text:
    MONTANA EARTH RESOURCES LTD. PARTNERSHIP Plaintiff and Appellant, v. NORTH BLAINE ESTATES, INC., a Montana Corporation; NORTH BLAINE ESTATES HOMEOWNERS ASSOCIATION, INC., a Montana Corporation; FLATHEAD COUNTY TREASURER; et al., Defendants and Respondents.
    No. 97-517.
    Submitted on Briefs February 19,1998.
    Decided October 20, 1998.
    1998 MT 254.
    55 St.Rep. 1047.
    291 Mont. 216.
    967 P.2d 376.

      For Appellant: James E. Vidal, Kaufman, Vidal & Hileman, Kalispell; Jacqueline T. Lenmark, Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
    For Respondent: John B. Dudis, Debra D. Parker, Crowley, Haughey, Hanson, Toole & Dietrich, Kalispell; Jonathan B. Smith, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶ 1 Plaintiff appeals from a judgment issued by the Eleventh Judicial District Court, Flathead County, voiding plaintiff’s tax deed and quieting title to property in North Blaine Estates Homeowners Association, Inc. We affirm in part and vacate in part.

ISSUES

¶2 1. Did the District Court err in concluding that it had jurisdiction to determine the validity of a tax deed under § 15-18-412 (5), (6), and (7), MCA?

¶3 2. Did the District Court err in concluding that plaintiff’s tax deed was void for failure to provide adequate notice?

¶4 3. Does the Homeowners’ Association have standing to challenge plaintiff’s tax deed under §§ 15-18-212(l)(b) and 15-18-111, MCA?

¶5 4. Did the District Court err in refusing to enter plaintiff’s proposed default judgment against North Blaine Estates, Inc.?

¶6 5. Did the District Court err in concluding that Montana Earth’s tax deed is subj ect to the covenants and easements created in the Declaration of Covenants, Conditions and Restrictions of North Blaine Estates?

BACKGROUND

¶7 North Blaine Estates, Inc. (hereinafter NBE), was the owner and developer of certain real property located in Flathead County, Montana, known as the North Blaine Estates Subdivision. The subdivision includes three separate tracts described as “Homeowners’ Park/Common Area” on the plat approved by and recorded with Flathead County. The homeowners’ parks are used by the members of the subdivision as a recreation and greenbelt area and for access to Lake Blaine. In addition, the largest of the three tracts is an important component in the community’s water distribution and sewer collection systems.

¶8 The Board of Commissioners for Flathead County approved the proposed development of North Blaine Estates upon condition that NBE establish a homeowners’ association which would take title to the homeowners’ parks and maintain them as parks or playground areas. The Board also required NBE to specify net and gross acreage on each of the residential lots in the subdivision so that the taxes on the park areas could be allocated proportionately among the individual lots.

¶9 Each of the residential lots inside N orth Blaine Estates is subj ect to the terms and conditions of the Declaration of Covenants, Conditions, and Restrictions filed by NBE with the Flathead County recorder’s office. This Declaration sets forth a number of restrictive covenants on the use of land within the subdivision and gives to each individual lot owner an easement in and to the homeowners’ parks; these easements are appurtenant to the lots and are incorporated by reference in the warranty deeds to the lots executed by NBE. The Declaration requires any changes to the covenants affecting the homeowners’ parks to be approved by at least 75% of the lot owners in the estate and the Board of Commissioners of Flathead County.

¶10 Pursuant to its agreement with the county, NBE incorporated the North Blaine Estates Homeowners’ Association, Inc. (hereinafter the Homeowners’ Association or the Association), and set aside portions of the subdivision property as homeowners’ parks. However, while it was the intention of NBE to ultimately deed the park areas over to the Association at some point, this intention was never fulfilled.

¶ 11 The property taxes on the homeowners’ parks were paid for the four years following commencement of the development but were not paid for the year 1990, and on December 1,1990, the property became subject to a tax lien in favor of Flathead County. The county held a tax sale on July 15,1991, and was deemed to be the purchaser of the property. The taxes on the property remained unpaid for the years 1991, 1992,1993 and 1994.

¶12 On December 12,1988, the Montana Secretary of State’s office notified the Homeowners’ Association that its corporate status had been involuntarily dissolved and that it was no longer authorized to carry on business in Montana. A similar notice was sent to NBE on December 9,1993, stating that NBE’s corporate status had also been involuntarily dissolved and it could no longer carry on business in Montana.

¶13 On July 15,1994, the county began the process of obtaining a tax deed to the park property but abandoned this effort on July 21, 1994, when it assigned its interest in the property to the plaintiff, Montana Earth Resources Ltd. Partnership (hereinafter Montana Earth). On October 11,1994, Montana Earth began anew the process of obtaining a tax deed to the property. The notice of application for the deed identified the owner of the property as “North Blaine Estates” instead of “North Blaine Estates, Inc.,” and used “Sun Life Plaza, Calgary, Alberta T2P 3N3 CN 00000” instead of the company’s record address, “Sun Life Plaza, Suite 340,140 4th Ave. S.W., Calgary, Alberta T2P 3N3 CN 00000.” The description of the subject property was given as “26-29-20 North Blaine Estates” rather than the full legal description, which is “North Blaine Estates Homeowners’ Park, according to the map or plat thereof on file and of record in the Clerk and Recorder’s Office, Flathead County, Montana.” The October 11, 1994 notice was not sent to the North Blaine Estates Homeowners’ Association or any of the individual lot owners in the North Blaine Estates.

¶14 On January 11,1995, at the direction of the Flathead County recorder’s office, Montana Earth prepared a second notice to correct the defect in the prior notice with regard to the description of the subject property; however, the description of the property contained in the second notice still described the property only as “26-29-20 North Blaine Estates Homeowners’ Park 3.38” rather than by its full legal description. The January 11,1995 notice also contained the same improper proper name and address for NBE that the October 11,1994 notice had contained.

¶ 15 Unlike the first notice, the January 11,1995 notice was sent to the Homeowners’ Association, but Montana Earth used an incomplete name and address for this party as well. The notice was mailed to “North Blaine Estates Homeowners Assoc., General Delivery, Kalispell, MT 59901,” instead of to “North Blaine Estates Homeowners’ Association, Inc., 720 North Second Street East, Kalispell, MT 59901.” The individual owners of the subdivision lots in North Blaine Estates were not sent a copy of the January 11, 1995 notice, and none of those owners have ever been made party to this litigation.

¶16 On February 19,1997, articles of incorporation for the North Blaine Estates Homeowners’ Association were filed with the office of the Secretary of State, and a new corporate charter for the Homeowners’ Association was granted. It is this new corporate entity which is named as a party defendant in this action.

STANDARD OF REVIEW

¶17 An action to quiet title is a proceeding in equity. Hart v. Barron (1949), 122 Mont. 350, 362, 204 P.2d 797, 804. In equity cases, we apply the standard of review set forth in § 3-2-204(5), MCA, which requires this Court to determine all of the issues of the case and to do complete justice. Quigley v. Acker, 1998 MT 72, ¶ 19, [288 Mont. 190, ¶ 19], 955 P.2d 1377, ¶ 19.

ISSUE ONE

¶ 18 Did the District Court err in concluding that it had jurisdiction to determine the validity of a tax deed under § 15-18-412 (5), (6), and (7), MCA?

¶19 In its Findings of Fact, Conclusions of Law and Judgment, the District Court concluded that it had jurisdiction under Title 15 Chapter 18 of the Montana Code Annotated. Montana Earth disagrees with this conclusion and contends that jurisdiction is derived from Title 70 Chapter 28, because that title was the source of jurisdiction invoked in the amended complaint. Montana Earth stresses the importance of finding jurisdiction under Title 70 rather than Title 15, because it believes this Court disfavors actions brought under Title 15. The Homeowners’ Association contends that the District Court’s conclusion is not in error under the theory that a plain reading of Title 15 makes manifest the court’s jurisdiction under the provisions of that title.

¶20 Although the parties disagree as to the source of the District Court’s authority, neither party disputes that the District Court had jurisdiction to determine this case, and neither party has presented any argument suggesting what practical or legal purpose would be served by a ruling on this issue either way. Under Rule 2(a), M.R.App.R, our review of issues in a civil case is limited to those which involve the merits of the controversy or necessarily affect the outcome of the judgment. Because resolution of this issue will ultimately not impact the outcome of this case, we decline to address it.

ISSUE TWO

¶21 Did the District Court err in concluding that Montana Earth’s tax deed was void for failure to provide adequate notice?

¶22 Section 15-18-212(l)(b), MCA, requires that an applicant for a tax deed “notify all persons considered interested parties in the property, if any, that a tax deed will be issued to the purchaser or assignee unless the property tax lien is redeemed prior to the expiration date of the redemption period.” Because a property owner’s fundamental interests are at stake, punctilious compliance with all procedural requirements is demanded. Isern v. Summerfield, 1998 MT 45, ¶ 10, 281 Mont. 461, ¶ 10, 956 P.2d 28, ¶ 10. Every material and essential step required for issuance of a tax deed must be strictly followed. Stanford v. Rosebud County (1991), 251 Mont. 128, 134, 822 P.2d 1074, 1077-78. The giving of notice to the owner of the property by the tax deed applicant is a critical element of the process of obtaining a tax deed; the failure to provide adequate notice deprives the county of jurisdiction to issue a deed and renders any such deed void. Isern, 28; Moran v. Robbin (1993), 261 Mont. 478, 482-83, 863 P.2d 395, 398.

