                                                       No.    82-325

                                I N TEE SUPREME COURT O THE STATE O MONTANA
                                                       F           F

                                                              1982




ROBERT V.                  CRANE I

                                Petitioner,

       -vs-

THE STATE O ,FIONTANA,
           F

                                Respondent.




O R I G I N A L PROCEEDING c


Counsel o f Record:

            For P e t i t i o n e r :

                             J e f f r e y Shrom, M i s s o u l a , Montana


            For Respondent :

                             Iion. Jlike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , btontana
                             C h a r l e s G r a v e l y , County A t t o r n e y , Helena, Montana


                                                                 --




                                                       Submitted:         September 2 , 1982

                                                          Decided:        September 1 0 , 1982

       c-
       ,
            )   --    ?
                     4 .     1382
Filed:
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.

     On August 31, 1982, Robert V. Crane petitioned this
Court for a writ of habeas corpus.     We grant the petition.
     Petitioner was charged in Justice Court July 7, 1978,
with violating section 84-2401, R.C.M.    1947 (now section 15-
57-102, MCA), operating a retail store without obtaining a
valid retail license.   The complaint stated the violation
was "during the calendar year 1978."
     A jury trial was held December 13, 1978.     Petitioner
refused to cooperate and left the courtroom.     The jury
subsequently found Crane guilty of violating section 15-57-
102, MCA.

     Section 84-2411, R.C.M.   1947 (now section 15-57-110,

MCA), provides for a fine of not less than $25.00 nor more
than $200.00 for a violation of section 15-57-102, MCA.      The

penalty section further provides that "each day that such
violation shall continue shall constitute a separate and
distinct offense."   Petitioner was sentenced January 3,
1979, to pay a fine of $1,200.00.    Assuming the maximum
penalty was applied, petitioner was fined for six offenses

of violating the licensing statute.
    Petitioner refused to pay the fine.     The Justice of the
Peace found Crane to be in contempt of court and ordered him
jailed.   Each day in jail was to equal $10.00 paid toward
the fine, pursuant to section 46-17-302(4), MCA.    Petitioner
then served forty-four days in the Lewis and Clark County
Jail, from February 18, 1981 to April 2, 1981.
    On February 24, 1981, petitioner filed an application
for writ of certiorari in the District Court of the First
Judicial District.   Such a writ of certiorari is a review to

ascertain whether or not a lower court has exceeded its
jurisdiction while exercising a judicial function.        Section
27-25-102(2), MCA.     The District Court judge determined that
Crane had intended to petition for a writ of habeas corpus;
therefore, he treated the petition for writ of certiorari as
a petition for writ of habeas corpus so that the District
Court could review to determine whether Crane was properly
incarcerated.     Section 46-22-101(1), MCA.
        A hearing on the "writ of habeas corpus" was held April
2 and 3, 1981.     Crane was freed April 2, pending final
action.     An opinion and order was issued May 28, 1981,
finding the judgment of the Justice Court "to be void on its
face" and ordering petitioner Crane permanently dismissed
from custody under that order.
        The State of Montana appealed that decision to this
Court June 1, 1981.    We found that the District Court had no
jurisdiction to issue a writ of habeas corpus as petitioner
had not requested one.    We further found that the District
Court had no jurisdiction to issue a writ of certiorari as
the Justice Court had not exceeded its jurisdiction.       See
State v. Crane (P982),        Mont.       ,   639 P.2d 514, 39
St.Rep. 126.    We reversed and remanded the matter to the
District Court and Crane was given thirty days in which to
"prepare, serve and submit a properly prepared petition in
habeas corpus for the court's consideration."       State v.
Crane, 39 St-Rep. at 129.
        The petition was prepared and further hearings were
held by the District Court.    The District Court found the
fine to be presumptively proper, as being within the range
permitted by statute, and the imprisonment to be legal.          The
habeas corpus action was denied.      The April 2, 1981 stay was
dissolved June 3, 1982, and petitioner was ordered back to
jail.
        On J u n e 25, 1982, p e t i t i o n e r r e q u e s t e d t h i s C o u r t t o

s t a y t h e e x e c u t i o n of t h e o r d e r r e t u r n i n g him t o j a i l .        The

s t a y was g r a n t e d J u l y 8 , 1982.          Crane a l s o f i l e d a p e t i t i o n

f o r habeas c o r p u s w i t h t h i s C o u r t .        The p e t i t i o n was d e n i e d

by an o r d e r d a t e d August 1 2 , 1982, s t a t i n g :                "the petitioner

does not s t a t e f a c t s s u f f i c i e n t t o e n t i t l e p e t i t i o n e r t o

r e l i e f a t t h i s time."         Next, p e t i t i o n e r f i l e d a p e t i t i o n f o r

habeas c o r p u s i n F e d e r a l C o u r t .       I t was d e n i e d August 26,

1982, and p e t i t i o n e r r e t u r n e d t o j a i l on t h a t d a t e .

