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No. 99-596
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 192
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ALBERT F. CHARLO,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Albert F. Charlo, Pro se, Deer Lodge, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: March 23, 2000
Decided: July 18, 2000
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Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
¶1 By Information filed in the District Court for the Fourth Judicial District in Missoula
County, the Defendant, Albert Charlo (Charlo), was charged with aggravated assault, a
felony, in violation of § 45-5-202, MCA (1985). Following a jury trial in 1986, Charlo
was convicted of aggravated assault and sentenced to 20 years in prison for the aggravated
assault and an additional 10 years for using a dangerous weapon during the commission of
the offense. In 1999, Charlo filed a petition for postconviction relief in the District Court.
The District Court dismissed Charlo's petition for postconviction relief as untimely.
Charlo appeals from the District Court's dismissal of his petition. We affirm the order of
the District Court.
¶2 The sole issue presented on appeal is whether the District Court erred when it
dismissed Charlo's petition for postconviction relief.
FACTUAL BACKGROUND
¶3 On November 14, 1985, the State filed an Information against Charlo which charged
him with the offense of aggravated assault, a felony, in violation of § 45-5-202, MCA
(1985). The Information stated that "on or about October 3, 1985, the above-named
Defendant purposely or knowingly caused serious bodily injury to Walter 'Sonny' Steele
by stabbing him with a knife."
¶4 A jury trial was held on March 4 through 11, 1996. Charlo was convicted of aggravated
assault and judgment was entered against him on April 16, 1986. The District Court
sentenced Charlo to 20 years for the aggravated assault and 10 years for the use of a
dangerous weapon in the commission of the aggravated assault. The District Court ordered
Charlo's sentences to run consecutively. Charlo's conviction and sentence were affirmed
by this Court on March 31, 1987, in State v. Charlo (1987), 226 Mont. 213, 735 P.2d 278.
¶5 On April 14, 1999, Charlo filed a petition for postconviction relief in the District Court.
Charlo argued that the imposition of the additional ten-year sentence for using a dangerous
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weapon violated the prohibition against double jeopardy found at Article II, Section 24 of
the Montana Constitution, as interpreted in State v. Guillaume, 1999 MT 29, 293 Mont.
224, 975 P.2d 312.
¶6 On August 4, 1999, the District Court applied the applicable five-year statute of
limitations pursuant to § 46-21-102, MCA, and dismissed Charlo's petition for
postconviction relief, concluding that, because this Court's holding in Guillaume did not
apply to Charlo's case, no fundamental miscarriage of justice would occur based on the
District Court's application of the procedural bar to Charlo's petition.
STANDARD OF REVIEW
¶7 The standard of review of a district court's denial of a petition for postconviction relief
is whether the district court's findings of fact are clearly erroneous and whether its
conclusions of law are correct. See State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9,
988 P.2d 299, ¶ 9.
DISCUSSION
¶8 Did the District Court err when it dismissed Charlo's petition for postconviction relief?
¶9 Charlo contends that his sentence of 20 years for the aggravated assault and the
additional sentence of 10 years for use of a dangerous weapon in the commission of the
aggravated assault, is in violation of the prohibition against double jeopardy found at
Article II, section 25 of the Montana Constitution as interpreted in Guillaume. There we
held that a person convicted of felony assault, which requires the use of a weapon as an
element of the underlying offense, is protected by the double jeopardy provision of the
Montana Constitution from receiving an enhanced sentence for using a dangerous weapon.
¶10 In response, the State asserts that Charlo's petition for postconviction relief, which
was filed in April 1999, is barred by the five-year statute of limitations. Therefore, the
State contends that pursuant to State v. Redcrow, 1999 MT 95, 294 Mont. 252, 980 P.2d
622, Charlo's petition cannot be considered absent a fundamental miscarriage of justice.
The State argues that no fundamental miscarriage exception applies in this case because
Guillaume dealt with felony assault which requires use of a weapon as an element of the
offense, whereas Charlo's aggravated assault conviction did not require use of a weapon as
an element of the offense. Therefore, the State contends that Guillaume does not apply.
