                                                                                              June 4 2013


                                           DA 12-0561

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 150N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRIAN JOSEPH SPINKS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC-00-235
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brian Joseph Spinks (Self-Represented), Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Marty Lambert, Gallatin County Attorney, Todd Whipple, Deputy
                        County Attorney, Bozeman, Montana



                                                    Submitted on Briefs: April 17, 2013

                                                                Decided: June 4, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter 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     Brian Joseph Spinks (Spinks) appeals from an order of Montana’s Eighteenth

Judicial District Court, Gallatin County, denying his petition for postconviction relief.

On December 14, 2000, the State charged Spinks with two felony counts of sexual

intercourse without consent in violation of § 45-5-503, MCA. The conduct forming the

basis of the charges occurred on July 3, 2000. On May 1, 2001, Spinks pled guilty to

amended misdemeanor charges of partner or family member assault and negligent

endangerment. The District Court sentenced Spinks to one year in the custody of the

Gallatin County Detention Center for each offense to run consecutively, and suspended

all but the 116 days Spinks had already served for each offense. The District Court

entered the sentence and judgment on May 30, 2001.

¶3     Spinks had previously pled guilty to partner or family member assault in Gallatin

County Justice Court on July 5, 2000. Spinks alleges that his District Court sentence

represents the second time that he was charged and sentenced for his conduct on July 3,

2000. On February 8, 2011, Spinks filed a letter with the District Court asserting that his

conviction in District Court violated his constitutional double jeopardy rights. On March

8, 2011, Spinks filed a “Motion to Expunge or Retrial Due to Double Jeopardy

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Conviction” in which he set forth his double jeopardy claim. The District Court noted

that Spinks never raised any double jeopardy concerns during any earlier proceedings and

did not appeal his conviction. On May 2, 2011, the District Court denied Spinks’ motion

as untimely pursuant to M. R. App. P. 5(b)(i) and § 46-21-102(1), MCA.

¶4     On May 8, 2012, and July 16, 2012, Spinks filed additional motions for

postconviction relief due to double jeopardy considerations. Once again, the District

Court denied Spinks’ motions as untimely. Spinks appeals the District Court’s decision.

We address the following issue on appeal:

¶5     Did the District Court err in denying Spinks’ petition for postconviction relief?

¶6     The District Court entered its sentence and judgment against Spinks on May 30,

2001. The judgment became final 60 days later when Spinks’ time to file a direct appeal

lapsed.   M. R. App. P. 5(b)(i).      The statute of limitations for filing a petition for

postconviction relief expired one year after the conviction became final pursuant to

§ 46-21-102(1), MCA. See e.g. Davis v. State, 2004 MT 112, ¶ 15, 321 Mont. 118, 88

P.3d 1285. We agree with the District Court’s conclusion that Spinks’ petition for

postconviction relief and double jeopardy arguments raised for the first time nearly nine

years after the expiration of the applicable statute of limitations was time-barred.

¶7     Spinks asserts that denial of his petition for postconviction relief would constitute

a fundamental miscarriage of justice. However, the fundamental miscarriage of justice

exception applies only to claims in which the petitioner alleges that newly discovered

evidence establishes that he did not commit the offense. See State v. Evert, 2007 MT 30,

¶ 16, 336 Mont. 36, 152 P.3d 713; § 46-21-102(2), MCA. Spinks contends that the

                                              3
victim recanted, but relies on evidence that was known to him at the time he pled guilty

to the offenses. Therefore, Spinks cannot satisfy the fundamental miscarriage of justice

exception. Spinks has failed to establish that any other exceptions or tolling apply to his

petition.

¶8        Notwithstanding the multiple procedural bars present in this case, Spinks has

failed to comply with the requirements of § 46-21-104, MCA. Spinks did not provide the

District Court with any information or records pertaining to his earlier conviction in

Justice Court. Even if it was determined to reach the merits, the District Court did not

have sufficient evidence to evaluate the validity of Spinks’ double jeopardy claims.

Accordingly, the District Court did not err in denying Spinks’ petition for postconviction

relief.

¶9        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

District Court’s factual findings are supported by substantial evidence and the legal issues

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

interpreted.


                                                        /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE


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