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                                                                No. 98-660

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 313N



STATE OF MONTANA,

Plaintiff and Respondent,

v.

GLORIA WOLF BLACK NOT AFRAID,

Defendant and Appellant.




                                                          APPEAL FROM: District Court of the Thirteenth Judicial
                                                          District,

In and for the County of Yellowstone,

The Honorable Russell C. Fagg, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Richard J. Carstensen, Attorney at Law, Billings, Montana

For Respondent:

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Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena,
Montana

Dennis Paxinos, Yellowstone County Attorney; Beverly Tronrud, Deputy

Yellowstone County Attorney, Billings, Montana




Submitted on Briefs: November 18, 1999

Decided: December 14, 1999

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. ¶ Defendant, Gloria Wolf Black Not Afraid (Not Afraid), was charged with driving
         under the influence of alcohol, a felony (felony DUI); failure to show proof of
         liability insurance; driving while license suspended or revoked; and driving with
         fictitious license plates.
      3. ¶ Not Afraid moved to dismiss the felony DUI charge on the basis that the statute


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        which made fourth and subsequent DUI offenses a felony was impermissible
        retroactive legislation and that the charging document did not state facts sufficient to
        give jurisdiction to the District Court. The District Court denied the motion.
     4. ¶ Not Afraid subsequently entered a guilty plea to the charges and reserved her right
        to appeal the denial of the motion to dismiss.

                                                              Issues Presented

     5. ¶ 1. Whether the District Court lacked jurisdiction because the Information charging
        Not Afraid with felony DUI did not enumerate each of her prior offenses, the courts
        in which the prior convictions were obtained, or the dates on which the prior
        offenses were committed.
     6. ¶ 2. Whether the 1995 amendment which made fourth offense DUI a felony was
        enacted prior to Not Afraid's fourth DUI offense and was thus applied retroactively.
     7. ¶ 3. Whether the 1995 amendment which made fourth offense DUI a felony violated
        the prohibition against ex post facto legislation.

                                                            Standard of Review

     8. ¶ We review a district court’s grant or denial of a pretrial motion to dismiss in a
       criminal case to determine whether the court’s conclusions of law are correct. State
       v. Morgan, 1998 MT 268, ¶ 17, 291 Mont. 347, ¶ 17, 968 P.2d 1120, ¶ 17.

                                                                   Discussion

     9. ¶ 1. Whether the District Court lacked jurisdiction because the Information charging
     Not Afraid with felony DUI did not enumerate each of her prior offenses, the courts
     in which the prior convictions were obtained, or the dates on which the prior
     offenses were committed.
 10. ¶ The Information charged Not Afraid with driving under the influence of alcohol, a
     felony, on December 20, 1995 and the Affidavit and Motion for Leave to File
     Information stated that, "[s]ubsequent investigation revealed the Defendant had
     three or more prior DUI or per se convictions." Not Afraid argues that, in the
     absence of specific allegations as to the time, place and court involved in each of the
     prior convictions, the court had no jurisdiction over the charge.
 11. ¶ District Courts have original jurisdiction in all criminal cases amounting to a
     felony. Section 3-5-302(1)(a), MCA. A felony is an offense in which the sentence


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       imposed upon conviction is death or imprisonment in a state prison for any term
       exceeding one year. Section 45-2-101(22), MCA. Driving under the influence of
       alcohol or drugs is a criminal offense punishable as either a misdemeanor or a
       felony. Section 61-8-714, MCA (1995). The Information in the case sub judice
       clearly charged Not Afraid with felony DUI. The affidavit in support of the
       Information stated that Not Afraid "had three or more DUI or per se convictions" on
       her record.
 12.   ¶ The underlying purpose of an information is to " 'reasonably apprise the person of
       the charges against him so that he may have an opportunity to prepare his defense.' "
       State v. Steffes (1994), 269 Mont. 214, 223, 887 P.2d 1196, 1202 (quoting State v.
       Matt (1990), 245 Mont. 208, 213, 799 P.2d 1085, 1088). An information charging
       felony DUI need not enumerate the prior offenses in order to establish jurisdiction in
       the district court. See, e.g., State v. Campbell (1980), 189 Mont. 107, 119, 615 P.2d
       190, 197. In State v. Nelson (1978), 178 Mont. 280, 283, 583 P.2d 435, 436, the
       defendant was charged with "the crime of Driving While Under the Influence of
       Intoxicating Liquor (3rd offense)." He argued that the information failed to establish
       the jurisdiction of the district court because it did not specifically allege two prior
       convictions. See Nelson, 178 Mont. at 283, 583 P.2d at 436-37. This Court rejected
       the argument noting that the affidavit filed in support of the information clearly
       stated that the defendant's driving record indicated " 'two previous driving while
       intoxicated convictions.' " Nelson, 178 Mont. at 283-84, 583 P.2d at 437. The Court
       held, "[r]eference to the affidavit filed is clearly permissible." Nelson, 178 Mont. at
       284, 583 P.2d at 437. The information, in combination with the supporting affidavit
       was sufficient to give jurisdiction to the district court. Nelson, 178 Mont. at 284, 583
       P.2d at 437.
 13.   ¶ In the case at hand, the Information expressly charged Not Afraid with felony DUI
       and the affidavit in support of the Information clearly stated, "[s]ubsequent
       investigation revealed the Defendant had three or more prior DUI or per se
       convictions." We hold that the District Court did not err in denying the motions to
       dismiss.
 14.   ¶ 2. Whether the 1995 amendment which made fourth offense DUI a felony was
       enacted prior to Not Afraid's fourth DUI offense and was thus applied retroactively.
 15.   ¶ In 1995, the Montana Legislature amended the laws pertaining to driving while
       intoxicated and created a felony sanction for fourth or subsequent offense DUI. See
       § 61-8-714(4), MCA (1995). The amendment which made fourth or subsequent DUI
       a felony offense became effective on October 1, 1995. Not Afraid committed her
       fourth DUI offense on or about December 20, 1995, after the effective date of the

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      amendment. Accordingly, the law was not applied retroactively.
  16. ¶ 3. Whether the 1995 amendment which made fourth offense DUI a felony
      violated the prohibition against ex post facto legislation.
  17. ¶ Not Afraid argues that the amendment which made her fourth DUI a felony
      violates the constitutional prohibition against ex post facto legislation. We addressed
      this argument in State v. Brander (1996), 280 Mont. 148, 930 P.2d 31. In Brander,
      we held that the application of the 1995 amendments did not violate the ex post
      facto clauses of the Montana Constitution and United States Constitution. Brander,
      280 Mont. at 154-55, 930 P.2d at 35. That decision was reaffirmed in State v. Pratt
      (1997), 286 Mont. 156, 951 P.2d 37. We noted in Pratt that the legislature enacted
      the felony DUI statute to punish repetitive behavior more severely rather than to
      punish defendants for prior convictions. Pratt, 286 Mont. at 170, 951 P.2d at 45.
      Those decisions are dispositive of Not Afraid's contentions in the present appeal.
      We conclude that the felony DUI statute is not ex post facto legislation.
  18. ¶ The convictions are affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ KARLA M. GRAY




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