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                                                               No. 01-158

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 234N



                                                        DANIEL WANNER,

                                                     Petitioner and Respondent,

                                                                      v.

                                                         MIKE MAHONEY,

                                                    Respondent and Appellant.

                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                         Honorable Russell C. Fagg, Judge Presiding

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                       Daniel Wanner, Pro Se, Deer Lodge, Montana

                                                           For Respondents:

                            Honorable Mike McGrath, Attorney General; Jennifer Anders,

                                       Assistant Attorney General, Helena, Montana

                                  Dennis Paxinos, County Attorney, Billings, Montana

                                            Submitted on Briefs: October 11, 2001
                                               Decided: November 30, 2001


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                                                                    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. It 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 Daniel Wanner (Wanner) appeals from the denial of his petition for postconviction
relief by the District Court for the Thirteenth Judicial District Court, Yellowstone County.

¶3 Wanner entered pleas of guilty to three separate counts of felony DUI in 1998 and
1999. He was sentenced for all three offenses in June 1999. He did not file an appeal from
any of these convictions or sentences.

¶4 On October 6, 2000, Wanner filed a petition for postconviction relief in the District
Court alleging various errors. The District Court issued an Order and Memorandum
dismissing the petition on January 12, 2001. The District Court held that the petition was
barred by the one-year statute of limitations and that the sentencing issues raised could
have been raised on direct appeal and were thus procedurally barred. We affirm the
District Court.

¶5 Section 46-21-102, MCA (1997), provides that a petition for postconviction relief may
be filed at any time within one year of the date that the conviction becomes final. Further,
conviction becomes final when the time for appeal to the Montana Supreme Court expires.

¶6 In the present matter, judgment was entered on all three felony DUI offenses on June
18, 1999. Wanner thus had sixty days, until August 17, 1999, to file a direct appeal and
until August 17, 2000, to file a postconviction petition. His petition, filed on October 6,
2000, was beyond that deadline.

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¶7 The postconviction statute of limitations is a jurisdictional limit on litigation, and its
waiver is justified only by a clear miscarriage of justice, i.e., one so obvious that the
judgment is rendered a complete nullity. Petition of Gray (1995), 274 Mont. 1, 2, 908 P.2d
1352. The miscarriage of justice exception does not apply to postconviction claims unless
they allege newly discovered evidence which would establish that the defendant did not
commit the offense. State v. Redcrow, 1999 MT 95, ¶ 37, 294 Mont. 252, ¶ 37, 980 P.2d
622, ¶ 37. In the present matter, Wanner has alleged various sentencing errors. He has not
alleged newly discovered evidence which would establish that he did not commit the
offenses.

¶8 Pursuant to § 46-21-201(1), MCA, a district court is authorized to summarily dismiss a
petition for postconviction relief if the records and files of the case conclusively show that
the petitioner is not entitled to relief. Here, the records clearly show that the petition was
barred by the one-year statute of limitations. We hold that the District Court properly
dismissed Wanner's postconviction petition without requesting a responsive pleading from
the State or conducting an evidentiary hearing.

¶9 Affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                           /S/ JIM REGNIER

                                                   /S/ TERRY N. TRIEWEILER

                                                       /S/ JAMES C. NELSON

                                                               /S/ JIM RICE




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