author: CHIEF JUSTICE TURNAGE JUSTICE NELSON

text:
    JOHN W. SHARP and DARLENE M. SHARP, Plaintiffs and Appellants, v. DEPARTMENT OF REVENUE OF THE STATE OF MONTANA; and MICK ROBINSON, in his capacity as DIRECTOR, DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Defendants and Respondents.
    No. 96-600.
    Submitted on Briefs June 5, 1997.
    Rehearing Denied October 22, 1997.
    Decided September 15, 1997.
    54 St.Rep. 949. 945 P.2d 38.
    284 Mont. 424.

      For Appellants: Brian Lilletvedt and John B. Kuhr, Bosh, Kuhr, Dugdale, Martin & Kaze, Havre; Henry C. Breighaupt and Milo E. Ormseth, Stoel, Rives, Boley, Jones & Grey, Portland, Oregon.
    For Respondents: Deborah Harten-Moore, Department of Revenue, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

John W. Sharp and Darlene M. Sharp won $47,000,000 in the multi-state lottery game known as Lotto America. The Sharps appeal the judgment of the First Judicial District Court, Lewis and Clark County, that their annual lottery payments are subject to Montana state income tax despite their change of residence from Havre, Montana, to the State of Washington. We affirm.

We restate the issue as whether the District Court erred when it ruled the Sharps’ lottery proceeds are “income earned in Montana” within the meaning of § 15-30-105, MCA, and are subject to Montana’s state income tax.

The State of Montana is a member of the Multi-State Lottery Association (MSLA), an unincorporated government benefit association of state agencies and the District of Columbia, with central offices in Des Moines, Iowa. MSLA operates the multi-state lottery game formerly known as Lotto America. The money for all tickets purchased in the multi-state lottery is pooled. The winnings are paid from that pooled money and are administered for Montana lottery winners by the Montana Lottery Commission pursuant to § 23-7-202, MCA. MSLA rules require that prizes of more than $250,000 must be paid annually in twenty equal payments.

The Sharps were Montana residents when they won the MSLA lottery in November 1991. They are to receive their winnings in twenty annual payments of $2,348,000 each. They reported the first payment of their lottery winnings on their 1991 Montana income tax form.

In August 1992, the Sharps moved to the State of Washington. They filed their 1992 Montana income tax return as part-year residents and did not report their 1992 lottery payment as Montana income because they received it after they moved to Washington.

After the Montana Department of Revenue (DOR) issued the Sharps assessments for income taxes due on their 1992 lottery payment, the Sharps filed objections to the assessments and then filed this action for declaratory judgment. They maintained that their annual lottery payments are in the nature of annuity payments and, as such, are not includable as taxable income in Montana.

The DOR moved to dismiss for failure to state a claim upon which relief can be granted. There being no dispute as to issues of fact, and with the consent of the parties, the District Court treated the motion as one for summary judgment. Noting that similar challenges to taxation of payments to nonresident lottery winners have been raised and rejected in other states, the District Court ruled that the Sharps’ 1992 and subsequent lottery winnings are taxable as income earned in Montana. The Sharps appeal.

Discussion

Did the District Court err when it ruled the Sharps’ lottery proceeds are “income earned in Montana” within the meaning of § 15-30-105, MCA, and are subject to Montana’s state income tax?

Section 15-30-105, MCA, provides that nonresidents of Montana are subject to Montana income tax based upon the ratio of income earned in Montana to total income. “Income earned in Montana” is not defined by statute.

The Sharps assert that § 15-30-105, MCA (1991), applies here. That statute provided for a tax on the income of a nonresident “at the rates specified in 15-30-103 with respect to his entire net income as herein defined from all property owned and from every business, trade, profession, or occupation carried on in this state.” It was amended in 1992 to provide for a tax on a nonresident’s “income earned in Montana.” The Sharps maintain that the purpose of the 1992 amendment to § 15-30-105, MCA, was to change the method of calculating the income taxes due from nonresidents, not to change the existing source of income rules in determining the base for taxation of nonresidents.

The Sharps further maintain that the applicable source of income rule is set forth at § 15-30-131(1), MCA (1991). That statute provided:

In the case of a taxpayer other than a resident of this state, adjusted gross income includes the entire amount of adjusted gross income from sources within this state but shall not include income from annuities, interest on bank deposits, interest on bonds, notes, or other interest-bearing obligations, or dividends on stock of corporations except to the extent to which the same shall be a part of income from any business, trade, profession, or occupation carried on in this state.

The statute was amended in the July 1992 special session of the Montana Legislature to read, “In the case of a taxpayer other than a resident of this state, adjusted gross income includes the entire amount of adjusted gross income as provided for in 15-30-111.” The amendment took effect for tax years beginning after December 31, 1991. Thus, it took effect before the Sharps became nonresidents of Montana.

The Sharps also cite the following Administrative Rule of Montana:

A nonresident’s income from annuities... and all other income from intangible personal property is derived from or attributable to Montana sources only to the extent earned in connection with a business, trade, profession, or occupation carried on in Montana.

Rule 42.16.1113(1), ARM. This administrative rule was last amended in 1983.

The Sharps suggest that payments on an intangible are only taxable by the domicile of the owner. They argue that their right to collect lottery payments has all the legal characteristics of intangible personal property, in that the annual payments are income from intangible contract rights and are in the nature of income from an annuity. Based upon the above now-revised statutes and the corresponding administrative rule, the Sharps argue that in order for Montana to tax their lottery payments, the payments must be found to be from a business, trade, or profession carried on in Montana. Although the DOR contends that the lottery payments are income from the Sharps’ occupation as lottery winners, the Sharps reply that they are not professional gamblers.

A general statement of legislative intent as to what income is subject to state taxation in Montana is provided at § 15-30-102, MCA:

All income except what has been expressly exempted under the provisions of this chapter and income not permitted to be taxed under the constitution of this state or the constitution or laws of the United States shall be included and considered in determining the net income of the taxpayers within the provisions of this chapter.

No Montana statute or administrative rule has specifically defined lottery proceeds as income from intangible personal property or specifically exempted such winnings from state taxation. Further, when they receive their annual lottery payments, the Sharps are not receiving income from or interest on their prize; they are receiving the prize itself. Given the absence of a specific exception of Montana lottery winnings from state taxation, and the above expression of the legislature’s general intent, we conclude that support for the Sharps’ position as to the rule on taxation of lottery prizes prior to 1992 is, at best, speculative.

In Couchot v. State Lottery Comm. (1996), 74 Ohio St.3d 417, 659 N.E.2d 1225, cert. den._U.S._, 117 S.Ct. 55,136 L.Ed.2d 18, the Supreme Court of Ohio considered a challenge by nonresident lottery winners to Ohio state income tax assessments against their annual installment payments of lottery winnings. When Couchot redeemed his winning lottery ticket, Ohio law provided that lottery winnings of nonresidents were not subject to the Ohio income tax. Ohio statutes were subsequently amended to provide for taxation of lottery winnings of nonresidents. Stating that “the taxable event upon which [Ohio statute] levies a tax is the receipt of income,” the Ohio court ruled:

Couchot’s winning of the lottery in 1988 was not a closed transaction, wholly completed at that time. Accordingly, the application of [the Ohio statute as amended in 1989] to his subsequent receipt of installment winnings does not result in new obligations respecting transactions already completed, and, thus, no question of retroactivity is involved.

Couchot, 659 N.E.2d at 1231. The Ohio court ruled that taxation of Couchot’s lottery payments received after the amendment of the statute was not unconstitutionally retroactive.

We agree with the reasoning in Couchot and conclude that the statutes in effect at the time of each annual lottery payment control as to taxation of that payment. We hold that the Sharps’ 1992 and subsequent lottery payments are not excluded from income under §§ 15-30-105 and -131, MCA (1991). We further hold that Rule 42.16.1113(1), ARM, does not alter that determination. The fact that the administrative rule has not been amended since the statutes were amended does not overrule the statutory amendments. In fact, the opposite is true. The legislature has removed the language which appears in the rule from the statutes themselves. In Montana, a statute cannot be changed by administrative rule. See Bick v. State, Dept. of Justice (1986), 224 Mont. 455, 457, 730 P.2d 418, 420.

Thus, we return to the question of whether the Sharps’ annual lottery payments are “income earned in Montana” pursuant to § 15-30-105, MCA. The District Court considered four factors relevant when it determined that the Sharps’ lottery winnings were earned in Montana: the location where the ticket was purchased, the location where the ticket was redeemed, the location where the first payment was received, and the location from which subsequent payments were mailed. In this case, all of these events undisputedly occurred in Montana.

The Sharps argue that these factors are completely irrelevant to the determination of the source of their lottery winning income. This argument is based in large part on their position that Montana statutes in 1992 did not justify the use of the test of contact counting, because the statutes did not attempt to tax income from intangibles for nonresidents. We have rejected that position above. Further, as pointed out by the District Court, the decision in Couchot and the opinion of the Court of Special Appeals of Maryland in Stark v. Comptroller (Md.App. 1989), 554 A.2d 458, support a conclusion that lottery winnings are earned in the state in which they were won.