¶23 Montana Earth appeals the conclusion of the District Court that, due to a series of procedural defects in its application for a tax deed, the tax deed issued to Montana Earth by Flathead County is void. The specific defects recounted by the District Court in its Findings of Fact, Conclusions of Law and Judgment were that the notice did not contain the full legal name of the property owner; that the notice was not sent to the owner’s address of record; that the description of the property provided in the notice for issuance of the tax deed was not the proper legal description of the property; and that the description of the subject property differed in each of five different instruments issued in connection with the tax lien.

¶24 We agree with the District Court that there are fatal defects in the notices provided by Montana Earth and that its deed is void as a matter of law. We do not agree, however, with all of the reasons relied on by the District Court or with its characterization of the nature of those defects. In particular, our review of the record and a number of relevant statutory provisions reveals that neither of the parties to whom notice was sent hold any ownership interest in the subject property, and that no notice of any kind was attempted for the true owners of these tracts.

¶25 Under the provisions of the Montana Subdivision and Platting Act of 1973, codified at §§ 76-3-101, MCA, et seq., the North Blaine Estates Homeowners’ Association, Inc., became the legal owners of the homeowners’ parks on November 5,1985, when the county issued its final approval of the subdivision plat filed by NBE. Section 76-3-307, MCA, reads: “Every donation or grant to the public or to any person, society, or corporation marked or noted on a plat is to be considered a grant to the donee.” The Certificate Waiving Parkland Dedication and Cash in Lieu of Homeowners’ Park included on the plat of North Blaine Estates filed with Flathead County reads as follows:

In as much as this subdivision of NORTH BLAINE ESTATES is to have a property owner’s association and that the subdivider will deed the areas as denoted on this plat as “HOMEOWNERS PARK” to the association to be held in [perpetuity] for use as parks or playgrounds, and that the area of land to be deeded to the association [is] greater than the amount that would otherwise have been dedicated to the public, parkland requirements are hereby waived as per Chapter 3, design standards, 3.19 Parkland paragraph G.(c) of the Flathead County Subdivision Regulations.

Not only was the dedication of the common areas approved and noted on the plat filed with the county, but dedication of the homeowners’ parks was made a condition of final approval of development of the subdivision by the county. By operation of law, then, both legal and equitable title became vested in the Homeowners’ Association as of the time the waiver by the Board of County Commissioners was filed with the recorder’s office on the plat for North Blaine Estates.

¶26 As the legal owner of the subject property, the Homeowner’s Association would have been entitled to notice of Montana Earth’s application for a tax deed under § 15-18-212, MCA. However, because that corporation as it existed in 1985 was no longer viable as of the time Montana Earth was seeking to obtain its tax deed, we must look to the provisions of the Montana Business Corporation Act as codified under Title 35 of the Montana Code Annotated to determine what happened to the assets of the corporation when the Homeowners’ Association was involuntarily dissolved by the State of Montana in 1988.

¶27 Section 35-6-104(5), MCA, states: “In the case of involuntary dissolution, all the property and assets of the dissolved corporation must be held in trust by the directors of the corporation ....” The names and addresses of the directors of the Homeowners’Association who became trustees of the homeowners’ parks in 1988 are listed in the Association’s Articles of Incorporation on file with the Secretary of State’s office as William O. Tanner, 11220 30th Street S.W., Calgary, Alberta; B. Kent Remington, 150-7220 Fisher St. S.E., Calgary, Alberta; and Dennis Carver, 720 Second Street East, Kalispell, Montana.

¶28 Neither the October 11,1994 nor the January 11,1995 notice prepared by Montana Earth included the names and addresses of the directors/trustees of the defunct Homeowners’ Association which owns the property. Both notices are therefore wholly defective. Because the notice requirements for the issuance of a tax deed are jurisdictional in nature, the tax deed issued to Montana Earth is void ab initio for lack of jurisdiction to issue the tax deed on the part of Flathead County.

¶29 Because we agree with the conclusion of the District Court but disagree as to the rationale behind its ruling, we affirm the decision of the District Court that Montana Earth’s tax deed is void under the “right result, wrong reason” doctrine of appellate review. Bowen v. McDonald (1996), 276 Mont. 193, 200, 916 P.2d 201, 206.

¶30 The relief afforded to the Homeowners’ Association in the judgment below provides 60 days from the date of the judgment in which to redeem the property for the amount of Montana Earth’s tax lien, upon payment of which the property will immediately vest in the Homeowners’ Association. Two things are apparent from the nature of the relief granted by the District Court. The first is that the Homeowners’ Association possesses a redemption right under § 15-18-111, MCA, and the second is that this right is not based on the Association’s ownership of the property, but on some other “interest in the property” not qualified in the decision of the District Court.

¶31 Our review of the record and the relevant statutory provisions reveals no legally recognizable interest in this property on the part of the entity which was incorporated as the North Blaine Estates Homeowners’ Association, Inc., in 1997. Although this entity bears the same name and ostensibly fulfills the same corporate purpose as the prior corporate entity, its incorporation was not effected until nine years after the dissolution of its predecessor and is therefore too far removed in time from the existence of the prior Association for the two entities to maintain a continuity of identity. See § 35-6-202, MCA (the restoration of corporate rights relates back to the date of dissolution and the restored corporation is deemed to have been in existence from the date of incorporation), and § 35-6-201(5), MCA (“The secretary of state may not order a reinstatement if 5 years have elapsed since the dissolution.”).

¶32 Since the Homeowners’ Association which was incorporated in 1997 and named as a defendant in this action possesses no legal claim to the property at issue, it is not entitled to redeem that property under § 15-18-111, MCA. Bowen, 276 Mont. at 197-98, 915 P.2d at 204. Therefore, to the extent that the judgment of the District Court grants the 1997 Homeowners’ Association the right to redeem the homeowners’ parks and vests title to this property in that entity upon payment of the amount of the lien, that judgment is vacated.

ISSUE THREE

¶33 Does the Homeowners’ Association have standing to challenge the validity of the tax deed under §§ 15-18-212(l)(b) and 15-18-111(3), MICA?

¶34 'It is the position of Montana Earth that the Homeowners’ Association has no standing in this case to challenge the validity of its tax deed, because the Association holds no legally recognizable interest

in the subject property. In support of this argument, Montana Earth relies on our holding in Bowen v. McDonald (1996), 276 Mont. 193, 915 P.2d 201, and Stewart v. Big Horn County (1977), 175 Mont. 197, 573 P.2d 184, that a person without the statutory right to redeem property subject to a tax lien does not have standing to contest the validity of a tax deed.

¶35 We reject the argument presented by Montana Earth because it misapplies the doctrine of standing in a context where the party challenging a tax deed is not the plaintiff of a cause of action, but a defendant brought involuntarily into the action through the summons of the tax lien purchaser. The question of standing involves consideration of whether a plaintiff has asserted a legal basis upon which relief can be predicated. Romer v. Board of County Comm’rs (Colo. 1998), 956 P.2d 566, 572. Accord Bowen, 276 Mont, at 201-2, 915 P.2d at 206. “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a [sic] court and not on the issues he wishes to have adjudicated.” Flast v. Cohen (1968), 392 U.S. 83, 99, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947.

¶36 Our holding regarding the standing requirements to challenge a tax deed as set forth in Bowen and Stewart is not contrary to our holding in the case sub judice, because in bothBowen and Stewart these requirements were applied against the plaintiff in an action to set aside the deed. Bowen, 276 Mont. at 202, 915 P.2d at 207 (holding that plaintiff in a cross-claim against codefendant lacked standing to challenge codefendant’s tax deed); Stewart, 175 Mont. at 202, 573 P.2d at 187 (holding that plaintiffs suing to have tax deed declared void lacked standing to challenge tax deed). Because the Homeowners’ Association was brought into this action by Montana Earth as a party defendant, it need not demonstrate standing to sue in order to be allowed to appear and defend against the claims asserted by Montana Earth.

¶37 With regard to the remaining issues presented on appeal, our holding that the tax deed issued to Montana Earth is utterly void for all purposes and against all persons renders those issues moot, and we decline to address them on those grounds.

¶38 For the reasons set forth herein, the judgment of the District Court is affirmed in part and vacated in part.

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

      . This arrangement for ownership and maintenance of the park areas by the homeowners’ association was made in lieu of a dedication of public parkland, as would otherwise have been required under the Flathead County Subdivision Regulations.


source: Caselaw Access Project

license: Public Domain

text:
    KRISTOFER HANS, Petitioner, v. STATE OF MONTANA, Respondent.
    No. 93-176.
    Decided October 20, 1998.
    1998 MT 255.
    55 St.Rep. 1052.
    291 Mont. 227.
    967 P.2d 396.
   OPINION AND ORDER

¶ 1 Kristofer Hans (Hans) moves this Court to reconsider its July 14, 1998 order, denying his second amended petition for postconviction relief. The State of Montana has responded. The controlling issue before this Court is whether Hans’ motion for reconsideration is barred by Rule 34, M.R.App.P.

