                                  No, 12195

           I N THE SUPREME C U T O THE STATE OF M N A A
                            OR F                 OTN

                                     1972



T E STATE O MONTANA,
 H         F

                            P l a i n t i f f and Respondent,

          -vs   -
BRUCE DAVID FISSETTE,

                            Defendant and Appellant,



Appeal from:        District Court of t h e Eighteenth J u d i c i a l District,
                    Honorable W. W, Lessley, Judge presiding.

Counsel of Record :

         For Appellant :

                Brown and G i l b e r t , Bozeman, Montana,
                William E. G i l b e r t argued, Bozeman, Montana,

         For Respondent :

                Hon, Robert L. Woodahl, Attorney General, Helena,
                 Montana.
                David V, Gliko, A s s i s t a n t Attorney General, argued,
                 Helena, Montana,
                Thomas A. Olson, County Attorney, Bozeman, Montana.
                Thomas D, Gai, Deputy County Attorney, appeared,
                 Bozeman, Montana.



                                             Submitted:         A p r i l 25, 1972

                                               Decided: JllL 2 O       1972.
Filed:    ;jhl'~ 14 1972
               2
M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court.


         Defendant, Bruce David F i s s e t t e , was t r i e d i n t h e j u s t i c e
of t h e peace court i n G a l l a t i n County, Montana.               Following a jury
v e r d i c t of "guilty" of t h e misdemeanor crime of "physical con-
t r o l of v e h i c l e while under the influence of i n t o x i c a t i n g llquor",
he was sentenced by the j u s t i c e of the peace t o pay a f i n e of

$210 *
         Defendant appealed t h i s judgment of conviction t o the
d i s t r i c t court of t h e eighteenth j u d i c i a l d i s t r i c t , county of
G a l l a t i n and a f t e r a t r i a l de novo t h e jury found defendant
guilty.       The court entered judgment on t h e v e r d i c t of a $500
f i n e and a j a i l sentence of s i x months, with a l l but t h i r t y
days suspended.           Defendant appeals from t h e f i n a l judgment,
         There i s but one i s s u e presented on appeal:                 Was i t e r r o r
f o r the d i s t r i c t court t o increase t h e sentence or punishment
a f t e r t r i a l de novo i n the d i s t r i c t court under t h e f a c t s of
t h i s case?
         The United S t a t e s Supreme Court decision r e l i e d on by
defendant, North Carolina v. Pearce, 395 U.S.                       7 1 1 , 89 S . C t .
2072, 23 L ed 2d 656, 669, s t a t e s :
         "Due process of law, then, r e q u i r e s t h a t v i n d i c t i v e -
         ness a g a i n s t a defendant f o r having successfully
         attacked h i s f i r s t conviction must play no p a r t i n
         t h e sentence he receives a f t e r a new t r i a l . And
         since the f e a r of such vindictiveness may unconsti-
         t u t i o n a l l y d e t e r a defendant's e x e r c i s e of t h e r i g h t
         t o appeal o r c o l l a t e r a l l y a t t a c k h i s f i r s t conviction,
         due process a l s o r e q u i r e s t h a t a defendant be freed
         of apprehension of such a r e t a l i a t o r y motivation
         on t h e p a r t of the sentencing judge.
         II
           I n order t o a s s u r e t h e absence of such a motivation,
         we have concluded t h a t whenever a judge imposes a
         more severe sentence uDon a defendant a f t e r a new
                -         -



         t r i a l , the reasons f o r h i s doing so must affirma-
         t i v e l y appear. Those reasons must be based upon
         o b j e c t i v e information concerning i d e n t i f i a b l e conduct
         on the p a r t of t h e defendant occurring a f t e r the time
         of t h e o r i g i n a l 'sentencing proceeding.' And the
          f a c t u a l d a t a upon which t h e increased sentence
          i s based must be made p a r t of t h e recrod, s o
          t h a t t h e c o n s t i t u t i o n a l legitimacy of t h e i n -
                                   .
          creased sentence may be f u l l y reviewed on appeal."
          (Emphasis added )
                                   1t
          Pearce was n o t a            de novo" cause i n t h e context we a r e
speaking of de novo i n t h i s opinion, y e t t h e language does not
exclude a "de novo" c a s e when i t speaks i n terms of a new t r i a l .
                                                                  It
Defendant argues t h a t a l l t r i a l s "anew" a r e                de novo", viewed
literally.
          The United S t a t e s Supreme Court i n Colten v. Kentucky,
       U.S.           P         S.Ct.            9           L ed 2d               , No,       71-404,
(Kentucky Court of Appeals, Decided June 12, 1972), decided t h e
i s s u e presented h e r e ,
          Colten involves a two-tier system, t h e same a s our j u s t i c e
and d i s t r i c t c o u r t system      and i n Kentucky appeal from t h e lower
c o u r t i s a matter of r i g h t and t h e t r i a l on appeal i s de novo, a s
i t i s i n Montana.