Couchot quoted the leading case of Harvester Co. v. Dept. of Taxation (1944), 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed. 1373. In Harvester, the Court affirmed the right of the State of Wisconsin to tax dividends received by out-of-state residents from corporate income derived from property located and business transacted within the state.

A state may tax such part of the income of a non-resident as is fairly attributable either to property located in the state or to events or transactions which, occurring there, are subject to state regulation and which are within the protection of the state and entitled to the numerous other benefits which it confers.

Harvester, 322 U.S. at 441-42, 64 S.Ct. at 1064. The Couchot court stated:

It is difficult to imagine a more fundamental exertion of a state’s taxing power than where the state taxes income on winnings from its lottery. The income received by Couchot in this case arose by virtue of his participation in the Ohio lottery. The Ohio lottery is an event exclusively within the power, dominion, and control of Ohio.

Couchot, 659 N.E.2d at 1229. The court went on to hold that taxation of nonresidents’ lottery winnings did not violate due process.

The Sharps argue that their case is distinguishable from Couchot because the multi-state lottery is just that — a multi-state lottery. However, the DOR points out that it is the Montana Lottery, not the MSLA, which bears the obligation to pay, and does pay, the Sharps the annual payments of their lottery winnings. The Montana Lottery is part of the state government of Montana. See §§ 23-7-101 through -412, MCA. We conclude that the Montana Lottery’s participation in the multi-state lottery is inconsequential for purposes of comparing this case with Couchot.

The Couchot court also addressed the issue of whether taxation of a nonresident’s lottery winnings violated the Commerce Clause due to an insufficient nexus between the State of Ohio and the winnings. The court reaffirmed the use of a physical-presence requirement test in analyzing such an issue. Stating that “the entire income received by Couchot, albeit paid over time in installments, is directly related to his physical presence in Ohio,” the court found that the test was satisfied because Couchot purchased his winning ticket and redeemed it in Ohio. Couchot, 659 N.E.2d at 1230.

In Stark, the Court of Special Appeals of Maryland considered a case in which Stark, a resident of the State of Washington, won $1,000,000 in the Maryland lottery. In the words of the court, “He is not complaining about that. What irks him, and has led to this appeal, is the Comptroller’s attempt to tax him on $950,000 of his winnings.” Stark, 554 A.2d at 459.

Stark contended that only the first $50,000 payment on his lottery winnings was subject to Maryland income tax. He argued that his subsequent annual payments on the prize were not income from the State lottery, but were instead income from an annuity which the State of Maryland had admittedly purchased to pay lottery winners and which was administered by a corporate entity in New J ersey. The Stark court stated the issue as whether the periodic payments to Stark constituted taxable earnings from a state lottery prize. After reviewing case law including Harvester and Couchot, the court held:

These cases make clear that a State may tax a nonresident not just on income earned from property in the State or a business carried on in the State but also from “events” or “transactions” occurring in the State, or from intangible property having a special ‘localization” within the State. The domicile of the recipient is not necessarily controlling.

Stark, 554 A.2d at 464. The court determined that a sufficient nexus had been established between the State of Maryland and Stark’s annual payments on his lottery winnings to validate the state’s taxation of the payments. The Stark court held that the state could tax the portion of winnings received after passage of the law authorizing taxation of State lottery winnings of nonresidents, even though those payments were made through the annuity purchased from a private corporation, because the payments were traceable to an event or transaction which occurred in Maryland. Stark, 554 A.2d at 464.

Finding Couchot and Stark persuasive, we agree with the District Court’s determination that there is a sufficient connection between the State of Montana and the annual prize money the Montana Lottery pays to the Sharps to hold that the Sharps’ lottery prize is “income earned in Montana.”

The Sharps further object to application to this case of § 15-30-246, MCA, a 1993 amendment to Montana income tax law. They assert that application of this statute to them is impermissibly retroactive and amounts to ex post facto legislation and that it violates their rights to due process. In the 1993 amendment, the Montana Legislature adopted the following statutory language:

It is the policy and intent of the legislature that lottery proceeds received by a person who redeems a ticket or chance to win a prize on a ticket or chance purchased in Montana under the provisions of Title 23, chapter 7, is Montana source income, notwithstanding the residence of the person or entity that redeems the ticket. This policy statement affirms that the legislature has always considered lottery proceeds to be Montana source income.

Section 15-30-246(1), MCA. The Sharps argue that this is a policy statement, not a tax statute, and therefore does not have the effect of law. They also point out that a legislature’s attempt to declare the intention of a previous legislature is entitled to no weight. Section 15-30-246(2), MCA, further provides that lottery payments are subject to the state withholding tax. The Sharps contend that application of § 15-30-246, MCA, to their case imposes retroactive tax liability upon them and violates Montana and federal constitutional guarantees of due process and equal protection.

The DOR’s response is that the Montana income tax has always taxed the Montana Lottery winnings of nonresidents. In any event, the DOR argues that the taxable event is the receipt of income in a particular year; and, therefore, taxation of that income is not retroactive. The DOR further maintains that it is constitutional to tax some properly or activities differently from other property or activities.

The District Court found it unnecessary to apply § 15-30-246, MCA, in this case. The court instead based its ruling on the determination that the Sharps’ lottery payments are “income earned in Montana” under § 15-30-105, MCA. We conclude that we need not decide this issue, based on our conclusions above and because the District Court did not rely upon § 15-30-246, MCA, in rendering its decision.

We hold that the District Court did not err in ruling that the Sharps’ annual lottery payments are income earned in Montana from a state lottery prize. As such, they are subject to an income tax by the State of Montana. We therefore affirm the decision of the District Court.

JUSTICES HUNT, REGNIER and LEAPHART concur.

JUSTICE NELSON

dissenting.

I dissent. In summary, Sharps’ lottery payments are income from an annuity and from intangible personal property. When Sharps became Washington residents in August 1992, Montana law provided that income received by a nonresident from intangible personal property or from annuities was not subject to Montana state income tax unless earned in connection with a business, trade, profession, or occupation carried on in Montana. Since their lottery payments were not so earned, the Department of Revenue (DOR) was and is without authority to subject Sharps’ lottery payments to Montana state income tax. The 1992 amendments to the tax code did not change Montana’s historic income-sourcing rules. Finally, under the majority’s rationale, the State taxed and is taxing Sharps’ property and income by an unconstitutional and unlawful retrospective application of statutes enacted in 1992.

As the majority points out, no Montana statute or administrative rule specifically defines lottery proceeds as income from intangible personal property. Nevertheless, that is precisely the nature of the property that produces Sharps’ income. Intangible property “has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, copyrights, and franchises.” Black’s Law Dictionary 809 (6th ed. 1990). Rather, an intangible is “a ‘right’ such as a patent, copyright, trademark, etc., or one which is lacking physical existence; such as goodwill.” Black’s Law Dictionary 809 (6th ed. 1990). These definitions are consistent with the notion of intangible property as used in the Montana Code. For example, § 30-9-106, MCA, defines “general intangibles” as including “things in action”; and § 70-2-101, MCA, defines “a thing in action” as “a right to recover money”.

Sharps’ lottery income derives not from any real property or tangible personal property interest, but, rather, from their intangible right under the Montana State Lottery Act of 1985 (Title 23, Chapter 7, Montana Codes Annotated) to receive annual payments for purchasing a winning lottery ticket. Sharps maintain that this statutory right is actually a form of contract right since § 23-7-311(5), MCA (right to prize not assignable but payable to estate or per judicial order) and § 23-7-312, MCA (lottery winnings subject to Title IV-D child support lien) speak in typically contract terminology.

They also argue, persuasively in my view, that their right to receive lottery proceeds is in the nature of another form of intangible property right, an annuity. An annuity is:

A right to receive fixed, periodic payment, either for life or for a term of years. [Citation omitted.] A fixed sum payable to a person at specified intervals for a specific period of time or for life.
The payment or receipt of a series of equal amounts of money per period for a specified amount of time.

Black’s Law Dictionary 90 (6th ed.1990). Indeed, Multi-State Lottery Association Rule 30.1, effective in Montana under § 23-7-202(8), MCA, specifically characterizes lottery payments as annuities payable in twenty equal installments. Moreover, the Internal Revenue Service treats lottery winnings as annuities for purposes of valuing a decedent’s estate under I.R.C. § 7520. See Tech. Adv. Mem. 96-37-006 (May 10, 1996), 1996 WL 518910.

Accordingly, whether viewed in terms of a contractual or statutory right or as the right to receive annuity payments, income from winning a lottery prize clearly derives, not from any real property or tangible personal property interest, but from a thing in action or from intangible personal property.

Recognition of this legal principle is fundamental to a correct analysis of the issue presented in this case because since 1933 Montana has taxed nonresidents only on that portion of their income from annuities and from intangible personal property that is derived from sources within Montana. Under § 15-30-131(1), MCA (1991), a nonresident’s income from intangible personal property is derived from or attributable to sources within Montana only to the extent the intangible property was employed in a business, trade, profession, or occupation carried on in this State. Specifically, this section of the tax code provides:

In the case of a taxpayer other than a resident of this state, adjusted gross income includes the entire amount of adjusted gross income from sources within this state but shall not include income from annuities, interest on bank deposits, interest on bonds, notes, or other interest-bearing obligations, or dividends on stock of corporations except to the extent to which the same shall be a part of income from any business, trade, profession, or occupation carried on in this state. Interest income from installment sales of real or tangible commercial or business property located in Montana must be included in adjusted gross income. Adjusted gross income from sources within and without this state shall be allocated and apportioned under rules prescribed by the department.

