97-722




                                                                           No. 97-722

                                            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                           1998 MT 102N



                                                                  STATE OF MONTANA,

                                                           Plaintiff and Respondent,

                                                                                       v.

                                                            AARON FRANCIS SCOTT,
                                                          Defendant and Appellant.




                APPEAL FROM:                   District Court of the Sixteenth Judicial District,
                                                        In and for the County of Carter,
                                                  The Honorable Joe L. Hegel, Judge presiding.


                                                                 COUNSEL OF RECORD:

                                                                               For Appellant:

                                                 Aaron Francis Scott, Pro Se, Deer Lodge, Montana

                                                                              For Respondent:

                                                       Hon. Joseph P. Mazurek, Attorney General;
                                                     Jennifer Anders, Assistant Attorney General;
                                                                    Helena, Montana

                                                      Richard O. Harkins, Carter County Attorney;
                                                                   Ekalaka, Montana



                                                                             Submitted on Briefs: April 16, 1998

                                                                             Decided: April 30, 1998
                                                                             Filed:


                                                       __________________________________________
                                                                           Clerk

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                   Justice Terry N. Trieweiler 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
but 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   Aaron Francis Scott petitioned the District Court for the Sixteenth
Judicial District in Carter County for postconviction relief. The District Court
denied the petition. Scott appeals. We affirm the judgment of the District
Court.

¶3   The sole issue on appeal is whether the District Court erred when it
denied Scott's petition for postconviction relief.
                   FACTUAL BACKGROUND

¶4   On July 6, 1992, Aaron Francis Scott pled guilty to the charge of
deliberate homicide in the District Court for the Sixteenth Judicial District in
Carter County. Pursuant to the plea agreement, it was recommended that Scott
receive a forty-year prison sentence, with an additional ten-year consecutive
sentence for use of a weapon. On October 6, 1992, the District Court imposed
the recommended sentence pursuant to the plea agreement, with the additional
restriction that Scott is ineligible for parole for the first ten years of his
sentence.

¶5   On October 10, 1997, Scott filed a petition for postconviction relief.
He sought to modify the sentence to remove the restriction on his parole
eligibility. He based his petition on the grounds that he had not been advised
of the possible parole restriction at the time that he entered his guilty plea, as
he alleges was required by § 46-12-210(1)(a)(iii), MCA.

¶6   The District Court denied the petition on the grounds that it was
untimely, pursuant to § 46-21-102, MCA (1995).
                       DISCUSSION

¶7   Did the District Court err when it denied Scott's petition for
postconviction relief?

¶8   We review a district court's conclusions of law in a postconviction
relief matter to determine whether they are correct. See State v. Sullivan
(Mont. 1997), 948 P.2d 215, 218, 54 St. Rep. 1128, 1129.

¶9   Section 46-21-102, MCA (1995), requires a defendant to file a petition
for postconviction relief within five years from the date of his conviction.
Scott's petition in this case was filed at least five years and four days after his
1992 conviction.


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¶10 This Court has held that the postconviction statute of limitation may be
justifiably waived "by a clear miscarriage of justice, one so obvious that the
judgment is rendered a complete nullity." In re Petition of Gray (1995), 274
Mont. 1, 2, 908 P.2d 1352, 1352.

¶11 We have yet to clarify in this context what kind of action would
constitute a miscarriage of justice that would render a judgment a complete
nullity. Based upon the authority relied upon in Gray when this Court
developed the above exception, however, we hold that no such miscarriage of
justice has occurred here.

¶12 Gray cites State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, and
Smittie v. Lockhart (8th Cir. 1988), 843 F.2d 295, as examples of when a
statute of limitation should be waived. In Perry, the State attempted to use the
statute of limitation to bar a defendant's petition, despite the fact that the
grounds for his petition were not apparent until many years after the statute
had run. There, we recharacterized the petition as one for habeas corpus, but
still held that the defendant was not entitled to relief. Scott has urged us to do
the same and to treat his petition as one for habeas corpus. However, Scott has
clearly stated that he does not feel that he is being unlawfully detained, but
rather that he seeks a modification of his sentence. Accordingly, we decline
to treat this as a petition for habeas corpus in order to avoid the statute of
limitation.

¶13 The discussion in Smittie is much more illuminating as to what this
Court had in mind in Gray when it held that in certain circumstances a statute
of limitation could be waived. The Eighth Circuit stated that the grounds for
waiver are "extremely limited," and then listed the following examples, among
others, as insufficient: involuntary plea; conviction based on misidentification;
guilty plea to a crime not charged; and ineffective assistance of counsel. See
Smittie, 843 F.2d at 297-98. Scott's basis for postconviction relief is certainly
no more a "miscarriage of justice" than the examples from Smittie that we
relied on in Gray. Accordingly, we hold that no miscarriage of justice has
occurred which would be sufficient to render the judgment a complete nullity,
and that the statute of limitation should be enforced.

¶14 We hold that the District Court did not err when it enforced the statute
of limitation and ordered that Scott's motion was untimely. We affirm the
judgment of the District Court.

                                                                       /S/       TERRY N. TRIEWEILER



We Concur:

/S/       J. A. TURNAGE
/S/       WILLIAM E. HUNT, SR.
/S/       W. WILLIAM LEAPHART
/S/       KARLA M. GRAY


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