          I n d i s c u s s i n g t h e i s s u e s i n Colten t h e United S t a t e s
Supreme Court s a i d :
         "Colten r i g h t l y reads Pearce t o f o r b i d , following a
         s u c c e s s f u l appeal and reconviction, t h e imposition
         of a g r e a t e r punishmentthan was imposed a f t e r t h e
         f i r s t t r i a l , absent s p e c i f i e d f i n d i n g s t h a t have not
         been made here. He i n s i s t s t h a t t h e Pearce r u l e i s
         a p p l i c a b l e h e r e and t h a t t h e r e i s no m n t d i f f e r -
         ence between t h e Pearce model and t h e Kentucky two-
         t i e r t r i a l de novo system. Both, he a s s e r t s , involve
         reconviction and resentencing, both provide t h e con-
         v i c t e d defendant with t h e r i g h t t o 'appeal' and i n
         both---even thouah under t h e Kentuckv scheme t h e
         I appeal' i s i n r G a l i t y a t r i a l de noGo---a               penalty f o r
         t h e same crime i s f i x e d twice, with t h e same p o t e n t i a l
         f o r an increased penalty upon7a s u c c e s s f u l ' a p p e a l 1 .
          " ~ u tPearce d i d n o t t u r n simply on the f a c t of convic-
          t i o n , appeal, r e v e r s a l , reconviction, and a g r e a t e r
          sentence. The c o u r t was t h e r e concerned with two de-
          defendants who, a f t e r t h e i r convictions had been s e t
          a s i d e on appeal, were reconvicted f o r t h e same o t t e n s e s
          and sentenced t o longer prison terms. I n one c a s e t h e
           term was increased from 10 t o 25 years, Positing; t h a t
          a more severe penalty a f t e r reconviction would v i o l a t e
           due process of law i f imposed a s purposeful punishment
           f o r having s u c c e s s f u l l y appealed,the c o u r t concluded
that such untoward sentences occurred with suf-
ficient frequency to warrant the imposition of a
prophylactic rule to ensure ' that vindictiveness
against a defendant for having successfully at-
tacked his first conviction * * * [would] play no
part in the sentence he receives after a new trial
* * *' and to ensure that the apprehension of such
vindictiveness does not I deter a defendant's exer-
cise of the right to appeal or collaterally attack
his first conviction * * *' 395 U.S., at 725.
"Our view of the Kentucky two-tier system of ad-
ministering criminal justice, however, does not
lead us to believe, and there is nothing in the
record or presented in the briefs to show, that the
hazard of being penalized for seeking a new trial,
which underlay the holding of Pearce, also inheres
in the de novo trial arrangement. Nor are we con-
vinced that defendants convicted in Kentucky's
inferior courts would be deterred from seeking a
second trial out of fear of judicial vindictive-
ness. The possibility of vindictiveness, found to
exist in Pearce, is not inherent in the Kentucky
two-tier system.
"We note first the obvious: that the court which
conducted Colten's trial and imposed the final
sentence was not the court with whose work Colten
was sufficiently dissatisfied to seek a different
result on appeal; and it is not the court that is
asked to do over what it thought it had already done
correctly. Nor is the de novo court even asked to
find error in another court's work. Rather, the
Kentucky court in which Colten had the unrestricted
right to have a new trial was merely asked to accord
the same trial, under the same rules and procedures,
available to defendants whose cases are begun in that
court in the first instance. It would also appear
that however understandably a court of general juris-
diction might feel that the defendant who has had a
due process trial ought to be satisfied with it, the
de novo court in the two-tier system is much more likely
meet the attitude of the Kentucky Court of Appeals
in this case when it stated that 'the inferior courts are
not designed or equipped to conduct error-free trials,
or to ensure full recognition of constitutional free-
doms. They are courts of convenience, to provide
speedy and inexpensive means of disposition of charges
of minor offenses.' Colten v. Commonwealth, 467 S,W.2d
374, 379 (Ky. 1971). We see no reason, and none is
offered, to assume that the de novo court will deal any
more strictly with those who insist on a trial in the
superior court after conviction in the Quarterly Court
than it would with those defendants whose cases are
filed originally in the superior court and who choose
to put the State to its proof in a trial subject to
constitutional guarantees,


 It is suggested, however, that the sentencing strictures
II
imposed by Pearce are essential in order to minimize an
asserted unfairness to criminal defendants who
must endure a trial in an inferior court with
less than adequate protections in order to secure
a trial comporting completely with constitutional
guarantees. We are not persuaded, however, that
the Kentucky arrangement for dealing with the less
serious offenses disadvantages defendants any more
or any less than trials conducted in a court of
general jurisdiction in the first instance, as long
as the latter are always available. Proceedings
in the inferior courts are simple and speedy, and,
if the results in Colten's case are any evidence,
the penalty is not characteristically severe. Such
proceedings offer a defendant the opportunity to
learn about the prosecution's case and, if he chooses,
he need not reveal his own. He may also plead guilty
without a trial and promptly secure a de novo trial
in a court of general criminal jurisdiction, He
cannot, and will not, face the realistic threat of a
prison sentence in the inferior court without having
the help of counsel, whose advice will also be available
in determining whether to seek a new trial, with the
slate wiped clean, or to accept the penalty imposed
by the inferior court. The State has no such options.
Should it not prevail in the lower court, the case is
terminated, whereas the defendant has the choice of
beginning anew. In reality his choices are to accept
the decision of the judge and the sentence imposed in
the inferior court or to reject what in effect is no
more than an offer in settlement of his case and seek
the judgment of judge or jury in the superior court,
with sentence to be determined by the full record
made in that court. We cannot say that the Kentucky
trial de novo system, as such, is unconstitutional
or that it presents hazards warranting the restraints
called for in North Carolina v. Pearce, particularly
since such restraints might, to the detriment of both
defendant and State, diminish the likelihood that in-
Zerior courts would impose lenient sentences whose ef-
kect would be to limit the discretion ot a superior
court judge or jury if the defendant is retried and
found guilty*"(~mphasis added)
The judgment of the district court is affirmed.
Associate Justices.
