State v. Weikert , 2002 MT 193N ( 2002 )

No. 02-113
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 193N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BENJAMIN A. WEIKERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mike Salvagni, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Benjamin A. Weikert, pro se, Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: June 27, 2002
Decided: September 5, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray 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 Benjamin Weikert appeals from an order of the Eighteenth
Judicial District Court, Gallatin County, denying his motion for
credit for time served on probation. We affirm.
¶3 In 1998, Weikert pled guilty to four felony counts and was
sentenced to four five-year suspended sentences, to run
concurrently. The District Court subsequently revoked Weikert’s
suspended sentences, following Weikert’s in-court admission that he
had violated the terms of those sentences, and sentenced him to
five years with the Department of Corrections.
¶4 Weikert later moved for credit for time served on probation,
pursuant to § 46-18-402, MCA. The State of Montana responded and
Weikert filed a reply brief, arguing for the first time that the
revocation of his suspended sentence violated § 46-18-203(7)(b),
MCA, because the court failed to state sufficient reasons for the
revocation, and that his rights were violated under the equal
protection and due process clauses of the federal and state
constitutions. On December 27, 2001, the District Court entered
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its Memorandum and Order denying Weikert’s motion. Weikert
appeals.
¶5 The District Court concluded that § 46-18-402, MCA, is not
applicable in the present case. It further concluded Weikert’s
reply brief was, in substance, a petition for postconviction
relief, which was procedurally barred by the one-year time
limitation contained in § 46-21-101 and -102, MCA. On appeal,
Weikert abandons his original reliance on § 46-18-402, MCA, and
does not assert error in the District Court’s postconviction
relief-related conclusions. He argues only the merits of the
claims asserted in his reply brief.
¶6 The District Court’s determinations are presumed correct and
it is the appellant’s burden to establish error by the court. See
State v. Aakre, 2002 MT 101, ¶ 43, 309 Mont. 403, ¶ 43, 46 P.3d
648, ¶ 43. Weikert addresses neither the court’s conclusion that §
46-18-402, MCA, is inapplicable, nor its conclusion that the issues
raised in his reply brief were time-barred postconviction relief
claims.
¶7 Weikert having failed to establish error in the District
Court’s postconviction relief-related conclusion, he is not
entitled to substantive consideration of the issues underlying
those conclusions. Therefore, we decline to address his arguments
on the merits.
¶8 Affirmed.
/S/ KARLA M. GRAY
We Concur:
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/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JIM RICE
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