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¶11 In Hawkins v. Mahoney, 1999 MT 82, 294 Mont. 124, 979 P.2d 697, we held that "[t]
o determine whether a petition is timely, this Court looks to the statute of limitations in
effect at the time the petition for postconviction relief is filed, not to the statute in effect at
the time of the conviction." Hawkins, ¶ 9. Section 46-21-102, MCA, was amended in
1991, and remained a five-year statute of limitations until further amendments in 1997
reduced the period of limitation to one year. However, as we stated in Hawkins:
The 1997 amendments only apply to proceedings in which the conviction became
final after April 24, 1997, or during the 12 months prior to April 24, 1997, if a
petition under Title 46, chapter 21, has been filed within the 12 months after April
24, 1997.
Hawkins, ¶ 10.
¶12 Accordingly, because Charlo's conviction became final on March 31, 1987, and his
petition was filed on April 14, 1999, the five-year statute of limitations applies.
Nevertheless, Charlo's petition was filed 12 years after his conviction became final, and is
clearly in violation of the five-year statute of limitations.
¶13 However, in Redcrow, we held that there is a limited exception to the procedural bar
of § 46-21-102, MCA. Redcrow, ¶ 31. We further stated that "waiver of the time bar is
only justified by a clear miscarriage of justice, one so obvious that the judgment is
rendered a complete nullity." Redcrow, ¶ 34.
¶14 In Guillaume, this Court held that the 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. Guillaume, ¶ 16. In Guillaume, we stated:
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
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with Guillaume that this form of double punishment is exactly what double jeopardy
was intended to prohibit.
Guillaume, ¶ 18.
¶15 Recently, in State v. Keith, 2000 MT 23, 57 St.Rep. 120, 995 P.2d 966, this Court held
that the application of the weapon enhancement statute, § 46-18-221, MCA, to a
conviction in which the underlying offense does not require use of a weapon as an element
of the crime, did not constitute double jeopardy. In Keith, we stated the following:
Nevertheless, Keith argues that if she had not fired the gun she would not have been
convicted of and received a 10-year sentence for the offense of criminal
endangerment. She asserts that the additional 10-year sentence she received under
the weapon enhancement statute is a double jeopardy violation because she has been
punished twice for the use of a weapon as in Guillaume.
Keith, ¶ 38.
Keith misses the point of the double jeopardy analysis under Guillaume. That
analysis is based on the statutory definition of the underlying offense, i.e., whether
one of the elements of the offense requires proof of the use of a weapon. Criminal
endangerment does not. The fact that Keith used a weapon when she committed that
offense and was thus sentenced to an additional term under the weapon
enhancement statute did not result in multiple punishment for the same offense
because the offense of criminal endangerment, by its own terms, does not
specifically increase a defendant's punishment for the use of a weapon. Hence,
application of the weapon enhancement statute to the crime of criminal
endangerment is not a double jeopardy violation.
Keith, ¶ 39.
¶16 Charlo's assertion that Guillaume applies to his conviction for aggravated assault is
also incorrect. Charlo was convicted of aggravated assault in violation of § 45-5-202,
MCA (1985). Aggravated assault requires that a person "purposely or knowingly causes
serious bodily injury to another." See § 45-5-202, MCA (1985). The offense of aggravated
assault does not require the use of a weapon as an element of the offense. Therefore, when
Charlo received an enhanced sentence for using a weapon in the commission of the
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aggravated assault, pursuant to § 46-18-221, MCA, he was not being punished twice for
the use of a weapon. Accordingly, our holding and rationale in Guillaume has no
application to Charlo's case.
¶17 Charlo's petition for postconviction relief is procedurally barred by § 46-21-102,
MCA. Because this Court's rationale in Guillaume does not apply, and because Guillaume
is the sole basis for Charlo's petition, Charlo is unable to show that the fundamental
miscarriage of justice exception should be applied in this case. Accordingly, we conclude
that the District Court did not err when it dismissed Charlo's petition for postconviction
relief on the basis that it was time barred pursuant to § 46-1-102, MCA.
¶18 We affirm the judgment of the District Court.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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