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State v. LERVOLD

Court: Montana Supreme Court
Date filed: 2011-09-20
Citations: 272 P.3d 125
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                                                                                            September 20 2011


                                           DA 11-0173

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2011 MT 234N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DAVID L. LERVOLD,

              Defendant and Appellant.




APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV 1320A
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        David L. Lervold, self-represented, Billings, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; Mark Mattioli, Assistant Attorney
                        General, Helena, Montana

                        Marty Lambert, County Attorney; Erin R. Murphy, Deputy County Attorney,
                        Bozeman, Montana


                                                         Submitted on Briefs: September 7, 2011
                                                                    Decided: September 20, 2011


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     David L. Lervold (Lervold) appeals the denial of his petition for postconviction relief

(“Petition”) by the Eighteenth Judicial District Court, Gallatin County. We affirm.

¶3     Lervold was convicted of three counts of DUI in 2002 and 2003. After sentencing,

his various suspended sentences were revoked several times. The present appeal stems from

his most recent revocation in two cases, DC-02-081 and DC-03-109. He was sentenced on

April 14, 2009, to five year prison terms in each case, to run concurrently. Lervold did not

appeal.

¶4     On November 28, 2010, Lervold filed an affidavit of inability to pay (“Affidavit”), in

anticipation of filing a petition for postconviction relief. The District Court denied Lervold’s

request for indigent status. On December 23, 2010, Lervold filed financial information

regarding his Affidavit. On December 28, 2010, the District Court ordered Lervold to pay a

$20 filing fee, and further stated “once the filing fee has been received, Petitioner Lervold’s

Petition for Post-conviction relief shall be filed.” Lervold paid the filing fee and his Petition

was filed on January 18, 2011.




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¶5     After the State responded, the District Court denied Lervold’s Petition as untimely

under § 46-21-102(1), MCA, and it found that the exception in § 46-21-102(2), MCA, did

not apply.

¶6     We review the denial of a petition for postconviction relief to determine whether the

district court’s findings of fact are clearly erroneous and whether its conclusions of law are

correct. Davis v. State, 2004 MT 112, ¶ 13, 321 Mont. 118, 88 P.3d 1285.

¶7     Section 46-21-102, MCA, provides:

       (1) Except as provided in subsection (2), a petition for the relief referred to in
       46-21-101 may be filed at any time within 1 year of the date that the
       conviction becomes final. A conviction becomes final for purposes of this
       chapter when:
              (a) the time for appeal to the Montana supreme court expires;
              (b) if an appeal is taken to the Montana supreme court, the time for
              petitioning the United States supreme court for review expires; or
              (c) if review is sought in the United States supreme court, on the
              date that that court issues its final order in the case.
       (2) A claim that alleges the existence of newly discovered evidence that, if
       proved and viewed in light of the evidence as a whole would establish that the
       petitioner did not engage in the criminal conduct for which the petitioner was
       convicted, may be raised in a petition filed within 1 year of the date on which
       the conviction becomes final or the date on which the petitioner discovers, or
       reasonably should have discovered, the existence of the evidence, whichever is
       later.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are legal and are controlled by settled Montana law, which the District Court

correctly interpreted. It is undisputed that Lervold was sentenced on April 14, 2009, and that

he did not appeal. Therefore, his conviction became final on June 14, 2009. Section 46-21-


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102(1)(a), MCA. He had one year from that date, until June 14, 2010, to file a petition for

postconviction relief. Section 46-21-102(1), MCA. He did not file within the one year

period by any calculation. Further, § 46-21-102(2), MCA, does not apply.

¶9    Affirmed.

                                                /S/ MICHAEL E WHEAT



We Concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ JIM RICE




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