 of the Montana Constitution.

¶31. If the protection against double punishments has any meaning, it must certainly
encompass a statute which "enhances" punishment for use of a weapon after a
defendant has already been punished for use of a weapon in the underlying offense.
To hold otherwise, leaves the constitutional guarantee an empty, meaningless
promise.

/S/ W. WILLIAM LEAPHART

Justice James C. Nelson dissents.

¶32. I cannot agree with the Court's decision in this case. As facially appealing as is
its approach to the question of whether Montana's double jeopardy provision, Article
II, Section 25, provides greater protection against multiple punishments than the
does the Fifth Amendment, the majority's conclusion that it does is not supported by
a shred of legal authority. Reduced to its essentials, the Court concludes that Article
II, Section 25, provides this greater protection for no other reason than that we say it
does.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (14 of 18)4/9/2007 4:20:14 PM
 No

¶33. Understandably, the Court does not rely on any argument made by Guillaume.
His entire brief and oral argument was devoted, not to developing any legal basis for
the majority's holding here, but, rather, to simply rehashing why, in State v. Zabawa
(1996), 279 Mont. 307, 928 P.2d 151, the dissent was right and the Court was wrong.
He, like the majority, utterly failed to develop any independent and legally
supportable theory based upon the language of Article II, Section 25, or its history in
the 1971-72 Constitutional Convention that would justify the holding that this Court
has reached. The Court does no better in its opinion. In fact, the majority pointedly
ignores the legislative history of Article II, Section 25--no doubt because it could not
find in the transcripts of the Constitutional Convention any support for its
interpretation.

¶34. Indeed, it is clear that the Bill of Rights Committee was concerned, not with
expanding the protections already provided by the Fifth Amendment, but rather, it
was determined only that Montana's Constitution prohibit the existing federal
practice of allowing a person already tried in one jurisdiction to be again tried by the
State. See Montana Constitutional Convention,Verbatim Transcript, Vol. II, at p.
641 and Vol. V, at pp. 1776-79.

¶35. In truth, by its plain language, Article II, Section 25, provides less protection
against double jeopardy than does the Fifth Amendment. In pertinent part,
Montana's double jeopardy clause states unambiguously that:

No person shall be again put in jeopardy for the same offense previously tried in any
jurisdiction.

There is no mention in Article II, Section 25, of any protection other than not being tried
twice for the same offense. There is certainly no textual mention of any protection from
multiple punishments. As the majority does recognize, the only reason why Article II,
Section 25, provides as much protection as does the Fifth Amendment is because we
cannot constitutionally interpret Montana's Double Jeopardy Clause as providing less--
notwithstanding that would be the obvious conclusion from a simple reading of the text of
Article II, Section 25, itself. And, it is precisely because the protections afforded by
Article II, Section 25, are coextensive with the Fifth Amendment that our decision in
Zabawa-- which was based upon federal law--remains correct.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (15 of 18)4/9/2007 4:20:14 PM
 No

¶36. The majority states that it refuses to "pay lip service" to the fundamental
principle of double jeopardy. More correctly, it refuses to pay lip service to the plain
language of Article II, Section 25. Refusing "to march lock step" with the federal
constitution is commendable and appropriate where Montana's Constitution actually
provides more protection than does its federal counterpart--and our State
constitution does in many notable respects. Here, however, the Court has gone
beyond refusing to march lock step. Rather, in creating from whole cloth a greater
double jeopardy protection than is contained in the plain language of Article II,
Section 25, and in its history at the Constitutional Convention and in the federal
constitution, the majority has marched defiantly backwards through the parade,
around the bend and into the swamp.

¶37. Similarly, Justice Leaphart's attempt to shore up the majority opinion is
unavailing. While state courts interpreting their own constitutional double jeopardy
clauses are circumscribed by the U.S. Supreme Court's interpretation of the double
jeopardy clause of the Fifth Amendment to provide no less protection than does the
federal constitution, that is not to say that even this country's highest court is in
agreement that double jeopardy encompasses the concept of multiple punishments.

¶38. Like Article II, Section 25, the double jeopardy clause of the Fifth Amendment
refers only to "jeopardy," not punishment--"nor shall any person be subject for the
same offence to be twice put in jeopardy of life or limb." In his dissent in Dept. of
Revenue of Montana v. Kurth Ranch (1994), 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d
767, and noting this lack of textual reference to punishment, Justice Scalia traces in
some detail the historical and jurisprudential history of the federal double jeopardy
clause and concludes that "'[t]o be put in jeopardy' does not remotely mean 'to be
punished,' . . . [and that] . . . by its terms, this provision prohibits, not multiple
punishments, but only multiple prosecutions." Kurth, 511 U.S. at 798, 803, 114 S.Ct.
at 1955, 1958 (Scalia, J., dissenting, citing Chief Justice Stone in In re Bradley (1943),
318 U.S. 50, 63 S.Ct. 470, 87 L.Ed 608 and Justice Frankfurter in United States ex rel.
Marcus v. Hess (1943), 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443). Justice Scalia points
out that the belief that there is a multiple-punishment component to the double
jeopardy clause can be traced to dictum in Ex parte Lange (1874), 18 Wall. 163, 21 L.
Ed. 872, but that it was not until United States v. Halper (1989), 490 U.S. 435, 109 S.
Ct. 1892, 104 L.Ed.2d 487, that the Court actually invalidated a legislatively
authorized successive punishment on the basis of the this dictum. Kurth, 511 U.S. at
800, 114 S.Ct. at 1956, (Scalia, J., dissenting).

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (16 of 18)4/9/2007 4:20:14 PM
 No

¶39. Halper has, of course, now been abrogated, see Hudson v. United States (1997),
522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450), and the U.S. Supreme Court has
returned to its pre-Halper interpretation of the Double Jeopardy Clause which
acknowledges a constitutional prohibition against multiple punishments but requires
successive criminal prosecutions. Hudson, 522 U.S. at ___, 118 S.Ct. at 493, (citing,
among other cases, Missouri v. Hunter (1983), 459 U.S. 359, 366, 103 S.Ct. 673, 678,
74 L.Ed.2d 535, for the proposition that in the constitutional sense, jeopardy
describes the risk that is traditionally associated with a criminal prosecution and
then only when such occurs in successive proceedings).

¶40. Accordingly, we necessarily come full circle. There is simply no jurisprudential
basis for concluding that Article II, Section 25, provides any greater double jeopardy
protection than does the Fifth Amendment, as interpreted by the U.S. Supreme
Court. And, it is precisely because the protections afforded by Article II, Section 25,
are coextensive with the double jeopardy clause of the Fifth Amendment that our
decision in Zabawa--which was based upon federal law, namely Missouri v. Hunter--
remains correct.

¶41. While the majority chooses to ignore the intent of the legislature in enacting the
weapons enhancement statute, § 46-18-221, MCA, we are not at liberty to declare this
statute unconstitutional in its application on the basis of our interpolation into
Article II, Section 25, of language that the people themselves did not include in this
constitutional provision when they enacted it. Indeed, if, as here, this Court can give
any meaning it desires to a constitutional provision without any linkage to its text or
history, then there really is no point in having a constitution at all.

¶42. I dissent.

/S/ JAMES C. NELSON

Chief Justice J. A. Turnage and Justice Karla M. Gray concur in the foregoing dissent.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (17 of 18)4/9/2007 4:20:14 PM
 No

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-291%20Opinion.htm (18 of 18)4/9/2007 4:20:14 PM