        On August 3 1 , 1982, t h e p e t i t i o n f o r habeas c o r p u s

p r e s e n t l y b e f o r e t h i s C o u r t was f i l e d .    W e are able t o a c t

upon t h i s p e t i t i o n a s p e t i t i o n e r was i n c a r c e r a t e d a t t h e

t i m e it was f i l e d .        S e c t i o n 46-22-101(1),         MCA,     requires t h a t

a n i n d i v i d u a l be " i m p r i s o n e d o r o t h e r w i s e r e s t r a i n e d of h i s

l i b e r t y " i n o r d e r t o p r o s e c u t e a w r i t of habeas c o r p u s .

Crane was n o t i n c a r c e r a t e d when h e f i l e d t h e p r e v i o u s p e t i t i o n

f o r habeas corpus with t h i s Court.                     T h e r e f o r e , w e had no

j u r i s d i c t i o n t o consider t h a t p e t i t i o n .

        F u r t h e r , when t h e S t a t e a p p e a l e d t h e D i s t r i c t C o u r t ' s

w r i t of habeas c o r p u s t o t h i s C o u r t on J u n e 1, 1981, w e had

no j u r i s d i c t i o n t o c o n s i d e r a n a c t i o n i n habeas c o r p u s a s

Crane had f i l e d a n a p p l i c a t i o n f o r w r i t of c e r t i o r a r i w i t h

t h e D i s t r i c t Court.         Therefore, t h i s i s t h e f i r s t t i m e

C r a n e ' s habeas c o r p u s a c t i o n h a s been p r o p e r l y b e f o r e t h i s

Court   .
        P e t i t i o n e r s u b m i t s numerous grounds t o t h i s C o u r t f o r

i s s u a n c e of t h e w r i t .     W e need n o t c o n s i d e r t h o s e grounds a s

a more fundamental ground f o r i s s u i n g t h e w r i t e x i s t s .
P e t i t i o n e r w a s t r i e d and c o n v i c t e d of one v i o l a t i o n of

s e c t i o n 15-57-102,        MCA,     operating a r e t a i l s t o r e without

obtaining a valid r e t a i l license.                    H e was s e n t e n c e d f o r s i x

v i o l a t i o n s of t h a t s e c t i o n .
     The penalty section, 15-57-110, YCA, provides that each
day of violation constitutes a separate offense.     We uphold
that section as constitutional, provided each violation is
properly prosecuted pursuant to the due process guarantees
of our Constitution.     Article 11, Section 24, of the 1972
Montana Constitution grants due process to all accused
individuals.
          "Section 24. Rights of the accused. In all
          criminal prosecutions the accused shall have
          the right to appear and defend in person and
          by counsel; to demand the nature and cause
          of the accusation; to meet the witnesses
          against him face to face; to have process to
          compel the attendance of witnesses in his be-
          half, and a speedy public trial by an impar-
          tial jury of the county or district in which
          the offense is alleged to have been committed,
          subject to the right of the state to have a
          change of venue for any of the causes for
          which the defendant may obtain the same."
     The penalty statute was unconstitutionally applied to
petitioner.    The penalty statute cannot be self-executing.
Defendant must be charged, tried and convicted of each
separate violation.     Be must be granted the opportunity to
defend himself against each separate offense.
     Petitioner was afforded due process rights with respect
to only one violation of 15-57-102, MCA.    The other violations
were never properly prosecuted.     Therefore, petitioner was
properly convicted of only one violation.    We cannot ignore
this plain error.     We reduce petitioner's fine to $200.00,
which was the Justice Court's imposed penalty for one violation.
     Petitioner has served at least fifty-two days in jail,
at a rate of $10.00 per day.     Petitioner has satisfied the
total fine properly assessed against him, as well as his one
day sentence for contempt of court.
     The temporary stay of execution of petitioner's sentence
we ordered September 2, 1982, is now deemed permanent.
    Petitioner is forever removed from any custody resulting

    from the February 9, 1979, order of the Justice Court.
                                    /1




    We Concur:




    Justic
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