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                                                                No. 97-015

                              IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                1999 MT 2


                                                    IN THE MATTER OF W.G.,

                                                                  a Youth.




                           APPEAL FROM: District Court of the Seventeenth Judicial District,

                                                   In and for the County of Blaine,

                                       The Honorable John C. McKeon, Judge presiding.


                                                      COUNSEL OF RECORD:


                                                              For Appellant:

                                    James W. Spangelo, Attorney at Law, Havre, Montana


                                                             For Respondent:

                                           Hon. Joseph P. Mazurek, Attorney General,

                               Cregg W. Coughlin, Ass't Attorney General, Helena, Montana


                                Mark Harshman, Blaine County Attorney, Chinook, Montana



                                             Submitted on Briefs: November 5, 1998

                                                       Decided: January 7, 1999

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                                                                    Filed:

                                      __________________________________________

                                                                     Clerk

Justice W. William Leaphart delivered the Opinion of the Court

¶1. Defendant W.G. appeals from the judgment of the Seventeenth Judicial District
Court, Blaine County, sentencing him pursuant to the Extended Jurisdiction
Prosecution Act and imposing restitution.

¶2. We reverse and remand for resentencing.

¶3. We address the following issue:

¶4. Whether the District Court erred in sentencing W.G. under the Extended
Jurisdiction Prosecution Act.

                                                        Standard of Review

¶5. We review a district court's conclusions of law to determine whether the court's
interpretation of the law is correct. State v. Schnittgen (1996), 277 Mont. 291, 295-96,
922 P.2d 500, 503. We review the findings on which a district court's sentence is
based to determine whether they are clearly erroneous. State v. Alden (1997), 282
Mont. 45, 49, 934 P.2d 210, 213.

                                           Factual and Procedural Background

¶6. In April, 1996, a petition was filed in Youth Court, Blaine County, charging W.G.
with two counts of Burglary, two counts of Criminal Mischief, and one count of
Theft, all felony offenses. W.G. executed an Acknowledgment of Waiver of Rights by
Plea of Guilty in July, 1996. In August, 1996 W.G. appeared in District Court and
pled guilty to the charged offenses. A dispositional hearing was held in September,
1996. The District Court adjudicated W.G. a delinquent youth under § 45-5-103,
MCA (1995), and found, on its own motion, that §§ 41-5-1102, MCA (1995) et seq.,
the Extended Jurisdiction Prosecution Act (EJPA), applied in the present case. The

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District Court sentenced W.G. to a juvenile disposition and to a stayed adult
disposition.

¶7. Under the juvenile disposition, the District Court sentenced W.G. to the custody
of the Department of Corrections until his 21st birthday, leaving placement to the
discretion of the Department of Corrections. The District Court ordered that W.G.
be under supervised probation, that he attend a chemical dependency program, and
that he pay one-half of a total $9,651.10 in restitution. The District Court ordered
that W.G.'s mother pay the other half of the restitution, pursuant to § 41-5-523(1)(g),
MCA (1995). The District Court also sentenced W.G. as an adult to five years prison
for Count one, Burglary, and to five years prison for Count two, Burglary,
concurrent with the sentence for Count one. The District Court stayed the execution
of these sentences on condition that W.G. not violate his juvenile disposition or
commit any new offenses.

                                                               Discussion

¶8. Whether the District Court erred in sentencing W.G. under the Extended
Jurisdiction Prosecution Act.

¶9. W.G. argues that because this Court held the EJPA unconstitutional in Matter of
S.L.M. (1997), 287 Mont. 23, 951 P.2d 1365, the case should be remanded with
instructions to affirm the juvenile disposition and to strike the adult disposition. The
State agrees that the EJPA was held unconstitutional in Matter of S.L.M.; however,
the State argues that because W.G.'s sentence was imposed under the EJPA, his
sentence must be reversed in its entirety and his case remanded for resentencing.

¶10. The Court held in Matter of S.L.M. that the EJPA violates the equal protection
and rights of minors provisions of Montana's Constitution. Matter of S.L.M., 287
Mont. at 39, 951 P.2d at 1375. The Court in Matter of S.L.M. determined that
juveniles receive both juvenile and adult dispositions under the EJPA. Thus, if a
juvenile were to violate the terms of his juvenile disposition, he would be subject to
an adult disposition and to a longer term of imprisonment or detention than would
an adult convicted of the same offense. The Matter of S.L.M. Court concluded that
the EJPA, including its 1997 amendments, was unconstitu-tional because the State
did not demonstrate that a compelling interest would be furthered by such unequal
treatment of juveniles and adults, and because the EJPA did not provide juveniles


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with increased protection. Matter of S.L.M., 287 Mont. at 39, 951 P.2d at 1375.

¶11. We conclude that both W.G.'s juvenile and adult dispositions must be struck.
The record establishes that in sentencing W.G. under the EJPA, the District Court
imposed W.G.'s juvenile disposition in conjunction with and in contemplation of the
stayed adult sentence. We hold that the District Court erred in sentencing W.G.
under the EJPA, and we remand for resentencing. If the District Court considers
restitution on resentencing, it should do so pursuant to § 41-5-1521, MCA. Because
this holding is dispositive, we do not reach W.G.'s arguments that the District Court
failed to comply with the procedural requirements of the EJPA.

¶12. Reversed and remanded for resentencing.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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