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No. 99-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 89
299 Mont. 226
999 P. 2d 313
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CORY ROSALES,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
Honorable Jeffrey M. Sherlock, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Elizabeth S.
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Baker, Assistant Attorney General, Helena, Montana
Mike McGrath, County Attorney; Carolyn Clemens, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: February 17, 2000
Decided: April 11, 2000
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1 In light of this Court's decision in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312,
Cory Rosales moved the First Judicial District Court, Lewis and Clark County, to amend his sentence
for the conviction of felony assault and the use of a weapon pursuant to § 46-18-221, MCA. The District
Court dismissed his motion due to the running of the five-year statute of limitations for postconviction
relief. Rosales appeals. We affirm the District Court.
¶2 On appeal, Rosales asks us to reconsider two procedural bars effective in a case similar to his, State v.
Nichols, 1999 MT 212, 295 Mont. 489, 986 P.2d 1093. Specifically, he asks us to reverse our decision
on the application of the statute of limitations and the bar against retroactive application of the law. Cf.
Nichols (holding that both procedural bars precluded the defendant from moving the court to amend his
sentence on the basis of Guillaume). Rosales asserts that it would be inequitable for us to completely bar
him from making a claim for relief since our decision in Guillaume makes the weapon enhancement
portion of his sentence unconstitutional.
¶3 Because we affirm the District Court's decision based upon the statute of limitations, we do not
consider Rosales's argument in regard to retroactive application of the law.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Rosales pled guilty to the charge of felony assault in violation of § 45-5-202(2)(b), MCA (1993), for
accelerating his vehicle toward a police officer who was attempting to stop him. He received a deferred
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imposition of sentence both for felony assault and for use of a weapon. However, on January 28, 1994,
the District Court amended its judgment and revoked Rosales's deferred sentence because he violated its
conditions. The District Court sentenced Rosales to the custody of the Department of Corrections and
Human Services for a period of ten years for the crime of felony assault and an additional two years, to
run consecutively, for the use of a weapon in violation of § 46-18-221, MCA.
¶5 On May 5, 1999, Rosales filed a "Motion to Amend Sentence and/or Post Judgment Relief,"
contending that the additional two years he was sentenced for use of a weapon put him in double
jeopardy based on Guillaume, which was decided just two-and-one-half months earlier. In its order on
the motion and again in its order on a motion to reconsider, which Rosales appeals, the District Court
concluded that Rosales was precluded from relief by the running of the five-year statute of limitations
for postconviction relief, citing § 46-21-102, MCA (1995).
¶6 Rosales filed his motion approximately five years and three months after the District Court amended
his sentence and just two-and-one-half months after our opinion in Guillaume was issued. He argues, in
part, that the statute of limitations should be waived because applying it in his case results in a
miscarriage of justice.
DISCUSSION
¶7 The postconviction statute of limitations is a jurisdictional limit on litigation and is waived only when
there is a clear miscarriage of justice, one so obvious that the judgment is rendered a complete nullity.
See Petition of Gray (1995), 274 Mont. 1, 2, 908 P.2d 1352, 1352 (citing State v. Perry (1988), 232
Mont. 455, 758 P.2d 268). Despite Rosales's argument that this Court has inconsistently interpreted the
"miscarriage of justice" exception, we have repeatedly held that the exception does not apply to
postconviction claims unless the defendant alleges newly-discovered evidence. In addition, the newly-
discovered evidence must establish that the defendant did not commit the offense. See Beach v. Day
(1996), 275 Mont. 370, 374, 913 P.2d 622, 624; Hawkins v. Mahoney, 1999 MT 82, ¶ 12,
294 Mont. 124, ¶ 12, 979 P.2d 697, ¶ 12;State v. Redcrow, 1999 MT 95, ¶¶ 33-34, 37, 294 Mont. 252, ¶¶
33-34, 37, 980 P.2d 622, ¶¶ 33-34, 37 (miscarriage of justice refers to actual, not legal, innocence). This
is the law we applied in Nichols.
¶8 Rosales contends that we should apply the "miscarriage of justice" exception as the Court did in
Perry, instead. There, the defendant filed a motion for a new trial when a witness who incriminated
Perry at trial recanted his trial testimony. Despite the State's argument that the statute of limitations had
run, we allowed the defendant's claim, recognizing that barring the claim would have caused him to be
held in violation of his constitutional rights and would have deprived him of a method of redress
regardless of his diligence or the justness of his claim. We have since stated that our holding in Perry is
unique to its facts. See State v. Gollehon (1995), 274 Mont. 116, 120, 906 P.2d 697, 700. Thus, we do
not apply it here.
¶9 Rosales suggests that his own exigent circumstances support the application of the "miscarriage of
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justice" exception. He contends that the sentence he received is, in part, unconstitutional; that he timely
filed a motion to amend his sentence when Guillaume was decided; and that there is no other remedy
available to him to obtain relief. The State points out that this is not entirely true--Rosales never made a
claim on direct appeal.
¶10 In addition, Rosales suggests that we should focus our analysis on legal error rather than actual
innocence of the crime charged. Citing Davis v. United States (1974), 417 U.S. 333, 94 S.Ct. 2298, 41 L.
Ed.2d 109, in which the United States Supreme Court allowed for the retroactive application of the law
when the act of which the defendant was convicted was no longer held to be illegal, Rosales argues that
there is a miscarriage of justice where a case that is time barred would otherwise be decided by a
retroactive application of the law. Rosales believes that in his case we should allow retroactive
application of the law under the exception we recognize when the new law puts primary, private conduct
beyond the power of the criminal law to proscribe. See State v. Egelhoff (1995), 272 Mont. 114, 126,
900 P.2d 260, 267. However, we conclude that it is inappropriate to correlate these two separate
procedural bars in this way.
¶11 In recognition of the importance of applying a procedural bar regularly and consistently, we do not
alter the conditions upon which we will waive the applicable statute of limitations.
¶12 Affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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