Factual and Procedural Background

¶2 Hans was sentenced to two terms of 100 years plus 3 years for the use of a weapon and two terms of 10 years plus 2 years for the use of a weapon, to be served concurrently, in June, 1988. His original counsel, Bradley Parrish (Parrish), filed a notice of appeal, but the notice was subsequently withdrawn. Hans filed a pro se petition for postconviction relief as an original proceeding with this Court on April 12,1993. This Court appointed counsel from Montana’s Appellate Defender Office to represent Hans, and an amended petition for postconviction relief was filed on November 17,1993. On August 25, 1994 this Court entered an order denying two of Hans’ claims, remanding his allegations of ineffective assistance of counsel for an evidentiary hearing and findings of fact and conclusions of law, and reserving its ruling on the remaining issues. The District Court held a hearing in November, 1994 and entered findings of fact and conclusions of law on November 21,1996, concluding that Hans’ counsel had not been ineffective except in his failure to preserve Hans’ right to appeal. On July 2,1997 this Court entered an opinion and order denying Hans’ other claims but granting him leave to amend his petition to address claims that were foreclosed from review because of counsel’s failure to pursue a direct appeal. Hans v. State (1997), 283 Mont. 379, 410, 942 P.2d 674, 693. In September, 1997 Hans filed a second amended petition. The State filed a motion to dismiss Hans’ petition or to strike his claims. In January, 1998 this Court entered an opinion and order granting the State’s motion to strike one of Hans’ claims but holding that Hans’ other claims were properly raised and that this Court would review them. Petition of Hans, 1998 MT 7, [288 Mont. 168], 958 P.2d 1175. In July, 1998 this Court entered its order denying Hans’ second amended petition for postconviction relief.

¶3 Hans and the State dispute whether Rule 60(b), M.R.Civ.R, applies in the present case. Hans contends that this Court may review his motion for reconsideration under the “reasonable time” limitation set forth in Rule 60(b), M.R.Civ.P. The State responds that Hans’ motion is in essence a petition for rehearing of an original proceeding that commenced with this Court and that the petition is therefore governed by Rule 17(b), M.R.App.P., and Rule 34, M.R.App.P. The State argues further that under Rule 34, M.R.App.P., Hans’ petition for rehearing was not timely. Rule 34 provides in pertinent part:

When, in appeals or special proceedings, it is ordered that remittitur, peremptory writ or judgment issue forthwith, no petition for rehearing will be entertained. In all other cases a petition for rehearing may be filed within 10 days after the decision of the supreme court has been rendered, unless the time is shortened or enlarged by order, and the adverse party shall have 7 days thereafter in which to serve and file objections thereto. Extensions of time will be granted only upon showing of unusual merit, and in no event in excess of 10 days.

Rule 34, M.R.App.P. (emphasis added). We conclude that Hans’ motion for reconsideration is in essence a petition for rehearing of an original proceeding that began in this Court in 1993. We hold that Rule 34, M.R.App.R, governs petitions for rehearing of proceedings for postconviction relief that originate with this Court.

¶4 Hans’ motion for reconsideration is not timely under Rule 34, M.R.App.P. This Court denied Hans’ amended petition for postconviction relief on July 14,1998. Hans filed his motion for reconsideration of our order on July 31,1998, more than ten days after we entered our order. Because Hans’ motion for reconsideration was untimely under Rule 34, M.R.App.P., we do not address the other issues that Hans has raised.

¶5 Based on the foregoing,

¶6 IT IS ORDERED that Hans’ motion for reconsideration is DENIED with prejudice.

¶7 The Clerk is DIRECTED to mail a copy of this order to William F. Hooks, Hans’ counsel of record, and to counsel for the State.

DATED this 20th day of October, 1998.

/S/ CHIEF JUSTICE TURNAGE

IS/ JUSTICES LEAPHART

/S/ JUSTICE GRAY

/S/ JUSTICE REGNIER

/S/JUSTICE NELSON

/S/ JUSTICE HUNT


author: JUSTICE GRAY

text:
    CROWELL ANDREW CARDNEAUX, a Minor Child, CATHY C. CARDNEAUX, Petitioner and Respondent, v. CHRISTOPHER CARDNEAUX, Respondent and Appellant.
    No. 98-098.
    Submitted on Briefs July 29, 1998.
    Decided October 27, 1998.
    1998 MT 256.
    55 St.Rep. 1055.
    291 Mont. 230.
    967 P.2d 410.

      For Appellant: Chris J. Nelson; Nelson Law Firm, Billings.
    For Respondent: Joan Meyer Nye; Nye & Meyer, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Christopher Cardneaux (Christopher) appeals from the order entered by the Thirteenth Judicial District Court, Yellowstone County, concluding that he consented to the court’s jurisdiction in the underlying child support case and, on that basis, denying his motion to dismiss for lack of personal jurisdiction. We affirm.

¶2 The sole issue on appeal is whether the District Court erred in concluding that Christopher had submitted to its exercise of personal jurisdiction by consent.

BACKGROUND

¶3 A Louisiana court dissolved the marriage of Christopher and Cathy Cardneaux (Cathy) on November 15,1989. In accordance with the parties’ stipulated joint custody plan, that court’s judgment awarded joint custody of their minor child, Crowell Andrew Cardneaux (Andrew), and designated Cathy as the domiciliary and residential parent, with specified visitation rights in Christopher. Christopher was ordered to pay child support monthly.

¶4 On February 8,1991, Cathy filed a “Petition for Modification of Custody (Foreign Decree/Judgment)” in the Thirteenth Judicial District Court, Yellowstone County, Montana. Her petition sought adjustment of the visitation schedule, child support, and health care obligations contained in the Louisiana court’s judgment. Christopher moved to dismiss Cathy’s petition insofar as it sought modification of the child support and health care obligations contained in the Louisiana judgment, claiming the District Court lacked personal jurisdiction over him. On August 7,1991, the District Court granted Christopher’s motion. It concluded that, while it had jurisdiction as to custody and visitation matters pursuant to the Uniform Child Custody Jurisdiction Act, it lacked jurisdiction over Christopher, a nonresident parent, to modify the child support and related health care obligations ordered by the Louisiana court.

¶5 Thereafter, Christopher and Cathy entered into a stipulation to modify the Louisiana judgment by increasing the amount of child support, modifying their obligations for Andrew’s health care and amending the visitation schedule. They filed the stipulation and, on September 17,1991, the District Court issued an order adopting the stipulation and modifying the Louisiana judgment accordingly.

¶6 In 1997, Cathy filed a motion to amend the court’s 1991 order to alter Christopher’s obligations for Andrew’s health care. In response, Christopher filed a special appearance seeking dismissal of Cathy’s motion on the basis that the District Court did not have personal jurisdiction over him. After the parties briefed the jurisdiction issue, the District Court concluded that Christopher’s 1991 stipulation constituted submission to its jurisdiction by consent under § 40-4-210(2), MCA, and denied his motion to dismiss. The District Court ultimately granted Cathy’s motion to amend and increased Christopher’s health care obligations for Andrew. Judgment was entered accordingly and Christopher appeals from the District Court’s denial of his motion to dismiss.

STANDARD OF REVIEW

¶7 A motion to dismiss is construed in a light most favorable to the nonmoving party and should not be granted unless it appears beyond a doubt that the nonmoving party can prove no set of facts in support of its claim which would entitle it to relief. Stenstrom v. State (1996), 280 Mont. 321, 325, 930 P.2d 650, 652 (citing Hilands Golf Club v. Ashmore (1996), 277 Mont. 324, 328, 922 P.2d 469, 471-72). Here, the District Court denied Christopher’s motion to dismiss based on its conclusion that it had personal jurisdiction over him. We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citation omitted).

DISCUSSION

¶8 Did the District Court err in concluding that Christopher had submitted to its exercise of personal jurisdiction by consent?

¶9 A court of this state must have in personam jurisdiction over a nonresident parent prior to entering a judgment ordering — or modifying — child support. See Heinle v. Fourth Judicial Dist. Court (1993), 260 Mont. 489, 493, 861 P.2d 171, 174 (citation omitted). Personal jurisdiction can be obtained pursuant to specific situations enumerated in § 40-4-210, MCA, one of which authorizes a district court to exercise personal jurisdiction to modify child support-related aspects of a foreign decree if “the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document that has the effect of waiving any contest to personal jurisdiction[.]” Section 40-4-210(2), MCA. Where none of the specified situations exist, personal jurisdiction can be exercised over a nonresident parent only if “there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.” Section 40-4-210(8), MCA. Where subsection (8) is asserted as the basis for exercising personal jurisdiction, our analysis proceeds under the long-arm jurisdiction conferred by Rule 4B, M.R.Civ.P. See Heinle, 260 Mont. at 493-94, 861 P.2d at 174.

¶10 In this case, the District Court concluded that the stipulation Christopher entered into in 1991 constituted consent to the District Court’s jurisdiction as provided in § 40-4-210(2), MCA. That stipulation, filed in the District Court, specifically recited that:

[T]he Petitioner, CATHY C. CARDNEAUX, and the Respondent, CHRISTOPHER CARDNEAUX, ... hereby stipulate and agree that the court may modify the joint custody plan, order and decree of the Fifteenth Judicial District Court, LaFayette Parish, Louisiana, docket number 88-2640-C and this Court’s order dated August 7,1991 ....

Among other things, the stipulation and the District Court’s order adopting it increased Christopher’s child support and modified his health care expense obligations relating to the child originally set forth in the Louisiana judgment.

¶11 Christopher contends that the plain meaning of the recitals in the stipulation is that he and Cathy agreed to allow the Louisiana court, not the District Court, to modify the child support-related obligations. He argues that his contention is reinforced by the last portion of the recitals where the parties distinguished between the Louisiana court and “this Court’s” order dated August 7,1991. Christopher’s position is without merit.