Section 15-30-131(1), MCA (1991) (emphasis added).

Similarly, DOR’s administrative rule, § 42.16.1113, ARM, provides that a nonresident’s income from intangible personal property is not “sourced” within this state unless earned in connection with a business, trade, profession or occupation carried on in Montana. Specifically,

(1) A nonresident’s income from annuities', interest on bank deposits, notes, and other interest bearing obligations; dividends on capital stock of corporations, royalties from patents and copyrights; and all other income from intangible personal property is derived from or attributable to Montana sources only to the extent earned in connection with a business, trade, profession, or occupation carried on in Montana.
(2) Income from intangible personal property is earned in connection with a business, trade, profession, or occupation carried on in this state if the intangible personal property is employed as capital in this state or if the possession and control of the property has been localized in connection with the business, trade, or occupation carried on in this state so as to become an asset thereof.
(3) Interest income received by a nonresident on an installment transaction arising from the sale of real or tangible business property located in Montana shall be deemed to be income from sources within Montana, unless the item is properly excludable from federal gross income.

Section 42.16.1113, ARM (emphasis added).

In 1992 a special legislative session adopted certain amendments to Title 15, Chapter 30, Montana Code Annotated. These amendments became effective August 6, 1992. Section 9, Ch. 14, L., 1992. Section 15-30-131, MCA, was amended to read: “In the case of a taxpayer other than a resident of this state, adjusted gross income includes the entire amount of adjusted gross income as provided for in 15-30-111.” Section 15-30-111, MCA, was not amended. It provides that adjusted gross income is an individual’s federal adjusted gross income. Under § 15-30-105, MCA (1992), a tax is imposed on the entire net income of nonresidents. However, after calculating the tax imposed, the tax due and payable is determined based upon the ratio of “income earned in Montana” to total income. Section 15-30-105(1), MCA (1992).

While the phrase “income earned in Montana” is not defined, there is, nevertheless, nothing about these 1992 amendments to indicate that “income earned in Montana” was intended to have any different meaning than “income from sources within Montana” as used in the pre-1992 statutes. Adose examination of these amendments leads to this conclusion.

First, the title of Chapter 14 of the 1992 Laws of Montana, “An Act Revising the Method of Calculating the Individual Income Taxes Due From Nonresident and Temporary Resident Taxpayers ...”, supports the conclusion that the amendments were enacted to change the method of income tax calculation or income tax rate, as opposed to effecting a change in the decades-old source of income rules.

Second, harmonizing the phrase “income earned in Montana” in § 15-30-105, MCA (1992), with another section of the tax code pertaining to nonresident taxation, § 15-30-142(1), MCA, reveals that this phrase has the same meaning as “income from sources within Montana.” Section 15-30-142(1), MCA, sets out the amount of income a nonresident must have before being required to file a tax return. This section was also amended by Chapter 14, but, here, the legislature retained the reference to income sources within Montana. Specifically, the nonresident must file a return if his gross income for the tax year derived from “sources within Montana” exceeds the amount of personal exemptions. Section 15-30-142(1), MCA (1992). Only if a nonresident has a certain threshold income from “sources within Montana” must he file a return under § 15-30-142(1), MCA, and proceed to calculate the amount of tax due and payable based upon the ratio of “income earned in Montana” to total income under § 15-30-105, MCA. Thus, its use of similar language in §§ 15-30-105 and 142(1), to describe the same thing — income earned in or from sources within Montana — is clear evidence of the legislature’s intention to retain the traditional source of income rules which had been in effect for nearly 60 years prior to the 1992 amendments. In fact, as Sharps point out, a different construction leads to the absurd result that a person without a filing obligation under § 15-30-142 could nonetheless have a tax liability under § 15-30-105.

Third, the history of the 1992 amendments to Title 15, Chapter 30 of the Montana Code Annotated, is devoid of any evidence that the legislature intended to change the historic source of income rules. Rather, the proceedings behind the adoption of Chapter 14, clearly indicate that even DOR understood that the amendments were passed to correct a tax calculation problem in the pre-1992 statutes that caused residents and nonresidents to fall under disparate and divergent tax brackets. See Bostick v. Department of Revenue (Mont. Tax App. Bd. March 17, 1995), 1995 WL 147895 (summarizing the legislative history of the 1992 amendments).

Finally, DOR’s administrative rule, § 42.16.1113, ARM, cited above, remains in effect even today. As the majority acknowledges, this rule has not been amended since 1983. Obviously, had the legislature actually changed the source of income rules in the 1992 amendments, DOR, being no doubt mindful of Bick v. State, Dept, of Justice (1986), 224 Mont. 455, 730 P.2d 418, would have, likewise, amended this rule years ago and the agency would have adopted some test other than traditional income sourcing. Not only has it not done so, but DOR’s instructions to taxpayers on the 1992 Montana Income Tax Return booklet — the very year that the source of income rules apparently were done away with — and such instructions in each year since, have advised taxpayers that “[i]ntangible income, not related to a Montana business, is nontaxable.” Clearly, the nonresident income-sourcing rules of the pre-1992 tax code were not changed by the 1992 legislative amendments. Importantly, even DOR believed that to be the case and apparently still does.

Sharps are absolutely correct in their assertion that where their lottery ticket was purchased and redeemed; where their first payment was received; and the location from which subsequent payments were mailed, are wholly irrelevant to the statutory interpretation issue which is at the heart of the matter before this Court. Neither the pre-1992 nor the 1992 statutory scheme had anything whatsoever to do with “contact” counting, as the majority puts it. The legislature had for decades opted to tax nonresidents on income from intangible property and annuities under a carefully crafted and very specific sourcing test; the 1992 amendments did not change that. To now interpret these clear and unambiguous statutory criteria by counting “contacts” which are not part of the statute, makes about as much sense as the blind man trying to describe the elephant’s trunk by reference to a tree.

There is no legal justification or basis in Montana law for the majority’s contact- counting approach adopted in this case. Montana’s statutes provide the appropriate basis for analysis and that basis involves application of well-established income-sourcing rules. The obvious error of our disregarding these well-established rules and in adopting contact counting is demonstrated by a simple example. If I, as a Montana resident, pm-chased General Motors stock in 1991 at a brokerage house in Billings and received the first dividend payment while residing in that city, future dividends will now be subject to Montana income tax notwithstanding that I became a Washington resident in 1992. I cannot believe that the 1992 Legislature envisioned such an absurd result or that DOR ever anticipated such a financial windfall when the 1992 amendments were enacted.

Fmthermore, I do not agree with the majority that the reasoning of Couchot v. State Lottery Comm. (Ohio 1996), 659 N.E.2d 1225, International Harvester Co. v. Wisconsin Dept. of Taxation (1944), 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed. 1373, or Stark v. Comptroller (Md.Ct.Spec.App. 1989), 554A.2d458 support its decision. In the first place, these cases did not address the sort of statutory scheme that was in effect in Montana during 1991 and 1992 — a statutory scheme which did not allow for the taxation of income from annuities and from intangible personal property of nonresidents unless that income was derived from somces within Montana. The 1992 amendments did not change that scheme. Since the court in Couchot addressed only the effect of statutes that were subsequently amended to specifically provide for taxation of nonresident lottery winnings, the case is not on point.

As to International Harvester, the property of Sharps being taxed — i.e., their annuity income and their income from intangible personal property — was not located in and was not sourced within Montana after 1991 under this State’s statutory scheme. Accordingly, the rule cited with approval by the majority is inapplicable.

Finally, as to Stark, the opinion addresses only those payments which the taxpayer received after the adoption of statutory amendments expressly imposing a tax on the nonresident winners of the state lottery. Again, as with Couchot and International Harvester, the case is inapplicable. The 1992 amendments to Montana’s law did not effect any change from the 1991 law which, clearly, did not tax nonresident annuity and intangible property income except to the extent such income was sourced in this State under the business, trade, occupation or profession test.

To summarize then, after Sharps became residents of Washington in August 1992, under Montana law then in effect, the income from their lottery payments, being income from an annuity and from intangible personal property, was subject to Montana income tax only to the extent such payments were earned in connection with a business, trade, profession or occupation carried on in Montana. Since their lottery payments received after August 1992 — i.e., the December 1992 and subsequent payments — were undisputedly not so earned and were, thus, not sourced within this State, Montana was and is without authority to tax such payments. The 1992 amendments to the tax code did not change these historic income- sourcing rules.

This brings us to the second error of the majority’s decision in the case at bar. Assume, for purposes of this discussion only, that the 1992 special session did intend and did effect the fundamental change in the nonresident income-sourcing rules that the majority seems to believe resulted from the 1992 amendments. Because such amendments were not effective until August 6, 1992, and expressly apply only to tax years after December 1991 (§§ 9 & 10, Ch.14, L. 1992), Sharps’ December 1992 and subsequent years’ lottery payments were not, using the majority’s contact-counting approach, “earned in Montana” under § 15-30-105, MCA (1992). Furthermore, any attempt to apply such amendments to the 1991 contact events on which the majority relies as constituting Sharps’ “earning” of their lottery income violates Montana’s constitutional prohibition against retrospective legislation found at Article XIII, Section 1(3), which provides: “The legislature shall pass no law retrospective in its operations which imposes on the people a new liability in respect to transactions or considerations already passed.”

