                                          No. 02-705

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 250


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

MELVIN GARDIPEE,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade, Cause No. ADC-01-513,
                     The Honorable Thomas McKittrick, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Eric Olson, Cascade County Chief Public Defender; Jeffry L. Olson, Deputy
                     Public Defender, Great Falls, Montana

                     Carl B. Jensen, Jr., Public Defenders Office, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Robert Stutz,
                     Assistant Attorney General, Helena, Montana

                     Brant Light, Cascade County Attorney, John Parker, Gregory Bonilla,
                     Deputy County Attorneys, Great Falls, Montana


                                                  Submitted on Briefs: February 3, 2004

                                                               Decided: September 8, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1    Melvin Gardipee (Gardipee) was convicted of family member assault, a felony, in

violation of § 45-5-206(1)(a), MCA, by a jury in Montana’s Eighth Judicial District Court,

Cascade County. Gardipee appeals the District Court’s order allowing the State to amend

its Information. We affirm.

¶2    The sole issue raised on appeal is whether the District Court abused its discretion

when it allowed the State to file an Amended Information on the morning of the trial.

                                    BACKGROUND

¶3    On December 21, 2001, the State filed an Information alleging that Melvin Gardipee

committed five offenses, including the following:

      COUNT IV: PARTNER MEMBER ASSAULT, A MISDEMEANOR, in
      violation of MCA § 45-5-206(1)(a)(2001). The above-named defendant
      purposely or knowingly caused bodily injury to a family member, namely his
      daughter, Valarie Gardipee.

With the permission of the District Court, the State filed an Amended Information on May

20, 2002, the morning of the trial. The Amended Information included the following:

      COUNT IV (AMENDED): FAMILY MEMBER ASSAULT, A FELONY, in
      violation of MCA § 45-5-206(1)(a)(2001). The above-named defendant
      purposely or knowingly caused bodily injury to a family member, namely his
      daughter, Valarie Gardipee. The Defendant was convicted on one count of
      domestic abuse on December 4, 1988, and was convicted on two additional
      counts of domestic abuse on January 26, 1993.

¶4    A jury found Gardipee guilty of several of the offenses charged against him, including

Count IV. Gardipee appeals the District Court’s order permitting the State to file its

Amended Information.

                               STANDARD OF REVIEW

¶5    Whether to allow the amendment of an information is left to the discretion of the trial


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court. State v. Abe, 1998 MT 206, ¶ 28, 290 Mont. 393, ¶ 28, 965 P.2d 882, ¶ 28. We

review discretionary trial court rulings to determine whether there has been an abuse of

discretion. Abe, ¶ 28.

                                       DISCUSSION

¶6     Did the District Court abuse its discretion when it allowed the State to file an

Amended Information on the morning of the trial?

¶7     Gardipee alleges the District Court erred by permitting the State to file the Amended

Information on the morning of the trial. Amendments to the substance of an Information

must be filed not less than five days before trial, but amendments to the form of an

Information may be filed any time prior to verdict if the substantial rights of the defendant

are not prejudiced. Section 46-11-205, MCA, City of Red Lodge v. Kennedy, 2002 MT 89,

¶ 11, 309 Mont. 330, ¶ 11, 46 P.3d 602, ¶ 11. Gardipee concedes that the Amended

Information was an amendment of form rather than substance. Accordingly, amendment of

the Information on the day of trial was proper “if the substantial rights of the defendant are

not prejudiced.” Section 46-11-205(3), MCA.

¶8     Gardipee argues that his substantial rights were prejudiced by changing Count IV

from a misdemeanor to a felony, which carries a much more severe penalty. Under Montana

law, a first conviction of Partner or Family Member Assault constitutes a misdemeanor

punishable by a fine from $100 to $1000 and imprisonment in the county jail for 24 hours

to 1 year. Section 45-5-206(3)(a)(i), MCA. A second offense, also a misdemeanor, is

punishable by a fine from $300 to $1000 and imprisonment in the county jail from 72 hours

to 1 year. Sections 45-5-206(3)(a)(ii), MCA. A third or subsequent conviction, however,

constitutes a felony and carries a penalty of $500 to $50,000 and imprisonment of 30 days


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to 5 years. Section 45-5-206(3)(a)(iv), MCA. Gardipee asserts that if he and his counsel had

advance notice of the Amended Information and the more severe penalty, their “plea

bargaining and trial strategy may have taken a different course.”

¶9     We hold that Gardipee’s substantial rights were not violated when the District Court

allowed the State to amend the Information on the day of the trial. The only difference

between the first Information and the Amended Information was the recognition that

pursuant to Montana statute, a persistent offender of the partner or family member assault

statute receive an enhanced sentence for a third or subsequent conviction. The elements of

the crime were not changed. Under the Amended Information, Gardipee was still charged

under the same statute. Gardipee’s substantial rights were not prejudiced by amendment of

the Information to reflect the statutorily-mandated sentencing range for a repeat offender.

¶10    Affirmed.


                                                 /S/ JIM REGNIER



We Concur:

/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE




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