                                          No. 02-499

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 5N


VICTOR ALLAN SMITH,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and for the County of Ravalli,
                     The Honorable Jeffrey H. Langton, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Victor Allen Smith, Shelby, Montana (Pro Se)

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     George Corn, Ravalli County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: November 26, 2002

                                                               Decided: January 17, 2003
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Victor Allan Smith appeals from the denial of his pro se

petition for postconviction relief by the Twenty-First Judicial

District Court, Ravalli County.                   We affirm.

¶3     We restate the issue as whether the District Court erred in

concluding        Smith's      petition       for     postconviction          relief      was

procedurally barred under §§ 46-21-102(1)(a) and 46-21-105(1)(a)

and (b), MCA.

¶4     Smith pled guilty to aggravated assault and judgment was

entered against him in December of 1999.                          He did not appeal.

Beginning in August of 2000, Smith filed numerous documents in

pursuit of postconviction and habeas corpus relief in the District

Court and this Court, as well as several appeals of District Court

matters     to    this    Court.        Smith      filed   his    first     petition      for

postconviction relief in the District Court in November of 2000,

arguing that his constitutional right against double jeopardy was

violated      when    a   10-year     weapon       enhancement      was    added     to   his

sentence for aggravated assault.                   The District Court denied that

petition on substantive grounds in April of 2001.



                                              2
¶5    In   November   of   2001,   Smith    filed   a   second      petition   for

postconviction relief which set forth only a double jeopardy claim.

 In his supporting arguments, however, he contended he had been

denied the right to counsel on direct appeal.              The District Court

denied Smith's second petition for postconviction relief as both

time-barred and procedurally barred under §§ 46-21-102(1)(a) and

46-21-105(1)(a) and (b), MCA.         Smith appeals.

¶6    Section     46-21-102(1),    MCA,    provides     that   a    petition   for

postconviction relief may be filed at any time within one year of

the   date   on   which    the   petitioner's   conviction         became   final.

Smith's aggravated assault conviction became final when he failed

to file an appeal by February of 2000.          See Rule 5(b), M.R.App.P.;

§ 46-21-102(1)(a), MCA.          Smith did file his first petition for

postconviction relief in November of 2000, within one year after

his conviction became final.         That petition raised only a double

jeopardy claim.
¶7    Smith's right to counsel contentions were first raised in the

arguments supporting his second petition for postconviction relief,

filed in November of 2001.          We conclude the District Court was
correct that the claims now asserted are time-barred.                In addition,

the District Court correctly concluded that claims first raised in

Smith's second petition for postconviction relief are procedurally

barred under § 46-21-105(1)(a) and (b), MCA, which allows only one

original petition and one amendment to that petition unless a

second petition raises grounds that could not reasonably have been

raised in the original or amended original petition.



                                       3
¶8    Smith analogizes to State v. Adams, 2002 MT 202, 311 Mont.

202, 54 P.3d 50, in support of his contention that his right to

counsel claims are not procedurally barred.          In Adams, ¶¶ 18-19, we

held that, even though the claims raised in the petition for

postconviction relief could have been raised on direct appeal, they

were not procedurally barred under § 46-21-105(2), MCA, for failure

to raise them on appeal because trial counsel may have rendered

ineffective assistance by failing to preserve a direct appeal.

¶9    Adams is readily distinguishable from the present case for

several reasons.        First, unlike the present case, Adams timely

filed his petition for postconviction relief.             See Adams, ¶¶ 4, 6.

 Here, as discussed above, the petition before us is time-barred

under § 46-21-102(1)(a), MCA.        Second, the procedural bar applied

by the district court in Adams was that contained in § 46-21-

105(2), MCA, namely, that the claims could have been raised on

direct appeal.     See Adams, ¶ 10.       Here, the procedural bar at issue

allows   only    one   original   petition    and   one   amendment   to   that

petition.       This is Smith's second petition for postconviction

relief and it is procedurally barred under § 46-21-105(1)(a) and

(b), MCA, because Smith could have raised his right to counsel

claims in his original petition.

¶10   We hold the District Court did not err in dismissing Smith's

petition for postconviction relief.

¶11   Affirmed.

                                                 /S/ KARLA M. GRAY


We concur:

/S/   PATRICIA COTTER
/S/   JIM REGNIER
/S/   JAMES C. NELSON
/S/   JIM RICE
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