Finally, while the majority judiciously chooses to avoid addressing the host of legal and federal and state constitutional infirmities inherent in § 15-30-246, MCA (1993), the passage of this legislation begs an obvious question, the equally obvious answer to which further highlights the underlying error of the majority’s opinion. If the intent of the 1992 special session and the effect of the 1992 amendments were in truth as clear as DOR and the majority now proclaim them to be — i.e., if the source-of-income rules were, in fact, done away with by the 1992 amendments — why, then, would the legislature, less than a year later, find it necessary to affirm that it had “always considered lottery proceeds to be Montana source income”? Section 15-30-246, MCA (1993). The answer, of course, is that the legislature had not always considered lottery payments to be Montana source income and that this gaping hole in the tax code was discovered only after the 1992 amendments went into effect — most likely by DOR when Sharps filed their 1992 income tax return. To paraphrase the quote from Stark cited by the majority, DOR was not complaining that Sharps won the lottery; what irked the agency was that Montana law didn’t allow the State to tax Sharps’ good fortune.

On the undisputed facts here and on what I believe is the correct interpretation of the applicable law, I would hold that Sharps’ lottery payments were not and are not subject to Montana state income tax subsequent to their change of residence to Washington in August 1992. Moreover, I conclude that under the contact-counting approach adopted by the majority here, the 1992 amendments to the tax code are being unlawfully and unconstitutionally applied retrospectively to the Sharps. I would reverse, and I dissent from our failure to do so.

JUSTICES GRAY and TRIEWEILER concur in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    TRACI THOMPSON, Plaintiff and Respondent, v. CITY OF BOZEMAN, Defendant and Appellant.
    No. 97-080.
    Submitted on Briefs June 12, 1997.
    Decided September 15, 1997.
    54 St.Rep. 957. 945 P.2d 48.
    284 Mont. 440.

      For Appellant: William M. Brooke; Moore, O’Connell & Refling, Bozeman.
    For Respondent: Daniel P. Buckley; Berg, Lilly, Andriolo & Tollefsen, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

The City of Bozeman (City) appeals from the order of the Eighteenth Judicial District Court, Gallatin County, granting, in part, the motion for a new trial on the issue of damages filed by Traci Thompson (Thompson). We affirm.

The issue on appeal is whether the District Court erred in concluding that insufficient evidence supported the jury’s zero damage award for pain and suffering and, on that basis, in granting Thompson’s motion for a new trial on that issue.

BACKGROUND

Thompson filed an action against the City alleging that she suffered damages as a result of an accident in which a City police officer in a police cruiser collided with the rear of her vehicle at an intersection in Bozeman, Montana. The City subsequently admitted that the conduct of its employee, the police officer, was negligent and that the negligence caused the accident at issue. The action proceeded to a jury trial on the issues of whether the accident caused Thompson injury and, if so, the amount of Thompson’s damages. The jury returned a verdict in Thompson’s favor on the causation issue and awarded her damages in the amount of $2,000 for medical and chiropractic expenses and $800 for lost wages. The jury awarded zero damages for pain and suffering, loss of ability to pursue occupation, loss of future wages, loss of ability to pursue established course of life, and future medical and chiropractic expenses.

Thompson timely moved for a new trial on the issue of damages, asserting that there was insufficient evidence to support the jury’s zero damage awards. The District Court granted her motion for a new trial on the issue of damages for pain and suffering, concluding that the City did not present evidence controverting Thompson’s evidence that she experienced pain and suffering from the injuries sustained in the accident. It denied her motion as to the other zero damage awards. The City appeals from the order granting a new trial on the issue of pain and suffering damages.

STANDARD OF REVIEW

A district court may vacate a jury’s verdict and grant a new trial when the evidence presented is insufficient to justify the verdict. Section 25-11-102(6), MCA. Conversely, where substantial evidence supports a verdict, the verdict generally cannot be overturned or vacated. Thayer v. Hicks (1990), 243 Mont. 138, 156, 793 P.2d 784, 795. The decision of a district court to grant or deny a motion for a new trial will not be reversed absent a manifest abuse of the court’s discretion. Maurer v. Clausen Distributing Co. (1996), 275 Mont. 229, 234, 912 P.2d 195, 198 (citation omitted). If there is conflicting evidence on an issue, it is an abuse of the district court’s discretion to grant a new trial. Gass v. Hilson (1990), 240 Mont. 459, 462, 784 P.2d 931, 933 (citations omitted).

DISCUSSION

Did the District Court err in concluding that insufficient evidence supported the jury’s zero damage award for pain and suffering and, on that basis, in granting Thompson’s motion for a new trial on that issue?

The City argues that the record contains conflicting evidence on the issue of Thompson’s pain and suffering and, as a result, there is substantial evidence to support the jury’s zero damage award. Thus, according to the City, the District Court abused its discretion in granting a new trial on the issue of pain and suffering damages. We address the City’s arguments in turn.

a. Sufficiency of evidence to support jury’s zero damage award for pain and suffering

It is undisputed that Thompson presented substantial evidence to support an award of damages for pain and suffering. Summarized briefly, that evidence included Thompson’s testimony that, on the day after the accident, she began to feel pain in her back during the latter part of her housekeeping shift at the Super 8 Motel (Motel) and, by the end of her evening shift as a cashier at WalMart, she could hardly move. A few days later, she began treatment with Dr. Ronald Hecht, a chiropractor. Dr. Hecht treated Thompson for back and neck pain approximately 53 times in the four months following the accident. Thompson testified that her symptoms included numbness and tingling in her right arm, headaches at the base of her skull, and pain in her lower back and neck. The chiropractic treatments relieved her pain for several hours, but she needed a treatment each morning in order to be able to work a full shift at the Motel and she also needed to wear a lower back brace for a month following the accident. Thompson’s job duties at the Motel were modified because the repeated bending and lifting required in cleaning rooms intensified the pain in her neck and lower back.

Dr. Hecht diagnosed Thompson as having loss of lordotic curve of the cervical spine, radiculitis (numbness and tingling in her arm) due to intervertebral disc syndrome in the neck, thoracic lumbar sprain/strain, and subluxation of vertebrae. His objective examination and diagnosis paralleled Thompson’s subjective descriptions of her symptoms and, in his opinion, Thompson suffered a real injury in the accident which was painful and uncomfortable for her.

Lisa Jeffers (J effers), Thompson’s supervisor at the Motel, testified that she noticed visible signs of pain in Thompson following the vehicle accident when Thompson attempted to do any work involving bending or heavy lifting. As a result, she modified Thompson’s job duties to remove tasks which involved bending, twisting and lifting. She testified that Thompson gradually resumed normal job duties over the course of several months.

The referenced testimony from Thompson, Dr. Hecht and Jeffers clearly would support an award for pain and suffering damages. Indeed, although it is within the jury’s province to weigh the evidence and determine credibility, a jury is not free to disregard uncontradicted, credible, nonopinion evidence. Brockie v. Omo Con struction (1994), 268 Mont. 519, 522, 887 P.2d 167, 169 (citing Putnam v. Pollei (1969), 153 Mont. 406, 413, 457 P.2d 776, 780). The City contends, however, that testimony from three witnesses controverts Thompson’s evidence regarding her pain and suffering, creates conflicting evidence on the issue and supports the jury’s award of zero damages for pain and suffering. We disagree.

First, the City asserts that the testimony of its expert witness, Dr. Mark Irion, directly controverts Dr. Hecht’s testimony regarding Thompson’s injury. It is true that Dr. Irion’s interpretation of Thompson’s spine x-rays differed from Dr. Hecht’s and that, in Dr. Irion’s opinion, Thompson did not suffer an injury as a result of the accident. However, Dr. Irion’s testimony related to whether the accident was the cause of injury to Thompson. In short, Dr. Irion was a causation witness who opined that the City’s admitted negligence did not cause Thompson injury; he was not a damages witness. Thus, Dr. Irion’s testimony does not controvert, or conflict with, that of Thompson, Dr. Hecht and Jeffers on the issue of Thompson’s pain and suffering.

The City also argues that the jury’s zero damage award for pain and suffering is supported by the testimony of Dr. Denman Lee, an accident reconstructionist, which indicated that the forces exerted on Thompson as a result of the very low speed impact of the vehicles were minimal. Like Dr. Irion’s testimony, Dr. Lee’s testimony relates to whether the vehicle accident caused Thompson injury. Because Dr. Lee’s testimony did not relate to whether Thompson experienced pain and suffering after the accident, it does not controvert, or conflict with, the evidence presented by Thompson on that issue.

