                                           No. 04-591

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 45N


BRENT M. BROWN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.


APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DV 2003-208A
                     Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Brent M. Brown, Pro Se, Deer Lodge, Montana

              For Respondent:

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

                     Ed Corrigan, Flathead County Attorney, Kalispell, Montana



                                                   Submitted on Briefs: February 1, 2005

                                                              Decided: February 22, 2005


Filed:

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


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

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. Its case title, Supreme Court cause number and disposition shall be included

in this Court's quarterly list of nonciteable cases published in the Pacific Reporter and

Montana Reports.

¶2     In 1996, Brent Matthew Brown pled guilty to deliberate homicide in the Eleventh

Judicial District Court, Flathead County. He was ordered to pay restitution and his sentence

was enhanced based on his use of a dangerous weapon in the offense. In 2003, Brown filed

a petition for postconviction relief in the District Court. The court dismissed the petition as

procedurally barred. Brown appeals.

¶3     On appeal, Brown argues (1) the sentencing court lacked statutory authority to impose

restitution; and (2) the enhancement to his prison sentence for use of a weapon violates both

his protection against double jeopardy under the United States Constitution and (3) his right

to due process of law.

¶4     We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. All three issues raised by Brown are clearly barred from review under settled

Montana law. Brown's postconviction petition is time-barred by § 46-21-102, MCA (1995),

which allowed him five years after his conviction became final in which to file a petition for


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postconviction relief. The time-bar is jurisdictional. Peña v. State, 2004 MT 293, ¶ 35, 323

Mont. 347, ¶ 35, 100 P.3d 154, ¶ 35. In addition, Brown's claims could have been raised on

direct appeal; his restitution and due process claims are thus procedurally barred under § 46-

21-105(2), MCA. See Peña, ¶¶ 36-37.

¶5     Affirmed.

                                                         /S/ KARLA M. GRAY


We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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