                                           No. 99-697

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 88N


CHARLES L. BAKER, JR.,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.




APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and For the County of Flathead,
                     Honorable Ted O. Lympus, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Charles L. Baker, Jr., pro se, Missoula, Montana

              For Respondents:

                     Honorable Mike McGrath; Attorney General; Micheal S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     Thomas J. Esch, County Attorney; Eric S. Hummel, Deputy County
                     Attorney, Kalispell, Montana



                                                    Submitted on Briefs: April 11, 2002

                                                                Decided: May 2, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart 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     Charles L. Baker (Baker) appeals from the decision of the

Eleventh Judicial District Court, Flathead County, denying his

petition for postconviction relief.                      We reverse.

¶3     We address the following issue on appeal:

       Is Baker’s double jeopardy claim procedurally barred by § 46-

       21-105(2), MCA, and if not, is he entitled to retroactive

       application of our decision in State v. Guillaume?

                        FACTS AND PROCEDURAL BACKGROUND

¶4     In August 1995 Baker pled guilty to felony assault.                                  In

September 1995 the District Court sentenced Baker to ten years in

the Montana State Prison with an additional ten years for use of a

weapon     during     the    assault,      to       be   served   consecutively.          The

District Court suspended five years of Baker’s total twenty-year

sentence.

¶5     On June 14, 1999, Baker filed a petition for postconviction

relief in the District Court, alleging that his ten-year sentence

under the weapon enhancement statute violated the double jeopardy

provision      of    the    Montana      Constitution.            In   support     of    this




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argument, Baker cited this Court’s decision in State v. Guillaume,

1999 MT 29, 293 Mont. 224, 975 P.2d 312.

¶6   The District Court denied Baker’s petition, concluding that

his double jeopardy claim was procedurally barred by the one-year

time bar set forth in § 46-21-102, MCA.       This appeal followed.

                             DISCUSSION

¶7   In its Response Brief, the State concedes that the District

Court incorrectly applied the one-year time bar to Baker’s petition

for postconviction relief.   Baker’s conviction became final prior

to April 24, 1996.   Therefore, his postconviction relief petition

was subject to the pre-1997 version of § 46-21-102, MCA, which set

forth a five-year statute of limitations.        We agree and conclude

that Baker’s petition was timely filed in the District Court.
¶8   The State argues that we should still uphold the District

Court decision since Baker’s claim is procedurally barred. It

claims he could have raised his double jeopardy claim on direct

appeal.   The State cites to language in State v. Wells, 2001 MT 55,

¶ 12, 304 Mont. 329, ¶ 12, 21 P.3d 610, ¶ 12, that supports this

argument.

¶9   In Wells, we stated that “[t]he postconviction statutes do not

allow prisoners to raise matters that could have been raised on

direct appeal. . . . Wells could have raised her Guillaume double

jeopardy claim on direct appeal.       Thus, she is additionally barred

from raising the issue in a petition for postconviction relief.”

Wells, ¶ 12 (citations omitted).




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¶10    Alternatively, the State argues that, if we find Baker’s

petition is not procedurally barred, we should still uphold the

District Court’s denial because we have consistently held that

Guillaume is only retroactively applied to cases that were not yet

final when Guillaume was decided.

¶11    We   recently    addressed    both    of   these   issues    in    State   v.

Whitehorn, 2002 MT 54, 309 Mont. 63.              In Whitehorn, we overruled

the exact language from Wells that the State relies on here.                      We

stated, “we overrule in part our holding in State v. Wells . . .

only to the extent that we held Wells was barred from raising a

double jeopardy claim in a petition for postconviction relief

pursuant to § 46-21-105(2), MCA, for failing to raise the issue on

direct appeal.”        Whitehorn, ¶ 42.      Therefore, Baker’s claim is not

procedurally barred because he did not raise it in a direct appeal.
¶12    Additionally, in Whitehorn, we reversed our previous line of

cases refusing to give retroactive application of Guillaume.                      We

concluded that we had erred in failing to distinguish procedural

rules from substantive rules when addressing retroactivity.                       We

held   that    this    Court   had   erred    “to   the    extent    we    limited

application of Guillaume to those cases pending on direct review.”

 Whitehorn, ¶ 49.        We reiterated, though, that defendants seeking

postconviction relief, whether under Guillaume or otherwise, are

still required to timely file petitions pursuant to § 46-21-102,

MCA.    Whitehorn, ¶ 43.

¶13    Therefore, because Baker’s petition for postconviction relief

was timely filed, we reverse the District Court’s ruling denying



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Baker relief.         We remand this matter to the District Court for

resentencing in accordance with our decision.



                                                  /S/ W. WILLIAM LEAPHART




We concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER
/S/ PATRICIA COTTER




Chief Justice Karla M. Gray, dissenting.



¶14    I respectfully dissent from the Court's opinion for the reasons stated at length in my

dissent in State v. Whitehorn, 2002 MT 54, 309 Mont. 63.



                                                         /S/ KARLA M. GRAY

Justice Jim Rice joins in the foregoing dissenting opinion.

                                                         /S/ JIM RICE




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