Next, the City asserts that Jeffers’ testimony provides a basis for the jury’s zero damage award for pain and suffering because she stated that Thompson did not exhibit pain when doing modified job duties and did not exhibit pain during the entirety of the four months following the accident during which she continued to work at the Motel. Contrary to the City’s assertion, however, Jeffers’ testimony does not controvert Thompson’s testimony that she experienced pain and suffering. As discussed above, Jeffers testified that she witnessed Thompson exhibit signs of pain when performing certain job tasks during at least the first month or two after the accident; indeed, she modified Thompson’s job duties as a result of the pain Thompson was experiencing. Thus, while the Jeffers testimony on which the City relies is relevant to the extent of Thompson’s pain and suffering, it does not controvert, or conflict with, Thompson’s evidence regarding the existence of pain and suffering resulting from the vehicle accident.

The City also points out that, on cross-examination, Thompson testified that notwithstanding her claims of significant pain, she did not ask for prescription pain medication or seek medical attention other than from a chiropractor; to the extent she took medication, it was two aspirin on an irregular basis. This testimony, however, does not controvert the existence of Thompson’s pain and suffering; it relates only to the extent of that pain and suffering.

Finally, the City argues that the jury’s zero damage award for pain and suffering could have reflected a finding that any pain Thompson was still experiencing at the time of trial was attributable to a work-related injury she suffered four months after the accident and that evidence of the later injury supports the zero damage award for pain and suffering. The City’s argument in this regard, however, does not account for or relate to the evidence presented of Thompson’s pain and suffering during the four months between the vehicle accident and the work-related injury. The evidence of Thompson’s work-related injury merely goes to the extent and allocation of her pain and suffering rather than to the existence of pain and suffering resulting from the vehicle accident.

We previously have addressed partial zero damage awards in light of uncontroverted evidence supporting the particular damage award at issue. In Brockie, the personal representative of an estate brought wrongful death and survivorship actions against a construction company. The jury made a substantial damage award in the wrongful death action, but awarded none of the damages for funeral and medical expenses and loss of future earning capacity requested in the survivorship action. Brockie, 887 P.2d at 168. The district court denied the plaintiff’s motion for a partial new trial on survivorship damages and the plaintiff appealed. Brockie, 887 P.2d at 168-69. The record established that all of the plaintiff’s evidence regarding survivorship damages was either stipulated to, or uncontradicted by, the defendant. Brockie, 887 P.2d at 170. Under such circumstances, we held that the jury did not have the choice of whether to believe one party over the other and, as a result, the jury’s verdict on survivorship damages was “impossible” because no substantial evidence supported the jury’s failure to award survivorship damages. Brockie, 887 P.2d at 170 (citation omitted). Similarly, in a case where a jury found that the defendants committed wrongful acts which caused injury to the plaintiffs, but awarded no damages for pain and suffering, we held that it was the jury’s duty to award pain and suffering damages when the evidence clearly established that the plaintiffs suffered painful injury and the defendants presented no evidence to the contrary. Gehnert v. Cullinan (1984), 211 Mont. 435, 439, 685 P.2d 352, 354.

Notwithstanding these cases, the City relies on Maykuth v. Eaton (1984), 212 Mont. 370, 687 P.2d 726, in arguing that the District Court in this case impermissibly substituted its judgment for the judgment of the jury on the issue of pain and suffering damages. We disagree.

In Maykuth, the plaintiff testified to severe injuries and substantial pain resulting from a vehicle accident. The defendant presented evidence that most of the plaintiff’s injuries and associated pain had preexisted, and were not aggravated by, the accident and that some of his physical problems and associated pain resulted from factors other than the accident. Maykuth, 687 P.2d at 726. The district court concluded that a jury award of $700 for the plaintiff’s pain and suffering was unjust and inadequate as a matter of law based on the plaintiff’s testimony at trial. Maykuth, 687 P.2d at 727. We held on appeal that, in light of the conflicting evidence presented, the jury was not compelled to believe the plaintiff’s testimony and, therefore, it was error for the district court to substitute its judgment for that of the jury regarding the adequacy or extent of pain and suffering damages. Maykuth, 687 P.2d at 727.

Maykuth illustrates the standard which applies to the issue of the adequacy of the amount of damages actually awarded by a jury as opposed to the Brockie standard which applies to whether the evidence supports an award of no damages at all. When a jury awards at least some damages based on its assessment of conflicting evidence and weighing of witness credibility, a court may not substitute its judgment as to the proper amount of damages for that of the jury simply because the jury chose to believe one party over another. Maykuth, 687 P.2d at 727; Barnes v. United Industry, Inc. (1996), 275 Mont. 25, 34, 909 P.2d 700, 705. However, where a jury fails to award any damages when the only evidence of record supports an award, that verdict is not supported by substantial evidence and may be set aside. Brockie, 887 P.2d at 170.

Here, Thompson presented evidence that the City’s negligence caused her injury and the City presented conflicting evidence through its causation witnesses. The jury found in Thompson’s favor on that issue. Thompson also presented substantial evidence that she experienced pain and suffering for at least several months as a result of being injured in the vehicle accident. The City did not controvert her evidence on pain and suffering. Because no substantial evidence supports the jury’s failure to award damages for pain and suffering, the jury’s verdict in this regard was “impossible.” See Broekie, 887 P.2d at 170. We conclude that there was insufficient evidence to support the jury’s award of zero damages for Thompson’s pain and suffering.

b. District Court’s grant of new trial on pain and suffering damages

When the evidence presented to a jury is insufficient to justify the jury’s verdict, a district court may vacate the verdict and grant a new trial. Section 25-11-102(6), MCA. This Court will not overturn a district court’s grant of a new trial absent a manifest abuse of discretion. Maurer, 912 P.2d at 198.

We concluded above that the evidence of record in this case is insufficient to support the jury’s award of zero damages for Thompson’s pain and suffering. As a result, we also conclude that the District Court did not abuse its discretion in granting Thompson’s motion for a new trial on the issue of damages for pain and suffering.

Affirmed.

JUSTICES LEAPHART, HUNT, NELSON and REGNIER concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. MICHAEL DOUGLAS REAMS, Defendant and Respondent.
    No. 96-605.
    Submitted on Briefs March 20, 1997.
    Decided September 22, 1997.
    54 St.Rep. 972. 945 P.2d 52.
    284 Mont. 448.

      For Appellant: Marty Lambert, Gallatin County Attorney, Bozeman; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena.
    For Respondent: Derik Pomeroy, Morgan, Cameron & Weaver, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District Court, Gallatin County. On August 30, 1996, the District Court entered an order expunging a 1975 DUI conviction from Defendant Reams’ record and dismissing a charge of felony DUI, fourth offense. From this order, the State appeals. We affirm.

The sole issue raised on appeal is whether the District Court erred in granting Defendant Reams’ motion to expunge his 1975 DUI conviction and dismissing the charge of felony DUI, fourth offense.

FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 1996, Defendant Reams (Reams) was arrested for multiple offenses including driving while under the influence of alcohol (DUI). Reams’ driving record contained three previous DUI convictions: July 1975, March 1990 and May 1990. Consequently, on May 30, 1996, an Information was filed charging Reams with felony DUI, fourth offense, in violation of § 61-8-401, MCA, (Count 1). Additionally, Reams was charged with driving with a revoked driver’s license, a misdemeanor, in violation of § 61-5-212, MCA, (Count 2); operating a motor vehicle without mandatory liability insurance, a misdemeanor, in violation of § 61-6-301, MCA, (Count 3); and operating an unregistered motor vehicle, a misdemeanor, in violation of § 61-3-301, MCA, (Count 4). On June 12, 1996, Reams entered pleas of not guilty to all charges. On July 19,1996, Reams filed a motion to expunge his 1975 DUI conviction to which the State filed a brief in opposition on July 30,1996. The District Court held a hearing on the motion on July 31, 1996. Subsequently, on August 30, 1996, the District Court entered an order granting Reams’ motion to expunge and dismissing Count 1 of the Information. From this order, the State appeals.

STANDARD OF REVIEW

Reams’ motion to expunge his 1975 DUI conviction also, in substance, constituted a motion to dismiss the charge of felony DUI, fourth offense, brought under § 61-8-401, MCA (1995). A district court’s grant or denial of a motion to dismiss in a criminal case is a question oflaw which we review de novo. State v. Brander (1996), 280 Mont. 148, 930 P.2d 31, 33 (citations omitted). Because the parties have raised no factual disputes, we must only determine whether the District Court correctly interpreted the law. Based upon our decisions in Brander and in State v. Bowles (1997), [284 Mont. 490], 947 P.2d 52 we hold that the District Court correctly concluded that Reams’ 1975 DUI conviction should have been expunged in 1981 pursuant to § 61-8-714(5), MCA(1981), and, therefore, the District Court properly dismissed the charge of felony DUI, fourth offense.

DISCUSSION

Did the District Court err in granting Reams’ motion to expunge his 1975 DUI conviction and dismissing the charge of felony DUI, fourth offense?

Section 61-8-714(5), MCA (1981), provided in part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from the defendant’s record. [Emphasis added.]

In 1989 the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant’s record would no longer be expunged, but rather the records and data relating to the prior DUI conviction would become confidential criminal justice information. Brander, 930 P.2d at 33-34 (citing § 2, Ch. 476, L. 1989).

In 1995, the Montana Legislature amended § 61-8-714, MCA, to include a felony sanction for repetitive DUI offenders, which provides in pertinent part:

(4) On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. [Emphasis added.]