¶12 The recitals in the stipulation clearly constitute an agreement by Christopher and Cathy to allow the District Court to modify both the 1989 Louisiana judgment and its own order dated August 7,1991, which concluded that personal jurisdiction over Christopher was lacking. The first reference to “the court” can only refer to the District Court, since that is the court in which the stipulation was filed by the parties and in which Cathy’s petition to modify the Louisiana judgment was pending. This plain reading of the language to which the parties agreed is further buttressed by the fact that Christopher did not object to, or appeal from, the District Court’s order adopting the stipulation and modifying the financial aspects of the Louisiana judgment accordingly. Thus, we conclude that the stipulation reflects Christopher’s consent to the District Court’s exercise of in personam jurisdiction over him for purposes of modifying both the child support-related aspects of the Louisiana judgment and the District Court’s earlier order declining to modify those portions of the Louisiana judgment for lack of personal jurisdiction over Christopher.

¶13 Christopher also argues that he could not have stipulated to the District Court’s exercise of personal jurisdiction over him because the District Court previously had refused to modify the child support and health care obligations contained in the Louisiana judgment. This argument borders on the frivolous.

¶14 In its order dated August 7,1991, the District Court responded to Christopher’s jurisdictional challenge by concluding that it lacked personal jurisdiction over Christopher — a nonresident parent — to modify the child support-related provisions of the Louisiana judgment. Nothing in that order prevented Christopher from later submitting himself to the personal jurisdiction of the District Court via consent, as he did by entering into the stipulation. While it is true that Christopher’s initial jurisdictional challenge would have been preserved and remained effective absent his subsequent consent to the District Court’s exercise of personal jurisdiction over him (see Spencer v. Ukra (1991), 246 Mont. 430, 433, 804 P.2d 380, 382; Foster Apiaries, Inc. v. Hubbard Apiaries, Inc. (1981), 193 Mont. 156, 160, 630 P.2d 1213, 1215), the fact remains that he did submit himself to the District Court’s jurisdiction by consent for purposes of modifying the child support-related portions of the Louisiana judgment and the District Court’s earlier order.

¶ 15 We hold that the District Court did not err in concluding, under § 40-4-210(2), MCA, that Christopher submitted to its exercise of personal jurisdiction over him by consent and in denying his motion to dismiss on that basis.

¶16 Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ERNEST G. SMITH, Defendant and Appellant.
    No. 97-401.
    Submitted on Briefs September 17, 1998.
    Decided October 29, 1998.
    1998 MT 257.
    55 St.Rep. 1058.
    291 Mont. 236.
    967 P.2d 424.

      For Appellant: Steven M. Hudspeth, Attorney at Law, Great Falls.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; David G. Rice, County Attorney, Havre.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶2 The issue is whether the District Court erred in prohibiting Smith’s character witnesses from giving their opinions that Smith, due to his good character, was not capable of committing the charged offenses.

¶3 In July 1996, Smithandhis wife went camping with some friends at Beaver Creek Park in Hill County, Montana. Among the others camping with them were two fourteen-year-old girls, J.G. and K.G., and J.G.’s family. Both J.G. and K.G. testified at trial that they were sleeping in their tent when Smith entered the tent and proceeded to engage in sexual contact with them. They recognized his voice as he told them to stay still and that he would not hurt them. After they yelled at him and he left the tent, the girls reported the incident to J.G’s mother and then to the Hill County Sheriff’s Office.

¶4 Smith was charged with sexual intercourse without consent concerning K.G. and sexual assault concerning J.G. At trial, he testified on his own behalf and presented three character witnesses. The jury found him guilty of the lesser included offense of sexual assault upon K.G., but not guilty of the other charges against him. Smith appeals.

Discussion

¶5 Did the District Court err in prohibiting Smith’s character witnesses from giving their opinions that Smith, due to his good character, was not capable of committing the charged offenses?

¶6 This Court reviews a district court’s evidentiary rulings for abuse of discretion. The trial court has broad discretion in determining whether evidence is relevant and admissible, and absent a showing of abuse of discretion, this Court will not overturn that court’s rulings. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

¶7 The specific question to which obj ection was made and sustained occurred in the following colloquy between Smith’s counsel and the first of Smith’s three character witnesses:

Q. You’re aware that [Smith is] charged with sexual intercourse without consent against one girl and sexual assault against the other girl?
A. Yes.
Q. Based upon your knowledge of [Smith], do you believe that [he] is capable of such a thing?
A. No, I don’t—
[STATE’S COUNSEL]: Objection, Your Honor. I don’t think that’s a proper question for the witness. It invades the province of the jury.
THE COURT: Sustained.

During testimony by the second of Smith’s character witnesses, the State objected “to any questions, whether he was committing these offenses.” The court’s response was, “We will get [the witness’s] opinion by opinion or reputation.” Smith’s counsel did not thereafter attempt to ask his second and third character witnesses whether they thought Smith was capable of the crimes of which he was accused. On appeal, Smith argues that his counsel should have been allowed to ask all three of his character witnesses if they believed he was capable of committing those crimes.

¶8 Smith is correct that a witness’s answer to a question is not rendered inadmissible solely on the basis that it “invades the province of the jury.” Rule 704, M.R.Evid., provides that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Rule 704, however, is not intended to allow all opinions, and would exclude those which would merely tell the jury what result to reach. Advisory Committee’s Note to Federal Rule 704, 56 F.R.D. 183, 285, as quoted in the Commission Comments to Rule 704, M.R.Evid. A court may exclude ultimate issue testimony when it is not helpful to the trier of fact, or under the rules governing exclusion of relevant evidence on grounds of prejudice. Mathie v. Fries (E.D.N.Y. 1996), 935 F.Supp. 1284, 1295-96, aff'd, 121 F.3d 808 (2nd Cir. 1997).

¶9 Rule 404(a), M.R.Evid., generally excludes evidence of a person’s character for purposes of proving action in conformity therewith. One exception allows an accused to present evidence of a “pertinent trait of character” to support an inference that he did not commit the offense. Rule 404(a)(1), M.R.Evid. This Court has specifically recognized the appropriate use of character evidence in prosecutions for sexual offenses. State v. Anderson (1984), 211 Mont. 272, 292, 686 P.2d 193, 204; State v. Austad (1982), 197 Mont. 70, 89, 641 P.2d 1373, 1383.

¶10 Smith cites four cases which he argues entitle him to present his witnesses’ testimony that they did not believe him capable of the crimes with which he was charged. However, none of the cases he cites stand directly for that proposition. In the first case, Anderson, the defendant’s wife and others testified, apparently without objection, that the charges against the defendant did not comport with their knowledge of him. The court allowed them to so testify; whether that was proper was not an issue raised on appeal. See Anderson, 211 Mont, at 292, 686 P.2d at 204. This Court therefore did not have the opportunity to rule on the propriety of that testimony.

¶11 In the second case Smith cites, United States v. Gillespie (9th Cir. 1988), 852 F.2d 475, the court ruled that the trial court abused its discretion by admitting the testimony of a clinical psychologist regarding characteristics of child molesters in general. The court reasoned that the defendant had not presented any witnesses who testified that he had any specific character traits that rendered him incapable of molesting a female child. Gillespie, 852 F.2d at 480. However, the court’s ruling did not equate to a conclusion that the testimony which defendant did not present would have been admissible.

¶12 In State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455, the defendant’s conviction was reversed because, among other reasons, “bad character evidence” — evidence that he was a cocaine dealer — was allowed without the door having been opened to such evidence. This Court reasoned that the defense’s opening statement merely mentioned that law enforcement told the informant that they were interested in getting a conviction against Gommenginger for a drug sale. The ruling that the door was not thereby opened to bad character evidence is not on point with the issue presented in the case at bar.

¶13 Finally, in People v. McAlpin (Cal. 1991), 812 P.2d 563, the defendant was accused of sexually molesting his date’s eight-year-old daughter. The appellate court ruled as error the trial court’s refusal to allow two witnesses for the defense to testify that in their respective opinions defendant was neither a “sexual deviant” nor a “person of lustful or lewd conduct with children.” Both of those witnesses were women who had dated the defendant and who had young daughters. The error was harmless, however, because, due to the strength of the prosecution’s case, it was not reasonably probable that a verdict more favorable to the defendant would have been reached in the absence of this error. McAlpin, 812 P.2d at 578. The court clarified, on the other hand, that a character witness with no personal knowledge of specific facts related to the offenses with which the defendant was charged was properly prohibited from testifying as to defendant’s conduct with children, a matter on which he had not made personal observations. McAlpin, 812 P.2d at 575.

¶ 14 In the present case, Smith’s three character witnesses all testified that they had children, two having daughters close in age to the victims. However, the character witnesses were not camping with Smith and the others on the night in question and there was no evidence that they were acquainted with the victims or the circumstances of the charges against Smith.

¶15 Under Rule 405, M.R.Evid., proof of character may be made either by testimony as to reputation or testimony in the form of an opinion. Smith’s three character witnesses were allowed to give their opinions that he was of very good character and a gentleman, and to state that despite the charges against him their opinions of him would not change. Smith proposed that the jury also be told in the form of opinions that he could not have committed the offenses with which he was charged. The testimony proposed by Smith would have exceeded the scope of Rule 405, M.R.Evid. It is not a “pertinent trait of character,” but is an opinion on the question of Smith’s ultimate guilt.

¶16 This Court has cautioned against allowing an expert to give an opinion which, instead of being an opinion embracing an ultimate issue of fact, amounts to an opinion of guilt or innocence embracing all issues. State v. Gregoroff (1997), [287 Mont. 1], 951 P.2d 578, 581-82. That caution applies even more to opinions of non-expert witnesses in that, ordinarily, more prejudice than benefit is likely to be gained from such opinion testimony.

