Persistent Felony Offender Status in MT DUI

In August of 2011, David Kime was charged with felony DUI, careless driving, and operating a motor vehicle while a habitual traffic offender. These charges came about following a traffic accident where Kime drove through an intersection and hit another vehicle. In January of 2012, the State filed notice that it intended to seek persistent felony offender status in Kime’s case. The basis for this was Kime’s May 2009 conviction for felony DUI. Kime objected to the persistent felony offender designation, but his objection was denied by the District Court.

Ultimately, Kime pled guilty to the felony DUI charge and the State dismissed the charge of driving while a habitual traffic offender. A bench trial was held on the careless driving charge which resulted in his conviction. Kime was sentenced to ten years at the Montana State Prison with no time suspended as a persistent felony offender for the felony DUI, and to 30 days in jail on the careless driving conviction. He was given credit for 246 days of time served.

On appeal, Kime argued that the District Court erred in sentencing him as a persistent felony offender. His position was that the persistent felony offender statutes conflicted with the sentencing rules provided for felony DUI. And because the persistent felony offender statutes are general, the felony DUI sentencing statute is specific. Therefore, the DUI statute (as the more specific option) should over ride. He acknowledged that this was contrary to the Supreme Court’s precedent in State v. Damon (2005 MT 218). The Court disagreed stating that “[i]n the decisions following Damon, this Court has clearly established that the intent of the persistent felony offender statutes is that they replace the sentences for the underlying felony.” Because the persistent felony offender sentencing provisions replace the underlying felony offense there is no need to resort to the rules of statutory construction, according to the Court. It’s the purpose of the felony offender statutes to conflict with the other sentencing statutes, it’s a feature not an error.

Kime also challenged his sentencing to 30 days in jail for the careless driving, arguing that the District Court exceeded its authority when it imposed that sentence.Under 61-8-711(2) and -716, MCA, the only penalty for careless driving is a fine between $10 and $100. The Supreme Court remanded the case with instructions to the District Court to strike the illegal jail time imposed in the sentence for careless driving.

Finally, Kime raised an argument of ineffective assistance of counsel. Specifically, he said that his counsel’s failure to argue against the sentence imposed for the DUI was per se unreasonable. However, the Supreme Court pointed to numerous statements by Kime where he expressed a willingness to accept anything the District Court decided on, so long as it did not include any suspended time. The Court believed that Kime’s attorney followed his instructions, and did not provide deficient representation.

State v. Kime, 2013 MT 14

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