In conjunction with this new subsection, the Legislature amended § 61-8-714(6), MCA, (formerly subsection (5)), to provide in pertinent part:

(6) An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender’s fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown. [First emphasis indicates newly added language; second emphasis added.]

In its August 30,1996 Order, the District Court concluded that the issue in the case at bar was not whether §§ 61-8-714(4) and (6), MCA (1995), constitutes ex post facto legislation, but rather whether the defendant’s 1975 DUI conviction “has disappeared from the books [pursuant to § 61-8-714(5), MCA(1981)], so that it may not be counted toward a fourth offense [under § 61-8-714(6), MCA (1995)].” Additionally, the District Court determined that the specific provisions of § 61-8-714(5), MCA (1981), concerning expungement of DUI conviction records controlled over the more general provisions of the Criminal Justice Information Act, §§ 44-5-101, et seq., MCA, concerning expungement and retention of criminal records. Furthermore, the court explained that the case at bar was more analogous to cases involving juvenile records that are sealed automatically than to cases involving a defendant who is required to file a motion or petition for judicial expungement. Consequently, the District Court held that Reams’ 1975 DUI conviction should have been expunged at the time of the enactment of § 61-8-714(5), MCA (1981), and, therefore, held that Reams’ 1975 DUI conviction could not now be counted to support the charge of felony DUI, fourth offense, brought under § 61-8-401, MCA. Accordingly, the District Court dismissed Count 1.

The State argues that the District Court erred in granting Reams’ motion to expunge his 1975 DUI conviction. The State asserts that because the expungement provision of § 61-8-714(5), MCA (1981), was not in effect at the time of Reams’ 1975 DUI conviction and was repealed in 1989, the District Court incorrectly concluded that Reams’ 1975 DUI conviction should have been expunged automatically in 1981, when the expungement provision of § 61-8-714(5), MCA (1981), became effective. Relying on Brander, the State specifically contends that because § 61-8-714(5), MCA (1981), was not in effect at the time Reams committed the offense of DUI in 1975, Reams did not have any statutory right to the subsequent expungement of the 1975 DUI conviction from his record once this amendment became effective in 1981. Therefore, the State argues that Reams’ 1975 DUI conviction may be counted for the purposes of presently charging Reams with felony DUI, fourth offense.

Furthermore, the State argues that merely reviewing the plain meaning of the words contained within § 61-8-714(5), MCA (1981), does not resolve the issue of whether this statute is applicable to pre-1981 DUI convictions. Instead, relying on Neel v. First Federal Sav. and Loan Assoc. (1984), 207 Mont. 376, 675 P.2d 96, the State argues that if § 61-8-714(5), MCA (1981), is applied to pre-1981 DUI convictions it would have a retroactive effect because this amendment imposed a new duty of expungement upon the State. Consequently, the State maintains that under iVeeZ, this retroactive application may only be validated by a legislative intent for the statute to apply in such a manner. However, the State asserts that such legislative intent does not exist here. Rather, the State contends that this Court’s rationale in Brander suggests that § 61-8-714(5), MCA (1981), created a vested substantive right with a corresponding duty on the part of the State, and, therefore, should only be applied prospectively. Consequently, the State argues that because Reams’ 1975 DUI conviction occurred before § 61-8-714(5), MCA (1981), became effective, Reams is not entitled to have his 1975 DUI conviction expunged from his record, and, therefore, Reams’ 1975 DUI conviction may be counted to support the present felony DUI charge against him.

In fact, the State argues that State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, is factually similar, and, therefore, provides guidance here. The State acknowledges that in Lorash the expungement provision of § 46-18-204, MCA (1987), required a defendant to affirmatively request expungement, whereas the expungement provision of § 61-8-714(5), MCA (1981), at issue here, was self-executing. However, the State argues that our decision in Lorash did not turn upon this distinction, but rather turned upon the unavailability of the expungement procedure because the statute was repealed before the defendant’s prior conviction was considered for sentencing purposes. Consequently, the State asserts that here, like in Lorash, because the expungement provision of § 61-8-714(5), MCA (1981), was repealed in 1989, Reams’ 1975 DUI conviction is still available to the District Court, as confidential criminal justice information, to support the present charge of felony DUI, fourth offense.

Finally, the State argues that § 61-8-714(5), MCA (1981), was not intended to apply to local judicial or law enforcement records. The State asserts that § 61-8-714(5), MCA (1981), did not explicitly provide for dismissal of the underlying charge and the legislative history concerning the repeal of this expungement provision only referenced a defendant’s driving record rather than judicial or law enforcement records.

Based upon the foregoing, the State argues that the District Court erred in concluding that Reams’ 1975 DUI conviction should have been expunged in 1981 when § 61-8-714(5), MCA (1981), became effective. Accordingly, the State asserts that the District Court’s August 30, 1996 Order expunging Reams’ 1975 DUI conviction and dismissing the charge of felony DUI, fourth offense, should be reversed.

Reams responds that the State’s attempt to frame this issue in terms of a retroactive application of the law by analyzing whether the statute involves procedural or substantive rights improperly complicates the issue. Rather, Reams asserts that in determining whether the language of § 61-8-714(5), MCA(1981), applies to DUI convictions prior to 1981, this Court should simply look to the plain language of the statute which requires satisfaction of only two elements before a prior offense “shall be expunged.” First, a DUI conviction must exist. Second, a period of more than five years must have elapsed without a subsequent DUI conviction. Reams contends that when § 61-8-714(5), MCA (1981), was enacted he had satisfied both elements of the expungement provision: (1) he had a 1975 DUI conviction and (2) more than five years had elapsed before he received an additional DUI conviction, and, therefore, the mandatory language of § 61-8-714(5), MCA (1981), required the expungement of his 1975 DUI conviction. Consequently, Reams argues that the District Court correctly dismissed the felony DUI charge against him based on the court’s determination that his 1975 DUI conviction should have been expunged in 1981 pursuant to § 61-8-714(5), MCA (1981).

We agree with Reams’ analysis. We made no distinction in Brander as to whether § 61-8-714(5), MCA(1981), created a substantive or procedural right. Rather, our decision in Brander and our decision here are better explained by the rationale referred to in State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, and discussed in more detail in State v. Wilson (1996), 279 Mont. 34,926 P.2d 712. That is, as to statutes, other than those creating a criminal offense, the criminal defendant is entitled to the benefit of the law in effect when the offense is committed, except to the extent that a later repeal or amendment of the law ameliorates or mitigates a sentence or punishment, and, in that case, the criminal defendant is entitled to the benefit of the later law, absent a clear expression of legislative intent through a savings clause that the former law controls. See Wilson, 926 P.2d at 714-16. See also Fitzpatrick, 606 P.2d at 1359.

Furthermore, to give effect to the applicable statute, we must interpret that statute according to the plain and ordinary meaning of the language used therein. Brander, 930 P.2d at 36 (citing Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631).

Section 61-8-714(5), MCA (1981), provided in part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from the defendant’s record. [Emphasis added.]

Based upon the plain language of § 61-8-714(5), MCA (1981), we agree with Reams that the expungement provision only required the satisfaction of two elements: (1) a DUI conviction must exist and (2) a period of more than five years must have elapsed without a subsequent DUI conviction. The expungement provision of § 61-8-714(5), MCA, was in effect from October 1, 1981, until October 1, 1989, when it was repealed and replaced with instructions to classify prior DUI convictions as confidential criminal justice information. We explained the significance of this change in Brander, stating that “[u]nlike expunged records which are completely destroyed, classification of records as confidential criminal justice information does not prevent a court from reviewing those records, but merely restricts the dissemination of those records to criminal justice agencies and others authorized by law.” Brander, 930 P.2d at 36 (citations omitted). To put it differently, the addition of the expungement provision to § 61-8-714(5), MCA, on October 1,1981, was ameliorative in nature because it provided previous DUI offenders a reprieve from sentence enhancements authorized by § 61-8-714, MCA, by mandating the destruction of any record pertaining to an eligible DUI conviction. On the other hand, the repeal of the expungement provision from § 61-8-714(5), MCA, on October 1, 1989, was not ameliorative because it no longer provided previous DUI offenders the benefit of avoiding a sentence enhancement under § 61-8-714, MCA. Therefore, just as in Brander, the issue here concerns whether Reams is entitled to have his 1975 DUI conviction expunged pursuant to the expungement provision of § 61-8-714(5), MCA, based upon the plain language of the statute and Reams’ fulfillment of the statute’s qualifying criteria.

In Brander, we considered whether the defendant was entitled to have his 1986 DUI conviction expunged in 1991 pursuant to § 61-8-714(5), MCA (1985), despite the repeal of the expungement provision in 1989. Looking to the plain language of § 61-8-714(5), MCA (1985), we concluded that Brander had satisfied both elements of the ex-pungement provision — he had a 1986 DUI conviction and a period of more than five years elapsed before he received an additional DUI conviction. Brander, 930 P.2d at 36-37. Furthermore, in accordance with our rationale in Wilson, we explained that Brander was entitled to have his 1986 DUI conviction expunged in 1991 pursuant to § 61-8-714(5), MCA (1985), because the expungement provision was the law in effect at the time his DUI conviction was entered. Brander, 930 P.2d at 36-37. Therefore, we held that the district court erred when it considered Brander’s 1986 DUI conviction to sentence Brander under § 61-8-714(6), MCA (1995), for felony DUI, fourth offense, because this 1986 DUI conviction effectively did not exist. Brander, 930 P.2d at 36-37.