¶17 Further, Rule 701, M.R.Evid., limits the scope of non-experts’ opinion testimony. Rule 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Consistent with Rule 701, this Court has held that lay witnesses may offer their opinions as long as those opinions are based on the witnesses’ own observations. State v. Henricks (1982), 201 Mont. 157, 164, 653 P.2d 479, 482. Here, the witnesses were asked to state their opinion about Smith’s capacity to commit the offenses, without having any knowledge of the offenses themselves. While the witnesses testified that they had personal knowledge of Smith’s character, that did not entitle them to extrapolate on Smith’s capacity to commit an offense of which they had no personal knowledge.

¶18 We hold that the District Court did not abuse its discretion in refusing to allow Smith’s character witnesses to give their opinions that Smith, due to his good character, was not capable of committing the charged offenses. Affirmed.

JUSTICES GRAY, REGNIER, NELSON and HUNT concur.


author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JOHN HENRY ANDERSON, Defendant and Respondent.
    No. 98-005.
    Argued July 2, 1998.
    Submitted July 23, 1998.
    Decided October 29, 1998.
    1998 MT 258.
    55 St.Rep. 1061.
    291 Mont. 242.
    967 P.2d 413.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin (argued), Assistant Attorney General, Helena; Ronald S. Efta, Wibaux County Attorney, Wibaux.
    For Respondent: Jay F. Lansing (argued), Attorney at Law, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 The State of Montana appeals from an order of the Seventh Judicial District Court, Wibaux County, dismissing a charge against John Henry Anderson of driving while under the influence of alcohol (DUI), third offense. We reverse.

¶2 The issue is whether the District Court erred in dismissing the DUI charge as violative of the Double Jeopardy Clause.

¶3 John Henry Anderson was arrested on August 17, 1996, and charged with third- offense DUI, violating restrictions imposed on his probationary driver’s license, and driving without liability insurance. He was convicted of DUI injustice court and appealed.

¶4 On appeal in the District Court, Anderson pointed out that the DUI charge had already been considered for purposes of assessing his prospects for rehabilitation at his sentencing on a prior and separate criminal charge of operating a motor vehicle after having been declared a habitual traffic offender. He moved to dismiss the DUI charge on grounds that it violated his right to be free from double jeopardy. The District Court agreed. The State appeals.

Discussion

¶5 Did the District Court err in dismissing the DUI charge as violative of the Double Jeopardy Clause?

¶6 The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits successive prosecutions or multiple punishment for “the same offence.” In this case, the District Court concluded it would have violated that proscription if it had convicted and sentenced Anderson for DUI after the underlying conduct had been considered in determining his sentence on his prior conviction. This Court’s standard of review of a question of constitutional law such as this one is plenary. State v. Schnittgen (1996), 277 Mont. 291. 295. 922 P.2d 500, 503.

¶7 The only case law offered by Anderson to support the District Court’s decision is North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, overruled in part and on other grounds, Alabama v. Smith (1989), 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865. In Pearce, the United States Supreme Court set forth three constitutional protections contained within the double jeopardy guarantee: protection against a separate prosecution for the same offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense.

¶8 Citing Pearce, Anderson argues that he would suffer multiple punishments for the same offense if he were convicted of DUI after that charge had been considered for purposes of increasing his punishment in sentencing on the prior offense. However, the facts of Pearce, and consequently the issue before the court in that case, were dissimilar to the facts of the present case. The issue in Pearce was whether a criminal defendant whose conviction had been set aside was entitled to Constitutional protection against imposition of a harsher sentence after another conviction upon retrial. The Court held that neither the double jeopardy provision nor the Equal Protection Clause imposed an absolute bar to a more severe sentence upon reconviction; provided, however, that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. Pearce, 395 U.S. at 723-25, 89 S.Ct. at 2079-80, 23 L.Ed.2d at 668-69.

¶9 The argument raised here by Anderson has been rej ected by the United States Supreme Court, in Witte v. United States (1995), 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351. Witte was convicted of two separate charges in federal court — a marijuana charge and a cocaine charge. His conduct giving rise to the cocaine charge was taken into account during his sentencing for the marijuana conviction. He argued in the case on the cocaine charge that he effectively had been “punished” for that conduct during the proceedings on the marijuana charge, and that as a result, the Double Jeopardy Clause barred his subsequent prosecution on the cocaine charge.

¶10 The Supreme Court did not agree with that argument. As to the consideration of uncharged conduct in sentencing in a criminal proceeding, the Court reaffirmed its precedent establishing “that a defendant in that situation is punished, for double jeopardy purposes, only for the offense of which the defendant is convicted.” Witte, 515 U.S. at 397, 115 S.Ct. at 2205, 132 L.Ed.2d at 362. “[Cjonsideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one of which the defendant was convicted.” Witte, 515 U.S. at 401, 115 S.Ct. at 2207, 132 L.Ed.2d at 365.

¶11 Both before and after Witte, at least four state courts have also rejected claims similar to Anderson’s. In State v. Heinz (N.H. 1979), 407 A.2d 814, Heinz, who had previously pled guilty in federal court to embezzlement, raised a double jeopardy challenge to state court charges against him of theft by misapplication. Heinz pointed out that in sentencing him, the federal court had considered his acts later charged as theft by misapplication in state court. In rejecting Heinz’s double jeopardy argument, the court noted:

The defendant apparently feels that he has already been punished for the entire scheme because the federal court considered the additional allegations in sentencing him.... In federal practice, the sentencing judge may take into account the circumstances surrounding the offense charged, including indications of criminal conduct for which the defendant has not been tried or convicted.... That action does not, however, mean that the conduct can never be the basis for subsequent prosecution[.]

Heinz, 407 A.2d at 818.

¶ 12 The Appellate Court of Illinois, Fourth District, in determining that a trial court may properly sentence a person for criminal conduct after having considered such conduct as an aggravating factor in a prior sentencing hearing on unrelated charges, wrote:

[I]n order to select an appropriate sentence, it is essential that a sentencing court be in possession of the fullest possible information concerning a defendant’s life and characteristics....
... [T]he defendant ... was being punished for the offense for which he was charged, and ... consideration of the other offense in determining that punishment did not amount to punishing the defendant for the other offense. This would be so regardless of whether evidence of the other offense was the sole reason for aggravating a sentence or only one of several reasons for doing so.

People v. Bankhead (Ill. App. Ct. 1984), 462 N.E.2d 899, 900-01.

¶13 The Court of Appeals of Alaska has ruled that neither federal nor state double jeopardy prohibitions bar the state from prosecuting a person for perjury following consideration of the peijury, as it relates to prospects for rehabilitation, in sentencing on the underlying criminal matter. Shannon v. State (Alaska App. 1989), 771 P.2d 459.

¶14 Finally, the Supreme Court of Georgia, relying upon Witte, reached the same conclusion in Nance v. State (Ga. 1996), 471 S.E.2d 216. The Georgia court held that a federal district court’s consideration in sentencing Nance on a robbery charge of Nance’s post-robbery conduct, including a murder, did not bar a subsequent state indictment for the murder under the double jeopardy clauses of either the federal or Georgia constitutions.

¶15 Anderson attempts to distinguish Witte, Heinz, and Nance on grounds that they involved the statutory federal Sentencing Guidelines, whereas his case does not. That is a distinction without a difference. In Witte, in fact, the United States Supreme Court relied upon pre-Sentencing Guideline cases as precedent, and stated:

We are not persuaded by petitioner’s suggestion that the Sentencing Guidelines somehow change the constitutional analysis. A defendant has not been “punished” any more for double jeopardy purposes when relevant conduct is included in the calculation of his offense level under the Guidelines than when a pre-Guidelines court, in its discretion, took similar uncharged conduct into account.

Witte, 515 U.S. at 401, 115 S.Ct. at 2207, 132 L.Ed.2d at 365.

¶16 In the present case, the District Court concluded that the court which sentenced Anderson for the habitual traffic offender offense had “formed an opinion in its mind that [Anderson] was guilty of the [pending DUI offense].” The court stated that Anderson had obviously received increased punishment based upon a charge for which he had not yet been convicted. Anderson points out that a court could consider conduct for which the defendant is later acquitted and increase a sentence on that basis, leaving the defendant with no ability to go back and ask that his original sentence be reduced.

¶17 Even accepting this acquitted conduct theory, however, it does not represent a reason to dismiss the DUI charge in this case. It is, if anything, an argument which should have been raised at the proceedings in which the pending DUI charges were considered in sentencing on the other offense.

¶ 18 Pending criminal charges will clearly be accorded a different, and generally lesser, weight at a sentencing hearing than are prior criminal convictions. See, e.g., State v. Goulet (1996), 277 Mont. 308, 311, 921 P.2d 1245, 1246. However, under the argument advanced by Anderson, consideration of any prior convictions at a criminal sentencing would constitute double jeopardy, as well. This would markedly abrogate this country’s longstanding history of taking into consideration at criminal sentencings the defendant’s prior criminal behavior. See Witte, 515 U.S. at 397-98, 115 S.Ct. at 2205, 132 L.Ed.2d at 362-63.

¶19 We hold that the District Court erred, under the controlling authority of Witte, in dismissing the DUI charge against Anderson. This case is remanded for reinstatement of that charge and for further proceedings consistent with this Opinion.

JUSTICES GRAY, NELSON, REGNIER and TRIEWEILER concur.

