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                                                               No. 99-493

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 328

                                                              303 Mont. 56

                                                              15 P. 3d 400



                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                  MICHAEL BLYNN FIELDS,

                                                     Defendant and Appellant.

                          APPEAL FROM: District Court of the Eleventh Judicial District,

                                               In and for the County of Flathead,

                                  The Honorable Katherine R. Curtis, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                        Todd Glazier, Attorney at Law, Boise, Idaho

                                                            For Respondent:

                              Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt,

                                       Assistant Attorney General, Helena, Montana



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                                 Thomas J. Esch, Flathead County Attorney; Peter Steele,

                                         Deputy County Attorney, Kalispell, Montana

                                            Submitted on Briefs: December 7, 2000
                                                Decided: Decmeber 14, 2000

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Michael Blynn Fields (Fields) was convicted by a jury of the offense of theft, a felony.
The District Court, Eleventh Judicial District, State of Montana, sentenced Fields to a term
of ten years for theft and a consecutive term of twenty years (ten of those suspended) as a
persistent felony offender. Fields appeals from the designation as a persistent felony
offender. We affirm.

¶2 The question presented is whether the District Court erred when it determined that the
State had shown "good cause" under § 46-13-108, MCA, for seeking to increase Fields'
penalty as a persistent felony offender, despite having not given notice of that intent at the
omnibus hearing.

¶3 The relevant facts are as follows: On November 13, 1998, Fields was charged with
felony theft and driving under the influence of alcohol, a misdemeanor. He pled not guilty.
In October of 1998, the State informed Fields that it would pursue increased punishment
of him as a persistent felony offender. However, in November 1998, the parties negotiated
a plea agreement whereby the State agreed not to seek persistent felony offender status
and also agreed to recommend a seven-year suspended sentence and to dismiss the driving
under the influence of alcohol charge. Fields signed the plea agreement in November
1998. The State signed in December 1998. The omnibus status report was filed December
21, 1998.

¶4 Subsequently, in January of 1999, Fields informed the State that he would not abide by

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the plea agreement and that he wanted a new attorney and a jury trial. Given this
development, the State took the position that the agreed-upon recommendation was no
longer binding and that the State would reinstitute its intent to seek persistent felony
offender status. The court agreed that there was good cause for allowing the State to seek
increased punishment under § 46-18-502, MCA. Thus, on March 10, 1999, the State filed
a notice of intent to seek designation of Fields as a persistent felony offender. Fields was
then tried by a jury and convicted. The District Court sentenced Fields to ten years for
felony theft plus a consecutive term of twenty years, ten suspended, as a persistent felony
offender.

¶5 Fields argues that the persistent felony offender designation must be set aside because
the State did not comply with the dictates of § 46-13-108, MCA, which provides as
follows:

        Notice by prosecutor seeking persistent felony offender status. (1) Except for good
        cause shown, if the prosecution seeks treatment of the accused as a persistent felony
        offender, notice of that fact must be given at or before the omnibus hearing pursuant
        to 46-13-110.

¶6 The determination of whether "good cause" exists is a question of law. We review a
district court's conclusions of law to determine whether those conclusions are correct. Hale
v. Royal Logging, 1999 MT 302, 297 Mont. 165, 990 P.2d 1245.

¶7 Fields points out, correctly, that as of the December 21, 1998 omnibus status report, the
State had not given notice that it was going to seek persistent felony offender status. The
status report makes no mention of such an intention.

¶8 The State argued that the reason it did not indicate an intent to seek persistent felony
offender status in the omnibus status report was that, as of that date, a plea agreement was
in place and the agreement did not contemplate such a designation. The State contends,
however, that, in January of 1999, when Fields rescinded the plea agreement, the terms of
the agreement were no longer binding and, at that point in time, the State had "good
cause" for filing a belated notice of intent to seek persistent felony offender status. The
District Court agreed.

¶9 In challenging the existence of good cause, Fields argues that "[n]owhere in the Plea
Agreement did the State promise not to seek a persistent felony offender status. Therefore,


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the District Court's order to allow the State to seek Persistent Felony Offender status could
not have been based on 'good cause.' " Fields seems to argue that, had the promise not to
seek persistent felony offender status been contained in the written plea agreement, he
would have honored the agreement rather than opt for a jury trial.

¶10 We find Fields' argument lacking in logic. The plea agreement provides that, in
consideration of Fields' entry of a plea of guilty to the charge of felony theft, "the County
Attorney agrees to recommend a seven (7) year suspended sentence" and to dismiss the
charge of driving under the influence of alcohol. Further, the agreement provides that "[n]
o additional promises, agreements or conditions have been entered into other than those
set forth in this plea agreement." The terms of the agreement, as spelled out above,
obligated the State to recommend a specific sentence and no other. That sentence was a
suspended sentence of seven years. By omitting any reference to persistent felony offender
status, the agreement precluded the State from seeking that designation. We find no merit
to Fields' contention that, due to the alleged incomplete nature of the agreement, he was
put at risk of being designated a persistent felony offender and was thus justified in
repudiating the agreement.

¶11 The District Court correctly concluded that, under § 46-13-108, MCA, there was
"good cause" for allowing the State to file its intent to seek persistent felony offender
status when Fields, after the omnibus hearing, decided not to follow through with the plea
agreement.

¶14 Affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                         /S/ JIM REGNIER

                                                    /S/ JAMES C. NELSON

                                                /S/ TERRY N. TRIEWEILER

                                                      /S/ KARLA M. GRAY



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