Based on our rationale discussed in Wilson and employed in Brander, if a defendant received a DUI conviction during the period between October 1,1984, and October 1,1989, and did not receive an additional DUI conviction within the next five years, he was entitled to have the prior DUI conviction expunged from his record pursuant to the expungement provision of § 61-8-714(5), MCA, the law in effect at the time he was convicted. While the expungement provision would have been repealed before the DUI conviction became eligible for expungement, a defendant would still be entitled to the benefit of the expungement provision because its repeal was not ameliorative in nature. Moreover, it is obvious that if a defendant received a DUI conviction during the period between October 1,1981, and October 1, 1984, and did not receive an additional DUI conviction within the next five years, he was also entitled to have the prior DUI conviction expunged from his record pursuant to the expungement provision of § 61-8-714(5), MCA, as this was the law in effect both at the time of the conviction and at the time the prior DUI conviction became eligible for expungement.

However, to now limit the effect of the expungement provision to only those “prior” DUI convictions entered during the time the ex-pungement provision of § 61-8-714(5), MCA, was in effect, October 1, 1981 until October 1,1989, as the State argues, not only goes against the rationale articulated in Fitzpatrick and Wilson and underlying our decision in Brander, but also offends the basic principle of statutory construction that we interpret a statute according to the plain and ordinary meaning of the language used.

The expungement provision of § 61-8-714(5), MCA(1981), provided previous DUI offenders a reprieve from the sentence enhancements authorized by § 61-8-714, MCA (1981), and, therefore, was ameliorative in nature. Additionally, § 61-8-714(5), MCA (1981), contained no savings clause restricting the operation of its expungement requirements to DUI convictions entered on or after its effective date. Furthermore, the plain language of the expungement provision mandated the expungement of a prior DUI conviction from a defendant’s record if the defendant had not received an additional DUI conviction within five years after entry of the prior DUI conviction.

Therefore, again based on our rationale discussed in Wilson, we hold that if a defendant’s record contained a DUI conviction entered before October 1, 1981, and the defendant did not receive another DUI conviction within the next five years, he also was entitled to have the prior DUI conviction expunged from his record pursuant to § 61-8-714(5), MCA (1981). See Wilson, 926 R2d at 714-16. See also Fitzpatrick, 606 P.2d at 1359. Here, Reams’ record indicates that after he received a DUI conviction in July 1975, he did not receive another DUI conviction until March 1990. Looking to the plain language of § 61-8-714(5), MCA (1981), we conclude that both elements of the expungement provision were satisfied because Reams was convicted of DUI in 1975 and because a period of more than five years elapsed before he received a subsequent DUI conviction. Although Reams’ 1975 DUI conviction was entered before the expungement provision of § 61-8-714(5), MCA (1981), became effective on October 1,1981, he was still entitled to the benefits of this provision. See Wilson, 926 P.2d at 714-16. See also Fitzpatrick, 606 P.2d at 1359.

As to the State’s arguments that Reams’ 1975 DUI conviction should not have been expunged pursuant to § 61-8-714(5), MCA (1981), based on our decision in Lor ash and because the expungement provision of § 61-8-714(5), MCA, did not apply to local judicial or law enforcement records, we have rejected these same arguments in State v. Bowles (1997), [284 Mont. 490], 947 P.2d 52.

Based on the foregoing, we hold that the District Court properly concluded that Reams’ 1975 DUI conviction should have been expunged from his record in 1981 pursuant to § 61-8-714(5), MCA (1981), and, therefore, this conviction could not be counted to support the present charge of felony DUI, fourth offense. Accordingly, we affirm the District Court’s August 30,1996 Order expunging the 1975 DUI conviction from Reams’ record and dismissing the charge of felony DUI, fourth offense.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, HUNT, REGNIER, TRIEWEILER and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EUGENE A. BECKMAN, Defendant and Appellant.
    No. 96-644.
    Submitted on Briefs March 20, 1997.
    Decided September 22, 1997.
    54 St.Rep. 977. 944 P.2d 756.
    284 Mont. 459.

      For Appellant: John S. Forsythe, Forsyth.
    For Respondent: Lee Kerr, Rosebud County Attorney, Forsyth; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Sixteenth Judicial District Court, Rosebud County. On June 5, 1996, the District Court entered a memorandum and order denying Defendant Beckman’s motion to dismiss a charge of felony DUI, fourth offense. From this memorandum and order, Defendant Beckman appeals. We reverse and remand.

We restate the following issues raised on appeal:

1. Did the District Court err in denying Defendant Beckman’s motion to dismiss the charge of felony DUI, fourth offense?

2. Should this Court review Defendant Beckman’s claim, made for the first time on appeal, that the State may not use his prior DUI convictions to enhance the punishment for his present DUI conviction because his prior DUI convictions were obtained without the benefit of assistance of counsel as guaranteed by Article II, Section 24 of the Montana Constitution?

FACTUAL AND PROCEDURAL BACKGROUND

On March 17,1996, Defendant Beckman (Beckman) was arrested for driving while under the influence of alcohol (DUI). Beckman had previously been convicted of DUI in 1983, 1987 and 1988. Consequently, on April 8,1996, an Information was filed charging Beckman with felony DUI, fourth offense, as specified by § 61-8-401(l)(a), MCA (1995), and § 61-8-714(4), MCA (1995). On April 10, 1996, Beckman filed a motion to dismiss the charge of felony DUI, fourth offense, raising ex post facto and double jeopardy claims. The State filed a reply in opposition on April 16, 1996. On April 22, 1996, Beckman entered a plea of not guilty. On May 13, 1996, the District Court conducted a hearing. While no transcript of this hearing was filed on appeal, a minute entry indicates that Beckman’s motion to dismiss was argued and the possibility of Beckman entering a plea of guilty, reserving his right to appeal an adverse ruling on the motion, was discussed. On June 5, 1996, the District Court entered a memorandum and order denying Beckman’s motion to dismiss.

On June 24, 1996, pursuant to a plea agreement, Beckman changed his plea to guilty. On August 26, 1996, the District Court entered an order sentencing Beckman to one year in the county jail, with the last six months suspended and the first six months to be served under home arrest with a work release program, subject to certain conditions and supervised by the Department of Corrections. However, the District Court stayed execution of this sentence pending appeal. Beckman appeals from the District Court’s memorandum and order denying his motion to dismiss. We reverse and remand for further proceedings consistent with this Opinion.

STANDARD OF REVIEW

A district court’s grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 930 P.2d 31, 33 (citation omitted). Because the parties have raised no factual disputes, we must only determine whether the District Court correctly interpreted the law. As to Issue 1, based on our decision in Brander, we hold that the District Court correctly concluded that Beckman was not subject to an ex post facto application of §§ 61-8-714(4) and (6), MCA (1995). However, again based on our decision in Brander, we hold that the District Court incorrectly concluded that Beckman’s 1988 DUI conviction could be counted to support the present charge of felony DUI, fourth offense, and, therefore, the District Court erred in denying Beckman’s motion to dismiss. As to Issue 2, because Beckman raises this issue for the first time on appeal, we will not address it.

DISCUSSION

1. Did the District Court err in denying Beckman’s motion to dismiss the charge of felony DUI, fourth offense?

Section 61-8-714(5), MCA (1981), provided in part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from the defendant’s record. [Emphasis added.]

In 1989 the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant’s record would no longer be expunged, but rather the records and data relating to the prior DUI conviction would become confidential criminal justice information. Brander, 930 P.2d at 33-34 (citing § 2, Ch. 476, L. 1989).

In 1995, the Montana Legislature amended § 61-8-714, MCA, to include a felony sanction for repetitive DUI offenders, which provides in pertinent part:

(4) On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. [Emphasis added.]

In conjunction with this new subsection, the Legislature amended § 61-8-714(6), MCA, (formerly subsection (5)), to provide in pertinent part:

(6) An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender’s fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown. [First emphasis indicates newly added langhage; second emphasis added.]

In its June 5, 1996 memorandum and order, the District Court rejected Beckman’s double jeopardy claim, concluding it was without merit because Beckman had not supported it with any argument in his brief or during oral argument. The District Court next determined that § 61-8-714, MCA, never required expungement of prior DUI convictions, but rather only provided for retention of DUI conviction records as confidential criminal justice information, and, therefore, prior DUI convictions could be used by courts and law enforcement agencies. Relying on State v. Maldonado (1978), 176 Mont. 322, 578 P.2d 296, the District Court concluded that Beckman was not subject to an ex post facto application of §§ 61-8-714(4) and (6), MCA (1995), because Beckman was not being punished again for his prior DUI offenses, but rather he was being punished for an offense committed almost six months after the effective date of §§ 61-8-714(4) and (6), MCA (1995), and, therefore, was facing “stiffened punishment for an aggravated offense because of his repetition.” Accordingly, the District Court denied Beckman’s motion to dismiss.

