No. 04-591
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 45N
BRENT M. BROWN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV 2003-208A
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brent M. Brown, Pro Se, Deer Lodge, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: February 1, 2005
Decided: February 22, 2005
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. Its case title, Supreme Court cause number and disposition shall be included
in this Court's quarterly list of nonciteable cases published in the Pacific Reporter and
Montana Reports.
¶2 In 1996, Brent Matthew Brown pled guilty to deliberate homicide in the Eleventh
Judicial District Court, Flathead County. He was ordered to pay restitution and his sentence
was enhanced based on his use of a dangerous weapon in the offense. In 2003, Brown filed
a petition for postconviction relief in the District Court. The court dismissed the petition as
procedurally barred. Brown appeals.
¶3 On appeal, Brown argues (1) the sentencing court lacked statutory authority to impose
restitution; and (2) the enhancement to his prison sentence for use of a weapon violates both
his protection against double jeopardy under the United States Constitution and (3) his right
to due process of law.
¶4 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. All three issues raised by Brown are clearly barred from review under settled
Montana law. Brown's postconviction petition is time-barred by § 46-21-102, MCA (1995),
which allowed him five years after his conviction became final in which to file a petition for
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postconviction relief. The time-bar is jurisdictional. Peña v. State, 2004 MT 293, ¶ 35, 323
Mont. 347, ¶ 35, 100 P.3d 154, ¶ 35. In addition, Brown's claims could have been raised on
direct appeal; his restitution and due process claims are thus procedurally barred under § 46-
21-105(2), MCA. See Peña, ¶¶ 36-37.
¶5 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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