96-687




                                                                              No. 96-687

                                               IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                                 1997



                                                            IN RE THE MATTER OF THE
                                                              DRIVER'S LICENSE OF
                                                            CHRISTOPHER T. ANDERSON,

                                                                   Petitioner and Appellant,

                                                                                     v.

                                                              DEPARTMENT OF JUSTICE,

                                                                  Respondent and Respondent.




                    APPEAL FROM:District Court of the Thirteenth Judicial District,
                                       In and for the County of Yellowstone,
                                   The Honorable G. Todd Baugh, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                              For Appellant:

                                           Terry L. Seiffert, Attorney at Law, Billings, Montana

                                                                             For Respondent:

                                              Hon. Joseph P. Mazurek, Attorney General
                                     Pamela P. Collins, Ass't Attorney General, Helena, Montana

                                              Dennis Paxinos, Yellowstone County Attorney
                                        Brent Brooks, Deputy County Attorney, Billings, Montana




                                                                               Submitted on Briefs: May 8, 1997

                                                                               Decided:               August 1, 1997
                                                                               Filed:

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                                                       __________________________________________
                                                                     Clerk

                           Justice Karla M. Gray delivered the Opinion of the Court.


        Christopher T. Anderson (Anderson) appeals from the order of the Thirteenth
  Judicial District Court, Yellowstone County, which denied his petition challenging
                                            the
  declaration by the Montana Department of Justice (Department) that he is a habitual
     traffic offender and the Department's revocation of his driver's license. We
                                        reverse and
                                          remand.
    The sole issue before us is whether the District Court erred in denying Anderson's
                                         petition.
     On or about May 7, 1996, the Department notified Anderson that, according to its
     records, he had accumulated 30 or more conviction points related to the use or
                                         operation
   of a motor vehicle within a 3-year period. The records reflected convictions for
                                          driving
   under the influence of alcohol (DUI) on September 20, 1995, November 27, 1995, and
          April 11, 1996. Each DUI conviction was assigned 10 conviction points.
       Under such a circumstance, the Department is required to declare the driver a
 habitual traffic offender and to revoke the person's driver's license for 3 years.
                                            The
     notification so advised Anderson, and also advised that he could challenge the
                                        declaration
    and revocation by petitioning the district court in the county of his residence
                                         within 30
                                           days.
   Anderson timely filed a petition in the District Court challenging the Department's
     actions. He contended that the purported DUI conviction on April 11, 1996, was
    erroneous because his conviction date for that DUI was November 14, 1991. As a
                                          result,
 Anderson argued that he had not accumulated 30 or more conviction points within a 3-
year period under      61-11-203(2), MCA, and the Department's habitual traffic offender
                 declaration and driver's license revocation were invalid.
    The District Court ordered the parties to submit an agreed statement of facts and
 memoranda of law. After the parties complied, the District Court entered its order
                      denying Anderson's petition. Anderson appeals.
         Did the District Court err in denying Anderson's petition challenging the
           Department's declaration that he is a habitual traffic offender and its
                             revocation of his driver's license?
     In Montana, a habitual traffic offender is a person who, within a 3-year period,
   accumulates 30 or more "conviction" points relating to the use or operation of a
                                           motor
vehicle. Section 61-11-203(2), MCA. " 'Conviction' means a finding of guilt by duly
    constituted judicial authority. . . ." Section 61-11-203(1), MCA. In the case
                                         presently
   before us, it is clear that if Anderson was convicted of DUI on November 14, 1991,
   rather than on April 11, 1996, he did not accumulate sufficient conviction points

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                                        within
a 3-year period to support the Department's declaration that he is a habitual traffic
 offender and revocation of his driver's license. Thus, it is necessary to carefully
       scrutinize the record before us to determine the correct conviction date.
      According to the record, Anderson was arrested on the DUI charge at issue on
 October 26, 1991, found guilty by the Billings City Court (City Court) on November
                                          14,
 1991, and sentenced on the same date. He appealed to the district court where, for
 unknown reasons, the case languished. On April 11, 1996, the district court signed
                                          an
order, based on a stipulation by the parties, dismissing the appeal and remanding to
                                          the
   City Court for final imposition of sentence. The abstract of record relating to
  proceedings on remand in the City Court, signed by the Clerk of the City Court and
                                         dated
 April 30, 1996, is the only document before us relating to those proceedings. The
                                         Clerk
   wrote in "4-11-96" after "date of conviction" and checked boxes captioned "found
                                 guilty" and "judge."