Beckman argues that the application of §§ 61-8-714(4) and (6), MCA (1995), violates his right to be free from the application of ex post facto legislation, as guaranteed by Article I, Section 10 of the United States Constitution and Article II, Section 31 of the Montana Constitution. Specifically, Beckman contends that the application of §§ 61-8-714(4) and (6), MCA (1995), violates the two-part test used to determine whether a law is ex post facto, which we adopted in State v. Leistiko (1992), 256 Mont. 32, 844 P.2d 97. First, Beckman asserts that §§ 61-8-714(4) and (6), MCA (1995), are retrospective because these statutory sections alter the legal consequences of his DUI offenses committed before the statute’s effective date. Second, Beck-man asserts that §§ 61-8-714(4) and (6), MCA (1995), are more onerous than prior law because Beckman could not have foreseen that his DUI convictions in the 1980’s would be used against him a decade later. Beckman distinguishes the present case from Gryger v. Burke (1948), 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed.2d 1683, and Maldonado, 176 Mont. 322, 578 P.2d 296, explaining that, here, to support the present charge offelony DUI, fourth offense, §§ 61-8-714(4) and (6), MCA (1995), effectively placed back upon his record previously removed DUI convictions.

In his opening brief, Beckman argues that the “record use” of his prior DUI convictions was eliminated by operation of law because under § 61-8-714(5), MCA (1993), his DUI convictions became confidential criminal justice information. Therefore, Beckman asserts that his prior DUI convictions are unavailable for the District Court’s present consideration. However, in his reply brief, in light of our decision in Brander, Beckman changes the basis of his argument concerning the unavailability of his prior DUI convictions to now explain that these convictions are unavailable for the District Court’s present consideration because they should have been expunged from his record pursuant to the expungement provision of § 61-8-714(5), MCA, the law in effect at the time of his prior DUI convictions.

Specifically, Beckman contends that the expungement provision of § 61-8-714(5), MCA, only required that a defendant receive no additional DUI conviction for “a period of five years after a prior conviction,” without limitation as to the commencement of the five-year period. Because any five-year period would qualify a prior DUI conviction for expungement if the DUI was committed while the expungement statute was in effect, Beckman asserts that not only must his 1988 DUI conviction be expunged, as the State concedes, but also that his first two DUI convictions must be expunged as well. That is, Beckman asserts that his 1988 DUI conviction clearly must be expunged because more than five years elapsed before he committed the current DUI offense. Similarly, Beckman contends that because his 1988 conviction now no longer exists, his first two DUI convictions should also be expunged because as each DUI conviction is expunged, no subsequent DUI conviction exists on his record from the time of the prior DUI conviction to the present offense. Accordingly, Beckman argues that this case should be remanded to the District Court with instructions to dismiss the charge of felony DUI, fourth offense, and to remand this case to Justice Court with a charge of first offense DUI.

The State responds that because our decision in Brander is dis-positive, we should remand this case to the District Court for reconsideration of its decision in light of Brander. The State asserts that, in Brander, we rejected similar ex post facto arguments, holding that § 61-8-714, MCA (1995), did not violate the ex post facto clauses of the federal or Montana constitutions. Therefore, the State argues that the District Court properly rejected Beckman’s ex post facto claim. However, the State points out that, in Brander, we nonetheless held that the defendant was not properly sentenced under § 61-8-714, MCA (1995), because the defendant’s 1986 DUI conviction should have been expunged in 1991 pursuant to § 61-8-714(5), MCA (1985), and, therefore, the district court should not have considered this conviction when it sentenced the defendant for his 1995 DUI conviction. Consequently, the State concedes that based on our rationale in Brander, Beckman’s 1988 DUI conviction should be expunged from Beckman’s record.

However, having made this concession concerning Beckman’s 1988 DUI conviction, the State, relying on Infanger v. State (Mont. 1997), 934 P.2d 1040, asserts that Beckman’s first two DUI convictions should not be expunged from his record. In making this assertion, the State points out that while the District Court determined that Beck-man had previously been convicted of DUI in 1983, 1987 and 1988, Beckman’s certified driving record, filed after the District Court issued its June 5, 1996 memorandum and order, indicated that Beckman’s prior DUI convictions occurred in July 1987, October 1987 and October 1988. The State maintains that this discrepancy concerning the correct date of Beckman’s first DUI conviction makes no difference under our analysis in Brander because less than five years elapsed after each DUI conviction before Beckman received another, and, therefore, his first two DUI convictions were not eligible for expungement.

Finally, the State asserts that in Brander we did not consider the effect of our decision in State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, and did not expressly consider whether the expungement provision of § 61-8-714(5), MCA(1981), created a substantive right or a procedural remedy. The State suggests that this case, along with similar cases currently on appeal, provides this Court with the opportunity to reconsider our decision in Brander and the nature and scope of the repealed expungement provision of § 61-8-714(5), MCA. The State argues, in the case at bar, that expungement is a procedural remedy, derived wholly from the statute authorizing it and may be extinguished by repeal of the statute. However, we note that the State retracted this argument in State v. Bowles (1997) [284 Mont. 490], 947 P.2d 52, and argued instead that in Brander we implicitly concluded that the expungement provision of § 61-8-714(5), MCA (1981), created a vested substantive right that may only be applied prospectively to “prior” DUI convictions which occurred after October 1,1981, the effective date of § 61-8-714(5), MCA (1981).

As to Beckman’s ex post facto arguments, the State is correct that we rejected these same arguments in Brander. See Brander, 930 P.2d at 33-35. Nonetheless, as the State concedes, under our analysis in Brander, because more than five years elapsed after Beckman’s 1988 DUI conviction before he received a subsequent DUI conviction, his 1988 DUI conviction should have been expunged in 1993, pursuant to § 61-8-714(5), MCA (1987). See Brander, 930 P.2d at 35-37. However, as the State argues, Beckman’s first two DUI convictions (whether the first conviction was entered in 1983 or in July 1987) were never eligible for expungement pursuant to § 61-8-714(5), MCA, because at no time did more than five years elapse before Beckman received an additional DUI conviction. See Brander, 930 P.2d at 35-37.

Consequently, we hold that the District Court correctly concluded that Beckman was not subject to an ex post facto application of §§ 61-8-714(4) and (6), MCA (1995). However, again based on our decision in Brander, we hold that the District Court incorrectly concluded that Beckman’s 1988 DUI conviction could be counted to support the present charge of felony DUI, fourth offense, and, therefore, the District Court erred in denying Beckman’s motion to dismiss. Accordingly, we remand this issue for entry of an order dismissing the charge of felony DUI, fourth offense.

Finally, as to the State’s suggestion that we reconsider our decisions in Lorash and in Brander, we have already done so. In State v. Bowles)(1997) [284 Mont. 490], 947 P.2d 52, we distinguished Lorash based on the differences in the expungement provision requirements of § 46-18-204, MCA, the statute at issue in Lorash, and of § 61-8-714(5), MCA (1981). Also, in State v. Reams (1997), [284 Mont. 448], 945 P.2d 52, we addressed the nature and scope of the repealed expungement provision of § 61-8-714(5), MCA (1981), explaining that we made no distinction in Brander as to whether this provision created a substantive or procedural right, but rather considered our decision in Brander better explained by the rationale referred to in State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, and discussed in more detail in State v. Wilson (1996), 279 Mont. 34,926 P.2d 712. Employing this same rationale in Reams, we concluded that any DUI conviction entered before October 1,1989, the date the expungement provision was repealed, was automatically eligible for expungement if the elements of the expungement provision of § 61-8-714(5), MCA, were satisfied.

2. Should this Court review Beckman’s claim, made for the first time on appeal, that the State may not use his prior DUI convictions to enhance the punishment for his present DUI conviction because his prior DUI convictions were obtained without the benefit of assistance of counsel as guaranteed by Article II, Section 24 of the Montana Constitution?

Beckman challenges the validity of his three prior misdemeanor DUI convictions used to enhance the punishment for his present felony DUI conviction, asserting that these convictions were obtained without assistance of counsel. Beckman argues that the State failed to demonstrate that he was represented by counsel or that he voluntarily waived his right to counsel during the prior justice court proceedings which resulted in these three prior misdemeanor DUI convictions. Therefore, Beckman contends that the State may not use these prior DUI convictions to enhance the punishment for his current conviction. Beckman argues that, although he has raised this issue for the first time on appeal, we should establish, and apply retroactively to his case, a rule that uncounseled misdemeanors may not be used under an enhanced penalty statute to raise a misdemeanor to a felony. The State responds that we should not review this issue because Beckman raises it for the first time on appeal. We agree.

As the State points out, Beckman did not present this argument to the District Court in his motion to dismiss and nothing else indicates that Beckman made this argument to the District Court— the State’s brief opposing Beckman’s motion to dismiss does not address this issue and neither does the District Court’s June 5,1996 memorandum and order denying Beckman’s motion to dismiss. Additionally, the record does not reflect that a hearing was held on this issue nor does the record reflect the filing of any documentary evidence concerning this issue. Beckman’s failure to address this issue as a basis for his motion to dismiss made to the District Court bars him from raising this issue on appeal. See State v. Williams (1995), 273 Mont. 459, 463, 904 P.2d 1019, 1021. Accordingly, we decline to address this argument because it is raised for the first time on appeal.

Reversed and remanded for further proceedings consistent with this Opinion.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, HUNT, REGNIER, TRIEWEILER and GRAY concur.