JUSTICE LEAPHART

dissenting:

¶20 In this case, the State of Montana (the State) appeals from an order of the District Court of the Seventh Judicial District, Wibaux County, dismissing a charge of Driving While Under the Influence of Alcohol (DUI) against Defendant, John Henry Anderson (Anderson). Because the pending DUI charge had been previously considered in fixing the sentence for a separate and unrelated conviction of Operating a Motor Vehicle After Having Been Adjudged a Habitual Traffic Offender (HTO), the District Court ruled that the DUI conviction would result in a violation of Anderson’s constitutional right to be free from double jeopardy, as secured by both the State and Federal Constitutions. The State asks that we conclude that the District Court erred in dismissing the DUI charge as violative of double jeopardy. Following the State’s prompting, the majority of this Court reverses the District Court’s judgment based on the recent United States Supreme Court decision of Witte v. United States (1995), 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351, which is claimed to be “controlling authority.” Because I do not feel compelled to march lock-step with the U.S. Supreme Court when it comes to interpreting the Montana Constitution’s prohibition against double jeopardy, I dissent.

I.

¶21 We have recognized that both the State and Federal Constitutions provide three distinct protections against double jeopardy: first, they protect “ ‘against a second prosecution for the same offense after acquittal;’ ” second, they protect “ ‘against a second prosecution for the same offense after conviction;’ ” and finally, they protect “ ‘against multiple punishments for the same offense.’ ” State v. Chasse (1989), 240 Mont. 341, 343, 783 P.2d 1370, 1371, quoting State v. Wirtala (1988), 231 Mont. 264, 269, 752 P.2d 177, 181; see also North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65. This case involves the multiple punishments prong of the Double Jeopardy Clause. Under the Montana Constitution, double jeopardy protection is at least as strong as that provided by the Federal Constitution. See State v. Nelson (1996), 275 Mont. 86, 89, 910 P.2d 247, 250 (“For purposes of this case,... we treat the protections from double jeopardy afforded under both our state and the federal constitutions as co-extensive... “). Federal constitutional rights merely present a minimum floor of protection below which state constitutional protections may not decline; however, the Montana Constitution may be found to be more protective of individual rights than its federal counterpart. See State v. Johnson (1986), 221 Mont. 503, 512-13, 719 P.2d 1248, 1254-55.

¶22 The United States Supreme Court first recognized that the Double Jeopardy Clause of the Fifth Amendment is “designed as much to prevent the criminal from being twice punished for the same offen[s]e as from being twice tried for it.” Ex parte Lange (1873), 85 U.S. (18 Wall) 163, 173, 21 L.Ed. 872, 878 (emphasis added). “If there is anything settled in the jurisprudence of England and America, it is that no man [or woman] can be twice lawfully punished for the same offen[s]e.” Lange, 85 U.S. (18 Wall) at 168, 21 L.Ed. at 876. Given this constitutional heritage, the multiple punishments protection “must be applied to all cases where a second punishment is attempted to be inflicted for the same offen[s]e by a judicial sentence.” Lange, 85 U.S. (18 Wall) at 173, 21 L.Ed. at 878. ¶23 In this case, Anderson asks this Court to consider whether the multiple punishments proscription is violated when a criminal defendant is subsequently convicted and sentenced on a charge that was previously used to enhance a sentence imposed for a separate conviction. In my view, the double jeopardy violation in this case was plain. Anderson was convicted of the HTO offense. The presentencing report suggested certain sanctions. Anderson was then subsequently charged with the DUI and Driving In Violation of Restrictions Imposed on a Probationary Driver’s License (Probationary) offenses. Taking these pending charges into consideration, the probation officer substantially increased the severity of his suggested sanctions. On the basis of these suggestions and the testimony of both the probation officer and arresting officer at the sentencing hearing, the court assessed a more severe sentence than would otherwise have been imposed.

¶24 Although we may never know the exact sentence that would have been levied had the pending charges not been considered at sentencing on the HTO offense, the record shows that at least the supervised probation was added as punishment for the pending DUI and Probationary charges. Therefore, the enhanced punishment incorporated into the HTO sentence can, for the purpose of argument, be attributed to the pending charges. Indeed, as the District Court noted: “The original ... pre-sentence report... [contained] no recommendation for any supervised probation. It is highly unlikely that the Court would have exceeded the recommendation made by the probation officer in the pre-sentence report.” I would agree. Hence, when the State thereafter tried Anderson on the DUI charge, double jeopardy properly barred that proceeding because Anderson already had been effectively punished for the DUI offense'

¶25 In other words, when the State tried Anderson on the DUI charge, he was “again put in jeopardy for the same offense ....’’Art. II, § 25, Mont. Const. “Both the U.S. Constitution, Fifth Amendment and the Montana Constitution, Article II, Section 25, protect individuals from being twice placed in jeopardy.” Keating v. Sherlock (1996), 278 Mont. 218, 224, 924 P.2d 1297, 1300. Double jeopardy applies to “multiple punishments” because, if it did not apply to punishment, then the prohibition against “multiple trials” would be meaningless; a court could simply achieve the same effect as a second trial by resentencing a criminal defendant after that defendant had served all or even part of an initial sentence. See Lange, 85 U.S. (18 Wall) at 175, 21 L.Ed. at 878.

¶26 Indeed, whether multiple punishments or multiple trials are at issue, the “real danger guarded against by the Constitution” is the underlying fear that a criminal defendant will receive punishment in addition to that which has already been imposed. Lange, 85 U.S. (18 Wall) at 173, 21 L.Ed. at 878. The Double Jeopardy Clause should thus shield Anderson, for it “protects against more than the actual imposition of two punishments for the same offense; by its terms, it protects a criminal defendant from being twice put in jeopardy for such punishment.” Witte, 515 U.S. at 396, 115 S.Ct. at 2204, 132 L.Ed.2d at 361 (citing Price v. Georgia (1970), 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300, 303).

¶2 7 I concur with the conclusion of the District Court that, when the HTO sentence was enhanced on the basis of the pending charges, Anderson “was being punished, at least in part, for charges that had not yet been tried” (emphasis added). The court based this conclusion on the comments of the sentencing judge made during the imposition of Anderson’s sentence:

I have to take into consideration your prospect of rehabilitation. And that’s pretty nil. The testimony of [the arresting police officer] ... indicates that even while this charge was pending,... you again violated and showed absolute disregard for the laws of the State of Montana in regard to traffic offenses .... [Emphasis added.]

¶28 If the multiple punishments prong of our Double Jeopardy Clause is to mean anything at all, it must proscribe a subsequent prosecution where the conduct at issue in that prosecution has been a definitive factor, as here, in enhancing the punishment received for a prior offense. Ultimately, I stand unconvinced by the statements of the sentencing court that it was not “takfing] into consideration any enhancement,” as “[t]hat would be inappropriate since this case has-n’t been tried.” Here, it is evident that the additional punishment of supervised probation was a sentencing enhancement attributable to the pending charges. The comments of the sentencing court viewed as a whole indicate, as the District Court noted, that “the Court had concluded that the defendant was guilty of the pending [DUI] offense” and that the pending charges “formed a basis for the [enhanced] sentence that was imposed.” In short, as the District Court pointedly stated, “the defendant was, without a formal trial, found guilty in the mind of the sentencing judge, and the sentence reflected that finding” (emphasis added).

¶29 Double jeopardy “attaches” in a criminal proceeding whenever a criminal defendant faces the risk of a determination of guilt, whether it be by judge or jury. Serfas v. United States (1975), 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274. Because the sentencing court either prejudged Anderson’s guilt on the pending charges or came perilously close to doing so, I would hold that jeopardy has attached to Anderson’s DUI charge, thereby preventing a subsequent prosecution and conviction by the State of Montana. “The constitutional prohibition [against double jeopardy] is designed to prevent the individual from being put at risk of conviction at second trial.” Keating, 278 Mont. at 224, 924 P.2d at 1300. After today’s decision, however, I am hard pressed to envision any multiple punishments violation short of the unrealistic hypothetical scenario involving a first trial that results in a conviction and a subsequent trial on the same charge that attempts to impose the identical punishment obtained in the first conviction. Surely, the multiple punishments protection afforded by Article II, Section 25 of the Montana Constitution is broader than that.

¶30 I simply cannot in good conscience accept the majority’s contention that “ ‘a defendant in [Anderson’s] situation is punished, for double jeopardy purposes, only for the offense of which the defendant is convicted.’ ” Witte, 515 U.S. at 397, 115 S.Ct. at 2205, 132 L.Ed.2d at 362. The majority only reaches this conclusion by adopting the United States Supreme Court’s formalistic approach to double jeopardy jurisprudence. According to the U.S. Supreme Court, courts must draw a constitutional line between the “offense of conviction” for which sentencing is due and other pending charges considered at sentencing, ignoring the straightforward fact that an enhanced sentence for the “offense of conviction” on the basis of a pending charge is in effect punishment for that pending charge.

¶31 In other words, under the U.S. Supreme Court’s approach, a criminal defendant cannot be “punished” for an “offense,” for purposes of double jeopardy, unless that particular offense was the subject of a criminal charge and conviction. This tautological proposition is logically absurd. If a conviction is obtained on a particular charge, then the defendant is “punished” for only that conviction in sentencing; but if a particular offense is not stated in the charge for which sentencing is due, then the defendant is “not punished” for that offense when it is used to enhance the sentence imposed for the “offense of conviction.” This formalistic line-drawing construct, while perhaps well suited to administrative practicability and ease of jurisprudential decision making, is ill suited to the protection of a right as fundamental as double jeopardy. Resolving issues of fundamental rights by recourse to the fact that the State placed different language in the different charges against Anderson in this case simply avoids the difficult, fact-specific question posed to this Court under our Double Jeopardy Clause.

