                                           No. 01-636

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 47N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

RIC MIGNOGNA,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Fifth Judicial District,
                     In and for the County of Beaverhead, Cause Nos. DC-96-2627,
                     DC-96-2631 & DC-99-2767
                     The Honorable Loren Tucker, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Ric Mignogna, pro se, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant
                     Attorney General, Helena, Montana; Michael Riley, Beaverhead County
                     Attorney, Dillon, Montana



                                                   Submitted on Briefs: June 27, 2002

                                                              Decided: March 2, 2004
Filed:



                     __________________________________________
                                       Clerk
Justice James C. Nelson 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     Ric Mignogna, acting pro se, appeals from an order of the District Court for the Fifth

Judicial District, Beaverhead County, denying certain motions which Mignogna filed to

modify his sentences for three separate convictions for felony DUI. We hold that the District

Court did not have jurisdiction to consider Mignogna’s request for modification of his

sentences, nor does this Court have jurisdiction to consider the merits of his appeal, hence

the appeal is dismissed.

¶3     The issue on appeal, as framed by the State, is: Did the District Court properly deny

Mignogna’s requests for credit against his prison sentences for time elapsed during probation

and for credit against his fines for time spent in jail?

                           Factual and Procedural Background

¶4     Mignogna appeals three post-judgment orders entered in three felony DUI cases

arising in Beaverhead County. In the first of the three cases (Cause No. DC 96-2627),

Mignogna was charged by Information on July 25, 1996, with one count of felony DUI,

together with several misdemeanor offenses, that occurred on July 20, 1996. While these


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charges were pending, a second Information was filed against Mignogna on August 19, 1996

(Cause No. DC 96-2631), charging him with another felony DUI that occurred on August

2, 1996. Mignogna entered into a plea agreement for both cases. He pleaded guilty to the

two felony DUI charges and, on October 10, 1996, he was committed to the Montana

Department of Corrections for two concurrent terms of ten years with five years suspended.

Mignogna was given credit against his sentence for sixty-nine days he spent in jail. He was

also ordered to pay fines in the amount of $500 for each conviction.

¶5     Mignogna did not appeal either of his convictions or his sentences. However, he did

file petitions for postconviction relief in both cases raising issues unrelated to those presented

in the current appeal. The District Court denied the requested relief and Mignogna filed

notices of appeal, but the appeals were subsequently dismissed at Mignogna’s request.

¶6     Mignogna served the unsuspended portion of his sentences in prison and on parole.

On March 15, 1999, he went from parole status to probation status and began serving the

suspended portions of his sentences. On December 20, 1999, Mignogna was charged by

Information with a third count of felony DUI (Cause No. DC 99-2767), along with several

misdemeanor offenses, that occurred on December 9, 1999. On March 15, 2000, the

Beaverhead County Attorney filed motions for revocation of Mignogna’s suspended

sentences in the two earlier cases. The accompanying reports of Mignogna’s probation

officer alleged numerous violations of the terms of Mignogna’s probation. Pursuant to

another plea agreement, Mignogna entered a guilty plea to the felony DUI and admitted the

violations of his probation.

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¶7     The District Court entered its Findings of Fact, Conclusions of Law, Judgment and

Order in all three cases on March 17, 2000. In the two earlier cases, the court revoked the

suspended sentences and committed Mignogna to the Department of Corrections for

concurrent terms of five years. Mignogna was given credit for 19 days in jail. In the third

case, the court sentenced Mignogna to a concurrent thirteen-month term with the Department

of Corrections, followed by probation for four years and a fine of $1,000.

¶8     Once again Mignogna did not appeal from the judgments. He did, however, petition

the District Court for postconviction relief in the third case on September 15, 2000, raising

claims unrelated to the present issues. After the District Court denied relief and dismissed

the petition, Mignogna appealed, but the appeal was subsequently dismissed at Mignogna’s

request.

¶9     On May 31, 2001, Mignogna filed a document in the District Court entitled “Writ of

Coram Vobis” pertaining to all three cases. The document cited §§ 46-18-117 and 403(2),

MCA, as authority and asked the District Court to allow a credit against his fines for time

served in the Beaverhead County jail. Mignogna filed a second document in the District

Court on June 25, 2001, entitled “Motion for Credit for Time Served” in which he requested

a credit against his sentence for 378 days (between March 6, 1999, and March 16, 2000) for

the time he was on probation in the two earlier cases. On July 19, 2001, the District Court

entered orders in the three cases denying both requests.




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¶10    On March 7, 2002, Mignogna filed with this Court documents entitled “Motion for

Credit for Time Served” and “Motion for Financial Relief.” We deemed those documents

to be his opening brief on appeal and directed the State to file a response.

                                         Discussion

¶11 Did the District Court properly deny Mignogna’s requests for credit against his
prison sentences for time elapsed during probation and for credit against his fines for time
spent in jail?

¶12    Mignogna argues on appeal that the District Court erred in not crediting him for 378

days he spent on probation in his two earlier cases (Cause Nos. DC 96-2627 and DC 96-

2631) and for not allowing him a credit against his fines for the time he served in the

Beaverhead County jail.

¶13    The State argues on the other hand that Mignogna’s appeal is time barred because no

contemporaneous objection regarding the credits was made at sentencing nor was an appeal

from the sentencing orders taken. The sentences at issue were imposed on March 17, 2000,

and the judgments became final 60 days later, on May 17, 2000. Even if Mignogna’s “Writ

of Coram Vobis” and “Motion for Credit for Time Served” were deemed to be petitions for

postconviction relief, both were filed beyond the limitations period for postconviction

proceedings. See § 46-21-102, MCA (a petition for postconviction relief may be filed at any

time within one year of the date that the conviction becomes final). Mignogna would have

had to file a petition by May 16, 2001, but because he failed to do so, the District Court had

no jurisdiction to modify Mignogna’s sentences. State v. Richards (1997), 285 Mont. 322,

325, 948 P.2d 240, 241.

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¶14      In addition, Mignogna argued that pursuant to § 46-18-117, MCA (1999), the District

Court “may correct an erroneous sentence or disposition at any time and may correct a

sentence imposed in an illegal manner within 120 days after the sentence is imposed.” As

the State points out in its brief on appeal, this statute was repealed by the 2001 Legislature

effective March 20, 2001, more than two months before Mignogna filed his pleadings.

¶15      Furthermore, at the same time the Legislature repealed § 46-18-117, MCA, it

amended § 46-18-116, MCA, by adding subsection (3), which provides, in pertinent part,

that a district court “may correct a factually erroneous sentence or judgment at any time” and

that “[i]llegal sentences must be addressed in the manner provided by law for appeal and

postconviction relief.” This new legislation applied to all cases pending on direct review or

not yet final at the time of its effective date. Mignogna did have an appeal in an unrelated

postconviction proceeding pending before this Court on the effective date of the amendment

with regard to his third case, but there were no proceedings pending in the earlier cases.

¶16      Even if § 46-18-117, MCA, were applicable to Mignogna’s case, Mignogna did not

file a claim challenging the legality of his sentences within 120 days of their imposition and

the District Court’s authority under § 46-18-117, MCA, would be limited to correcting an

erroneous sentence or disposition. However, Mignogna has not alleged that his sentences

were factually erroneous. Hence, the District Court did not have the statutory authority to

change Mignogna’s sentences in the manner he requested even if the court were inclined to

do so.

¶17      Accordingly, we hold that this case is dismissed for lack of jurisdiction.

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                              /S/ JAMES C. NELSON




We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

/S/ JIM RICE




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