   The Department's declaration that Anderson is a habitual traffic offender is based
      on its contention that Anderson had an "April 11, 1996, conviction." That
                                     contention is
premised entirely on the district court's April 11, 1996, order dismissing Anderson's
  appeal and remanding for final imposition of sentence, and the abstract of record
                                          from
the City Court containing an identical conviction date. The problem is that, on this
 record, no "duly constituted judicial authority" found Anderson guilty of DUI on
                                         that
  date and, as a result, no conviction occurred at that time. See     61-11-203(1),
                                         MCA.
     First, it is important to recall that the City Court convicted Anderson of--and
  sentenced him on--the DUI at issue on November 14, 1991. Anderson appealed for a
   trial de novo, but the district court ultimately dismissed his appeal from that
                                      conviction
pursuant to the parties' stipulation and remanded for final imposition of sentence.
                                           The
district court did not find Anderson guilty of DUI and, thus, did not "convict" him
                                            as
                  defined in    61-11-203(1), MCA, on April 11, 1996.
    With regard to the abstract of record concerning the remand to the City Court, it
     is clear that the abstract reflects a conviction date of April 11, 1996, and
                                       indicates
"found guilty" and "judge." It is equally clear, however, that the City Court had no
statutory authority to find Anderson guilty again, at that time, of the offense for
                                         which
     it had already convicted and sentenced him in November of 1991. Nor does the
        Department cite to any case law under which such authority would exist.
   Moreover, the district court's dismissal of Anderson's appeal remanded to the City
Court only for imposition of sentence already pronounced. While we prohibited such a
remand in Rickett v. City of Billings (1993), 262 Mont. 339, 864 P.2d 793, that case
                                            is

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          inapplicable here.
                           In Rickett, the pro se defendant appealed a city court
                                    conviction to the
district court and then failed to appear for a scheduled omnibus hearing. Based on
                                              her
 failure to appear, the district court determined that the defendant had waived her
                                           appeal
    and remanded to the city court for imposition and/or execution of that court's
                                         sentence.
     Rickett, 864 P.2d at 794. We determined that the district court's options in
                                       response to
a failure to appear were limited to those set forth in      46-16-122(2), MCA, and, as a
  result, we held that the district court exceeded its authority in remanding to the
                                        city court
  for imposition or execution of sentence. Rickett, 864 P.2d at 794-95. Here, the
                                          parties
    stipulated to the dismissal of Anderson's appeal to the district court and its
                                      remand to the
 City Court for final imposition of sentence. Nothing in Rickett precludes a remand
                                            under
   this factual scenario.We conclude that the records on which the Department relied
 in declaring Anderson a habitual traffic offender and revoking his driver's license
 incorrectly reflected an April 11, 1996, DUI conviction and, as a result, Anderson
                                              did
    not accumulate 30 conviction points within a 3-year period. On that basis, we
                                          further
conclude that the Department improperly declared Anderson a habitual traffic offender
                            and revoked his driver's license.
      The Department contends that Anderson is attempting to collaterally attack his
April 11, 1996, conviction in this proceeding challenging a habitual traffic offender
declaration and correctly cites to State ex rel. Majerus v. Carter (1984), 214 Mont.
                                             272,
     278-80, 693 P.2d 501, 504-505, as authority for the proposition that he cannot
 collaterally attack a conviction at this time. The Department's position, however,
                                               is
premised on its theory that a conviction occurred on April 11, 1996. As we concluded
                             above, that theory is incorrect.
    Moreover, while Majerus prohibits efforts to refute underlying charges or dispute
 the propriety of underlying convictions in a habitual traffic offender proceeding by
collaterally attacking those convictions (Majerus, 693 P.2d at 504-505), Anderson is
                                              not
 attempting to do so here. Rather, Anderson is disputing the accuracy of the records
       regarding the alleged April 11, 1996, conviction on which the Department's
                                       declaration
  and revocation were based; that is, Anderson questions only whether the records on
  which the Department relied correctly reflected a DUI conviction on April 11, 1996.
 Section 61-11-210(3), MCA, and Majerus, 693 P.2d at 504-505, expressly authorize him
                                         to do so.
             We hold that the District Court erred in denying Anderson's petition
                                       challenging
      the Department's declaration that he is a habitual traffic offender and its
                                    revocation of his
                                    driver's license.

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             Reversed and remanded for further proceedings consistent with this opinion.


                                                                                                           /S/     KARLA M. GRAY


                                                                           We concur:

                                                           /S/   WILLIAM E. HUNT, SR.
                                                                /S/ JIM REGNIER
                                                              /S/ JAMES C. NELSON
                                                            /S/ W. WILLIAM LEAPHART




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