                                                                                           April 29 2008


                                         DA 07-0171

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 149N


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.
WILLIAM LEE “RANDY” CLARK,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Seventeenth Judicial District,
                      In and for the County of Phillips, Cause No. DC 892
                      Honorable David Rice, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      William Lee “Randy” Clark, Pro Se, Palm Bay, Florida

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Jesse A.
                      Laslovich, Assistant Attorney General, Helena, Montana

                      Ed Amestoy, Phillips County Attorney; Dan O’Brien, Deputy
                      County Attorney, Malta, Montana



                                                   Submitted on Briefs: February 6, 2008

                                                               Decided: April 29, 2008


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     A jury convicted William L. “Randy” Clark of eight counts of sexual intercourse

without consent.    Judgment was entered designating him a dangerous offender and

sentencing him to 30 years in prison on each count, to run concurrently. We affirmed.

See State v. Clark, 209 Mont. 473, 682 P.2d 1339 (1984). He subsequently was paroled

and, by 2005, had been living in Florida for some time. He has complied with the sex

offender registration statutes.

¶3     In the spring of 2005, Clark moved the Seventeenth Judicial District Court,

Phillips County, to release him from mandatory sex offender registration. He substituted

the presiding judge, and the Honorable David G. Rice assumed jurisdiction. Clark later

moved for disqualification of Judge Rice. The District Court denied his motions and

Clark, a self-represented litigant, appeals. We affirm.

¶4     Section 3-1-805, MCA, sets forth the means by which a party to a judicial

proceeding may seek disqualification of the presiding judge. The first requirement is the

filing of “an affidavit[.]” Clark did not file an affidavit. Section 3-1-805(c), MCA,



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authorizes the setting aside as void of “[a]ny affidavit which is not in proper form[.]”

Here, the District Court denied the motion on that basis.

¶5     Clark’s motion for release from the sex offender registration requirement was

made pursuant to § 46-23-506(3)(b), MCA, which authorizes such relief from the duty to

register under carefully delineated circumstances.      Pursuant to § 46-23-506(5)(a)(i),

MCA, however, such relief is not available if the person was convicted of the offense of

sexual intercourse without consent and the victim was compelled to submit by force.

¶6     Here, the fact of the convictions of eight counts of sexual intercourse without

consent is of record and undisputed.        The District Court advanced the statutory

definitions of force and, with Clark’s agreement, reviewed Clark’s trial transcript prior to

making its determination regarding force. It located sufficient evidence in the victim’s

testimony to determine that she had experienced pain and bodily injury. Indeed, the

victim testified that she “was hurting and [] was bleeding[,]” she told him it hurt, and he

got rough with her once or twice.    Thus, while Clark correctly asserts that the offenses

were charged as “statutory rapes”—that is, sexual intercourse without consent with a

minor—as opposed to sexual intercourse without consent involving force or violence, the

language of § 46-23-506(5)(a)(i), MCA, directs the court to the nature of the offense and

not the manner in which it was charged.

¶7     Finally, Clark contends that, while the District Court restored any civil rights of

which the sentencing judge had deprived him, the court abused its discretion by

inconsistently denying his request for release from sex offender registration. However,

he advances no authority—as required by M. R. App. P. 12—for such a proposition.


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

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record that this

appeal is without merit because the issues are clearly controlled by settled Montana law

that the District Court correctly interpreted, and that no abuse of discretion occurred.

¶9      Affirmed.



                                                  /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS




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