¶32 I further note that Witte’s formalistic approach in the criminal arena is at odds with recent U.S. Supreme Court double jeopardy precedent in the area of civil punishments. See generally Department of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. 767, 780-83, 114 S.Ct. 1937, 1946-48, 128 L.Ed.2d 767, 778-81 (holding that Montana’s dangerous drug tax was “the functional equivalent of a successive criminal prosecution” under the Double Jeopardy Clause); United States v. Halper (1989), 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487, 502 (holding that a separate civil penalty can be so excessive that it constitutes multiple punishment within the meaning of the Fifth Amendment), abrogated by Hudson v. United States (1997), 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450. While subsequent decisions of the U.S. Supreme Court have narrowed the utility of this functional approach to multiple punishments, provided that the facts meet the seven criteria enumerated in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 660-61, the possibility remains under federal case law to find a double jeopardy violation for the successive imposition of a civil sanction. See Hudson v. United States (1997), 522 U.S. 93, 118 S.Ct. 488, 493, 139 L.Ed.2d 450, 459 (listing the seven factors in Kennedy). In other words, civil sanctions may be found to be “ ‘so punitive in form and effect as to render them criminal’ ” within the meaning of the Double Jeopardy Clause, Hudson, 118 S.Ct. at 495, 139 L.Ed.2d at 462, quoting United States v. Ursery (1996), 518 U.S. 267, 290, 116 S.Ct. 2135, 2148, 135 L.Ed.2d 549, 569, even in the absence of the procedural requirements ordinarily attendant to a criminal conviction.

¶33 If “punishment” can be imposed for double jeopardy purposes in civil proceedings when no charge has been filed and no conviction obtained, then certainly “punishment” can be imposed for a criminal “offense” even though that offense is not contained in the particular charge for which sentencing is due — for example, Anderson’s effective punishment for the DUI charge in the sentence enhancement for the HTO conviction. That is, Anderson’s sentence enhancement can be found to constitute “criminal punishment” under the Double Jeopardy Clause even though he had not yet been formally criminally prosecuted for the pending charges (i.e., a conviction had not yet been obtained by the State).

¶34 Thus, I would embrace a functional approach to double jeopardy jurisprudence, one that painstakingly considers the individualized facts in light of the ultimate question whether multiple punishments have or are “in jeopardy” of being imposed. Art. II, § 25, Mont. Const. Indeed, “ ‘humane interests’ ” underlie the “intrinsically personal” constitutional guarantee of the Double Jeopardy Clause. Halper, 490 U.S. at 447, 109 S.Ct. at 1901, 104 L.Ed.2d at 501. A cookie-cutter approach to double jeopardy jurisprudence does little, in my mind, to protect this humane and intrinsically personal right. I remain firm in my conviction that, in a case like the one at bar, a doublejeopardy “violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.” Halper, 490 U.S. at 447, 109 S.Ct. at 1901, 104 L.Ed.2d at 501 (approach abrogated by Hudson). Taking such a functional approach in this case, I conclude that when the pending charges clearly served to enhance the sentence received under the HTO conviction, Anderson was effectively criminally punished for the DUI charge.

¶35 If Anderson was in effect found guilty of the pending DUI charge due to the State’s introduction of this evidence at the sentencing hearing, then the Double Jeopardy Clause of the Montana Constitution should prohibit the State from attempting, as it did, to again punish Anderson in a formal trial on the DUI charge. Otherwise, we have condoned the assessment of multiple punishments for the same offense. Here, the majority would allow Anderson to be effectively punished for the DUI offense in the HTO sentencing, and then would allow him to be subsequently prosecuted and punished for the DUI offense in the DUI proceeding. To me, that smacks of “double punishment” under any understanding of the term. The rationale put forward by the State and the majority may as well be saying: “ ‘We do not punish you twice for the same offense,... but we punish you twice as much for one offense solely because you also committed another offense, for which other offense we will also punish you (only once) later on.’ ” Witte, 515 U.S. at 406, 115 S.Ct. at 2210, 132 L.Ed.2d at 368 (Scalia, J., concurring in the judgment).

¶36 I, for one, refuse to engage in such double jeopardy double talk. In rejecting such an Orwellian approach, I find myself in agreement with the reasoning found in the pre-Witte decision of United States v. Koonce (10th Cir. 1991), 945 F.2d 1145, 1149, abrogated by Witte: “The protection from double prosecution would certainly be a hollow one if the government were constitutionally permitted to develop a scheme to punish a person twice for the same conduct just so long as it did not subject him [or her] to two trials.” That is precisely what is at issue in this case. A large part of our problem is the current state of criminal law, including the proliferation of multiple, overlapping criminal offenses by the legislature. But this is not a principled reason for ignoring our constitutional heritage, and our solemn duty as constitutional watchdogs, in this case. See Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy vii (1969) (double jeopardy “policy-making has been left to the courts because the legislatures have neglected to consider the effect of increasing the number of punishable acts”). “ ‘It is clear that preventing multiple punishments for the same offense was foremost in the minds of the framers of the doublejeopardy clause.... Until joinder became permissible and commonplace, however, multiple punishment could result only from multiple trials.’” Koonce, 945 F.2d at 1149, quoting Comment, Twice Put in Jeopardy, 75 Yale L.J. 262, 266 n.13 (1965).

¶37 In a related vein, this Court has previously acknowledged “a trend in prosecutions to use multiple count pleadings,” prompting our admonishment that “[p]rosecutors and trial courts should note the limitations and spirit behind the double jeopardy clause so that they may avoid potential constitutional problems.” State v. Lindseth (1983), 203 Mont. 115, 117, 659 P.2d 844, 846; see also Brown v. Ohio (1977), 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193 (double jeopardy “serves principally as a restraint on courts and prosecutors”). In my view, prosecutors in Montana act at their jeopardy when they attempt to enhance a sentence for the offense of conviction on the basis of pending criminal charges. The Double Jeopardy Clause is supposed to be a constraint on the awesome power of the state, with all of its prosecutorial resources, in the face of the individual confronted with a criminal charge. “History has given American law a double jeopardy concept as part of its most fundamental principles. That concept... is directed towards the protection of the criminal defendant and against the state’s power ....” Sigler, supra, at 37; see also Sigler, supra, at 155-187 (discussing the “primary policy issue” underlying the double jeopardy protection, the restraint of discretionary prosecutorial power in the interest of protecting the civil liberties of the greater community).

¶38 The essence of the prohibition against double jeopardy “is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm the Government with a potent instrument of oppression.” United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642, 649. In this case, the sentencing hearing effectively served as a surrogate trial — indeed, a trial without all of the requisite constitutional protections of due process, such as the right to be charged and the right to defend one’s case in front of a jury of one’s peers. The sentence enhancement based on the pending charges constituted punishment for purposes of double jeopardy. Thus, jeopardy has properly “attached” to the DUI charge, thereby barring a subsequent prosecution by the State of Montana. Allowing the State to proceed on the DUI charge, as the majority does, runs afoul of the multiple punishments protection found in Article II, Section 25 of the Montana Constitution.

¶39 The majority points to the slippery slope inherent in this position: “[Ujnder the argument advanced by Anderson, consideration of any prior convictions at a criminal trial would constitute double jeopardy, as well.” This expansive reading of the Double Jeopardy Clause is not, however, necessary to dispose of this case with a sense of principle. I do not disagree with the rationale behind punishing recidivist offenders more severely based on prior convictions. As the Witte Court explained, an enhanced punishment for a recidivist offender does not offend double jeopardy “because the enhanced punishment imposed for the later offense ‘is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,’ but instead as ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ ” Witte, 515 U.S. at 400, 115 S.Ct. at 2206, 132 L.Ed.2d at 364 (citations omitted).

¶40 We have similarly noted that “increasing the sentence of a persistent felony offender is entirely consistent with the constitutional mandate [in Montana] that ‘Laws for the punishment of crime shall be founded on the principles of prevention and reformation.’ ” State v. Maldonado (1978), 176 Mont. 322, 330, 578 P.2d 296, 301, quoting Art. II, § 28, Mont. Const. “ ‘The enhanced punishment [does not constitute an]... additional penalty for crimes already committed... [, but rather, the] subsequent conviction is punished with greater severity by reason of the incorrigible and dangerous character demonstrated by the series of convictions.’ ” In re Bean’s Petition (1961), 139 Mont. 625, 627, 365 P.2d 936, 937, quoting 25 Am.Jur. at 263 (emphasis added).

¶41 Punishing recidivists more severely does not run afoul of double jeopardy because the enhanced punishment has a nonpunitive, remedial purpose. See Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 661 (noting that the “traditional aims” of criminal punishment are “retribution and deterrence”). That is, it factors in the criminal character of the defendant, as evidenced by conduct for which he or she has been charged, tried, and convicted. However, unless we turn a blind eye to the presumption of innocence, pending charges cannot be analogized with a criminal conviction. Until such time as the state proves a charge beyond a reasonable doubt in front of a jury, with the defendant having a right to appeal the conviction, the conduct underlying the pending charges simply cannot be considered “criminal” under our system of justice.

¶42 The question of whether a sentencing court may consider prior criminal convictions in sentencing is not before this Court. If it were, it would clearly present a different question from the issue which is before this Court — the consideration of charged, but unadjudicated conduct (i.e., conduct for which a criminal defendant is presumed innocent under our system of justice). When a case like the one sub judice comes before this Court, it illustrates the dangers of allowing the State to attempt to maximize the penalty for the offense of conviction based on unrelated, pending criminal charges. Here, Anderson is in jeopardy of effectively being punished twice for the same DUI offense.

