                                                                                             March 22 2011


                                           DA 10-0516

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2011 MT 53N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ANTHONY DANE ROBERTY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC 08-42A
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Anthony Dane Roberty (Self-Represented), Shelby, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, Mark W. Mattioli, Appellate
                        Services Bureau Chief, Helena, Montana

                        Marty Lambert, Gallatin County Attorney, Eric Fitzmiller, Deputy
                        Gallatin County Attorney, Bozeman, Montana



                                                    Submitted on Briefs: February 23, 2011

                                                                Decided: March 22, 2011


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2        Anthony Dane Roberty (Roberty) appeals the order of the Eighteenth Judicial

District Court, Gallatin County, denying his August 2010 motion to amend or correct his

June 2008 sentence for felony Driving Under the Influence (DUI). We affirm.

¶3        Roberty was sentenced on January 26, 2005, in Gallatin County District Court, in

three separate DUI convictions. He received three concurrent, ten-year sentences with

five years suspended on each offense. Roberty was paroled in 2006. In February 2008,

while still on parole, Roberty was charged with another felony DUI and driving with a

suspended or revoked license. Roberty pled guilty to both charges. In June 2008 the

District Court sentenced Roberty to the Department of Corrections for thirteen months,

followed immediately by a five-year suspended sentence to Montana State Prison. This

sentence was to run consecutive to the three 2005 sentences. On November 24, 2008, the

Sentencing Review Division affirmed Roberty’s June 2008 sentence. Roberty did not

appeal the convictions or sentence, nor did he file a timely petition for postconviction

relief.

¶4        In November 2009, Roberty filed a petition for writ of habeas corpus with this

Court, which we dismissed. Roberty v. State, OP 09-0613. He then filed a second habeas


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petition in Powell County, which was denied, appealed, and dismissed with prejudice by

this Court on December 8, 2010. Roberty v. State, DA 10-0220. In August 2010, which

was subsequent to the filing of Roberty’s second habeas petition, but before we issued

our decision, Roberty filed the instant motion to amend or correct his June 2008 sentence.

The District Court denied the motion and Roberty appealed. He raises four issues on

appeal; however, we conclude that all issues are either procedurally barred or time

barred.

¶5     Once a conviction is final, a defendant has sixty days to file a direct appeal to this

Court, M. R. App. P. 4(5)(b)(i), and one year to file a petition for postconviction relief.

Section 46-21-102(1), MCA. Additionally, claims which were, or could have been,

raised on direct appeal are procedurally barred. Sections 46-21-105(2) and 46-22-101(2),

MCA. Finally, as a general rule, this Court does not consider issues presented for the

first time on appeal. State v. Belanus, 2010 MT 204, ¶ 17, 357 Mont. 463, 240 P.3d 1021

(internal citations omitted).

¶6     Of the issues Roberty raises on appeal, the only one raised in the District Court,

and therefore not procedurally barred, is whether the five-year suspended portion of his

sentence was to Montana State Prison or the Department of Corrections. This issue is,

however, time barred because Roberty failed to appeal the sentence and did not seek

postconviction relief within the time limits specified by law, namely within one year of

the final conviction. Roberty’s arguments in this appeal are, therefore, both procedurally

barred and time barred.




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¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and are controlled by settled Montana law, which the District

Court correctly interpreted.

¶8     Affirmed.


                                          /S/ PATRICIA COTTER



We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS




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