                                        No. 89-369
                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           1989



STATE OF MONTANA,
                      Plaintiff and Respondent,
             -vs-
BRIJCE JAMES CHASSE,
                      Defendant and Appellant.




APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and for the County of Missoula,
                      The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
                      Terry A. Wallace, Missoula, Montana
         For Respondent:

                      Hon. Marc Racicot, Attorney General, Helena, Montana
                      Patti Powell, Asst. Atty. General, Helena
                      Robert Deschamps, 111, County Attorney; Betty Wing,
                      Deputy, Missoula, Montana
                I
                -




        L;    . .-
                lil                        Submitted on Briefs:   Nov. 21, 1989
  L3    CL      -c
                                            Decided:   December 20, 1989
                                             U
Filed


                                    Y
                                           Clerk
Justice John Conway Harrison delivered the Opinion of the Court.

     Defendant Bruce James Chasse appeals his conviction and
sentence in District Court, Missoula County, for Driving Under the
Influence, Second Offense, contending that such conviction violates
the constitutional protection against double jeopardy. We affirm.
     The District Court's opinion and order in this case were based
on the Stipulated Facts filed by both parties. A brief summary of
those facts follows.
     Chasse was first arrested for Driving while Under the
Influence on June 1, 1984 and three days later he pleaded guilty
to that offense. At the time Chasse, only seventeen years old, was
not represented by counsel. Chasse was not advised of his right
as a juvenile to have his parents present or of the consequences
of enhanced punishment for subsequent DUIs. He was fined $50.
     By the time of his second offense DUI on September 15, 1984,
Chasse was eighteen years old. Chasse appeared before a justice
of the peace, whom Chasse claims did not advise him of his rights.
Again, Chasse pleaded guilty. He was sentenced to six months in
jail and fined $400. After spending seven days in jail, Chasse
was released with the condition that he enter an in-treatment
center for alcoholism. Chasse admitted himself to treatment in
Great Falls, and after release from treatment, he attended ACT
school.
     As the result of an October 25, 1986 motorcycle-pickup truck
collision, Chasse was arrested a third time for DUI.        A blood
sample drawn at the hospital where he was taken after the accident
showed Chasse's blood alcohol concentration to be .177.
Originally, Chasse was charged with third-offense DUI and the
matter was filed in district court. When it was learned that
Chasse's first DUI conviction was as a juvenile, the cause was
remanded to justice court as a second offense DUI, pursuant to
State v. Gee (1986), 222 Mont. 498, 723 P.2d 934.
     At the justice court trial Chasse was convicted of second
offense DUI as well as operating a vehicle without proper
registration and driving without a valid driver's license.
Appealing only the DUI conviction to the District Court, Chasse
reasserted his argument that charging him with second offense DUI
violated his constitutional protection against double jeopardy.
Because he had already suffered one conviction for second offense
DUI, Chasse argued that it would be double jeopardy to try him
again for second offense DUI. The District Court rejected this
argument and found Chasse guilty of DUI, second offense.
     On appeal to this Court Chasse presents the same issue:
          Can a person in Montana be convicted of DUI,
          second offense, twice within a period of five
          years under Montana's DUI statutory scheme?
     Chasse makes exactly the same argument to this Court as he did
to the justice and District Courts.   Like the justice and District
Courts, we also reject his double jeopardy argument.
     Chasse was charged under section 61-8-401, MCA, for driving
under the influence of alcohol. After he was tried and convicted,
he was sentenced under the provisions of section 61-8-714, MCA.
     The gist of Chasse's argument is that, according to the
sentencing scheme of section 61-8-714, MCA, two convictions for
second offense DUI within a five-year period is not permitted by
the statute.   Thus, he argues, his twice being convicted for the
crime of second offense DUI constitutes double jeopardy.     This,
Chasse avers, amounts to a denial of procedural and substantive due
process because he is now charged, convicted   and   sentenced   for
a crime undefined by the law--the crime of "second DUI, second
offense.
     Our Double Jeopardy Clause simply states that Ifnoperson shall
be again put in jeopardy for the same offense previously tried in
any juri~diction.~~
                 Art. 11, sec. 25, Mont. Const. (1972).        The
Fifth Amendment to the United States Constitution mandates that no
person shall "be subject for the same offense to be twice put in
jeopardy of life or limb.I1
     In a recent criminal case this Court explored the operation
of the Double Jeopardy Clause:
           The basic design of the Double Jeopardy Clause
           is the prevention of successive prosecutions
           and   the   attendant threat of multiple
           punishments. (Citations omitted.) The appeal
           of a sentence imposed upon conviction does not
           expose a defendant to successive prosecutions
           nor multiple punishments for the same crime.
           A defendant remains subject to a single
           determination of guilt or innocence and a
           single, albeit potentially more severe,
           punishment.
State v. Wirtala (Mont. 1988), 752 P.2d 177, 181, 45 St.Rep. 596,


     In Wirtala, the nature and purpose of the Double Jeopardy
Clause was also discussed:
           That guarantee [against double jeopardy] has
           been said to consist of three separate
           constitutional protections.      It protects
           against a second prosecution for the same
           offense after acquittal. It protects against
           a second prosecution for the same offense
           after conviction.    And it protects against
           multiple punishments for the same offense.
Wirtala, 752 P.2d at 181 (citing United States v. Di Francesco
(1980), 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328,
340).
        None of the three above-listed protections applies to the case
at bar.     This is not a second prosecution for the same offense
after acquittal or conviction.       Nor is Chasse's sentence for the
1986 DUI multiple punishment for the same offense.
        Montana's statutory bar to double jeopardy, found at section
46-11-503, MCA, prohibits 'a prosecution based upon the same
                           '
transaction as a former prosecutionttunder certain circumstances.
It is obvious that Chasse's prosecution for the October 1986 DUI
was not based upon the same transaction as his September 1984
prosecution.     Thus, no double jeopardy attaches.    The problem is
not with Chasse's present DUI conviction but with the prior
convictions.       While   the   two previous   convictions were   not
erroneous, the penalties Chasse received in 1984 may have been
improper.     Nonetheless, the sentence Chasse received in 1989 was
proper and fair.     When the error was discovered, the State moved
to remand the case to justice court and charged Chasse with DUI,
second offense.      He was then properly prosecuted, convicted and
sentenced in accordance with the laws of the State of Montana for
a second offense DUI.
        We affirm the District Court's holding.
We concur:
