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                                                                No. 99-474

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 69N


                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                       NICHOLAS MORRIS,

                                                     Defendant and Appellant.


                        APPEAL FROM: District Court of the Eighteenth Judicial District,

                                                In and for the County of Gallatin,

                                       Honorable Thomas A. Olson, Judge Presiding

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                         Nicholas Morris, Pro Se, Mason, Tennessee

                                                            For Respondent:

                         Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders,

                                        Assistant Attorney General, Helena, Montana

                                  Marty Lambert, County Attorney, Bozeman, Montana


                                            Submitted on Briefs: January 20, 2000


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                                                       Decided: March 16, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice Jim Regnier 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.Nicholas Morris appeals the May 18, 1999, Order of the Eighteenth Judicial District
Court, Gallatin County, denying his postconviction motion to amend his sentence. We
affirm.

¶3.Morris's appeal raises the following issues:

¶4. Whether the District Court erred in concluding that Morris's petition was time-barred?

¶5. Whether the District Court erred in concluding that Morris was not entitled to
retroactive application of the rule announced in State v. Guillaume, 1999 MT 29, 293
Mont. 224, 975 P.2d 312?

                                                FACTUAL BACKGROUND

¶6.On December 13, 1993, the State filed an Information charging Morris with two counts
of felony assault. The State alleged that on or about December 3, 1993, Morris purposely
or knowingly caused bodily injury to Tim Stiller with a baseball bat and kicked Gallatin
County Sheriff's Deputy Brian Gootkin in the thigh with steel tipped cross country ski
boots. Following a jury trial, Morris was found guilty of both offenses. The District Court
entered its Sentence and Judgment on February 24, 1994. The court ordered Morris to
serve ten years in the Montana State Prison on each count, to run concurrently, as well as

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two additional years under Count I for the use of a weapon. Morris applied for a review of
his sentence. On June 9, 1994, the Sentence Review Division refused to modify his
sentence.

¶7.On May 11, 1999, Morris filed a Motion for Amendment of Sentence requesting that
his sentence be amended pursuant to our decision in Guillaume. On May 18, 1999, the
District Court issued an Order denying Morris's petition. Morris appeals.

                                                  STANDARD OF REVIEW

¶8.Our standard of review of a district court's conclusions of law is whether the court's
interpretation of the law is correct. State v. Nichols, 1999 MT 212, ¶ 8, 295 Mont. 489, ¶
8, 986 P.2d 1093, ¶ 8.

                                                              ISSUE ONE

¶9.Whether the District Court erred in concluding that Morris's petition was time-barred?

¶10.The District court concluded that Morris's petition was time barred under § 46-21-102
(1), MCA because it was not filed within one year of the date Morris's conviction became
final. However, as the State notes, the one-year statute of limitations contained in § 46-21-
102(1), MCA, applies only to those convictions which became final by April 24, 1996. See
Nichols, ¶ 19. Since the District Court entered its Sentence and Judgment on February 24,
1994, Morris's petition for postconviction relief is subject to the five-year statute of
limitations set out in the pre-1997 version of § 46-21-102, MCA. See Nichols, ¶ 19.
Section 46-21-102, MCA (1993), provided that a petition for relief "may be filed at any
time within 5 years of the date of conviction." Morris's Petition for Amendment of
Sentence was filed on May 11, 1999, more than five years after Sentence and Judgment
was entered. Accordingly, the District Court correctly ruled that Morris's petition was time-
barred, even though it applied the wrong version of the statute.

¶11.Nevertheless, Morris argues that we should disregard this procedural time-bar under
our decision in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268. However, we have
held that the "miscarriage of justice" exception we articulated in Perry applies only to
postconviction claims which allege newly discovered evidence that would establish that
the defendant did not commit the offense. See Nichols, ¶ 20. Perry does not apply to
claims of double jeopardy such as Morris's which are brought after the tolling of § 46-21-


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102, MCA. See Nichols, ¶ 21.

                                                                 ISSUE TWO

¶12.Whether the District Court erred in concluding that Morris was not entitled to
retroactive application of the rule announced in Guillaume?

¶13.The District Court also concluded that Morris could not receive the benefit of
Guillaume because the rule announced in Guillaume did not apply retroactively. We have
subsequently ruled that our holding in Guillaume does not apply to cases which were final
when our opinion in Guillaume was issued. See Nichols, ¶ 17. Morris's case was final and
not pending on direct review when we issued Guillaume. Therefore, the District Court was
correct. Regardless, the issue of the retroactive application of Guillaume to Morris's case
is moot because Morris's petition for postconviction relief is time-barred.

¶14.Affirmed

                                                            /S/ JIM REGNIER

We concur:

                                                           /S/ J. A. TURNAGE

                                                        /S/ JAMES C. NELSON

                                                   /S/ WILLIAM E. HUNT, SR.

                                                  /S/ W. WILLIAM LEAPHART

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