¶43 “The moral sentiment which double jeopardy exemplifies is the feeling that no man [or woman] should suffer twice for a single act.” Sigler, supra, at 35. It is this moral sentiment that haunts me in this case. Because I feel that the double jeopardy proscription against multiple punishments found in Article II, Section 25 of the Montana Constitution should be liberally construed according to its plain meaning — an absolute prohibition against multiple punishments for the same offense — I respectfully dissent.

II.

¶44 Today, the majority uncritically adopts the Witte decision lock-stock-and-barrel. The adoption of Witte is not reasoned, nor does the majority provide any explanation for its adoption of Witte other than to say that “[t]he argument raised by Anderson has been rejected by the United States Supreme Court...” The underlying rationale of Witte and its progeny in the federal courts, is the same notion that I opposed this Court adopting in State v. Zabawa (1996), 279 Mont. 307, 320, 928 P.2d 151, 159 (Leaphart, J., dissenting) — namely, the idea “that multiple punishments for the same offense are not prohibited by the Double Jeopardy Clause if that is what the legislature clearly intended.” The precise holding of Witte tracks this notion: “We hold that, where the legislature has authorized such a particular punishment range for a given crime, the resulting sentence within that range constitutes punishment only for the offense of conviction for purposes of the double jeopardy inquiry.” Witte, 515 U.S. at 403-04, 115 S.Ct. at 2208, 132 L.Ed.2d at 366 (emphasis added).

¶45 However, “[t]he double jeopardy clause in Article II, Section 25, limits the power of all branches of the government, including the legislature.” Zabawa, 279 Mont. at 326, 928 P.2d at 163 (Leaphart, J., dissenting). Thus, just like the U.S. Supreme Court decision of Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535, to which I vehemently dissented in Zabawa, the wholesale adoption of Witte perpetuates the faulty notion that Article II, Section 25 of the Montana Constitution, like the Fifth Amendment, merely prevents the sentencing court from prescribing greater punishment than the legislature intended. See, e.g., Hunter, 459 U.S. at 366, 103 S.Ct. at 678, 74 L.Ed.2d at 542. This is simply not true. So long as we do not afford less protection than the Federal Constitution in our interpretations of the Montana Constitution, this Court is not compelled to adopt U.S. Supreme Court decisions as “controlling authority.”

¶46 Not only is Witte not binding upon this Court, but it is distinguishable from the case at bar. Anderson points out that “[sjtarting down the path of reliance upon federal sentencing jurisprudence is a dangerous one” because the Federal Sentencing Guidelines (the Guidelines) constitute “a very detailed and integrated sentencing scheme.” I would agree. The Guidelines are a much more comprehensive sentencing scheme than we have in Montana, mandating consideration of sentencing factors that are only discretionary under Montana law.

¶47 The majority summarily dismisses this laudable distinguishment made by Anderson— that Witte and its progeny are based on the unique statutory framework of the Guidelines — by calling this argument a “distinction without a difference.” In Witte, the defendant argued that he should be sentenced in a single proceeding for all related offenses, whether charged or uncharged. He contended that consolidated sentencing was necessary to protect against the potential unfairness of receiving a substantially higher aggregate punishment due to multiple, overlapping prosecutions where the related charges serve to enhance each of the individual sentences imposed. However, the U.S. Supreme Court emphasized in Part III of the Witte opinion that the structure of the Guidelines themselves mitigate the potential for multiple or disproportionate total punishments:

[Section] 5G1.3 of the Guidelines attempts to achieve some coordination of sentences imposed in such situations with an eye toward having such punishments approximate the total penalty that would have been imposed had the sentences for the different offenses been imposed at the same time (i.e., had all of the offenses been prosecuted in a single proceeding)....
Because the concept of relevant conduct under the Guidelines is reciprocal, § 5G1.3 operates to mitigate the possibility that the fortuity of two separate prosecutions will grossly increase a defendant’s sentence.

Witte, 515 U.S. at 404-05, 115 S.Ct. at 2208, 132 L.Ed.2d at 367; see also United States v. McCormick (1993), 992 F.2d 437, 442-43, abrogated by Witte (Mahoney, J., concurring in part and dissenting in part) (noting, in dissent, the same reciprocal, protective function of § 5G1.3 of the Guidelines).

¶48 These significant safeguards built into the Guidelines assured the U.S. Supreme Court that Witte’s concerns over unfairness were not significant. I cannot find such solace in the discretionary sentencing scheme we have here in Montana. We have no analogue to the Guidelines that ensures that a criminal defendant receives parity in total sentencing on related offenses. Although I have a high degree of faith in the ability of our trial court judges to use their discretion wisely in sentencing, where that discretion transgresses the Montana Constitution, as here, it is this Court’s duty to correct the constitutional violation. I would hold that where a pending criminal charge is clearly used to enhance a sentence imposed for a separate conviction, double jeopardy attaches to a subsequent prosecution on that criminal charge. To hold otherwise violates the multiple punishments protection of Article II, Section 25 of the Montana Constitution.

¶49 The majority relies on the bare assertion that the Guidelines do not “ ‘change the constitutional analysis,’ ” Witte, 515 U.S. at 401, 115 S.Ct. at 2207, 132 L.Ed.2d at 365, to dispose of Anderson’s attempt to distinguish Witte. This conclusory explanation falls short of the facts in this case. The U.S. Supreme Court’s statement was referring to the discretionary consideration of “uncharged conduct” by a pre-Guidelines court. See Witte, 515 U.S. at 401, 115 S.Ct. at 2207, 132 L.Ed.2d at 365. Here, we have pending, charged conduct that was clearly used to enhance Anderson’s sentence for the separate HTO conviction.

¶50 Again, I do not object to the consideration, as the majority puts it, of a “defendant’s prior criminal behavior” — at least to the extent that this “behavior” is evidenced by prior criminal convictions. I do object on double jeopardy grounds, however, to a subsequent prosecution on a charge that was previously used to enhance the sentence for a separate conviction. The potential for unfairness is simply too salient to assuage my concerns. And I cannot find solace, as the Witte Court does, by placing responsibility for double jeopardy with the legislature’s sentencing scheme. I dissent from the implied wholesale adoption of Witte as “controlling authority” for purposes of interpreting the Montana Constitution.

JUSTICE HUNT joins in the foregoing dissent.

      . In supplementing the original sentencing report, the probation officer added, among others, the following sentencing recommendations: (1) any suspended, probationary portion of the sentence was to be supervised; (2) as a condition of probation, Anderson was to be forbidden from using intoxicants or entering any place of business where alcohol was the chief item of sale; (3) as a further condition of probation, Anderson was to undergo, at his own expense, a substance abuse evaluation and comply with all treatment recommendations until discharged from the program; (4) Anderson was to submit to breath and/or body fluid testing for intoxicants; (5) Anderson was to submit to body fluid testing for illegal drugs; (6) Anderson was not to own, posseses, or be in control of any firearms or deadly weapons; (7) Anderson was not to associate with any convicted felons; and (8) while on probation, Anderson was to submit, upon reasonable cause, to a warrantless search of his person, vehicle, or residence.

      . A sentencing hearing was held on the HTO offense. At this hearing, the probation officer testified concerning his augmented sentencing recommendations. He requested that the court enhance Anderson’s penalty for the HTO offense due to the pending DUI and Probationary charges, of which he concluded Anderson was guilty based on the facts. He also acknowledged at this hearing that the additional recommended sanctions were substantial, but in his opinion justified because of Anderson’s presumptive guilt. The arresting officer on the DUI and Probationary charges also testified at the sentencing hearing, over the objections of defense counsel, to his impressions of Anderson based on the Defendant’s statements and conduct at the arrest scene. After evaluating Anderson’s pending DUI and Probationary charges in relation to his essentially “nil” prospects for “rehabilitation,” the court imposed a sentence that included a $1,000 fine, one year in jail with only thirty days of suspended sentence, and supervised probation.

      . In its reply brief, the State concedes as much: “The only aspect of this sentence which could arguably be attributed to [the] amended [sentencing] report was the court’s condition that Anderson be subject to the supervision of the Department of Corrections, Adult Probation and Parole, while serving the suspended portion of the sentence.”

      . Trial was held in Justice Court on the DUI and Probationary charges. The jury found Anderson guilty of the DUI offense, but acquitted him of the Probationary charge. Anderson was then sentenced for the DUI conviction. Anderson immediately filed a notice of appeal, and thereafter filed a motion in District Court to dismiss the DUI charge on the grounds of double jeopardy. The District Court granted his motion, finding that because Anderson received “a more severe sentence” on the HTO conviction due to consideration of the pending DUI and Probationary charges, he had already been effectively “punished, at least in part, for [those] charges ...”

      . First, in United States v. Ursery (1996), 518 U.S. 267, 292, 116 S.Ct. 2135, 2149, 135 L.Ed.2d 549, 571, the Court held that a civil forfeiture statute did not constitute “punishment” for purposes of the Double Jeopardy Clause. Then, in a stark turnabout, the Court largely “disavow[ed] the method of analysis used in United States v. Halper, 490 U.S. 435, 448, 104 L.Ed.2d 487, 109 S.Ct. 1892 (1989) ...’’Hudson v. United States (1997), 118 S.Ct. 488, 491, 139 L.Ed.2d 450, 457. It found Halper to be an “ill considered” and “unworkable” holding because it bypassed the necessary threshold finding that a civil proceeding effectively constituted “ ‘criminal’ punishment” within the meaning of the Double Jeopardy Clause. Hudson, 118 S.Ct. at 494, 139 L.Ed.2d at 460. This finding is necessary because “[t]he Clause protects only against the imposition of multiple criminal punishments for the same offense.”Hudson, 118 S.Ct. at 493, 139 L.Ed.2d at 458 (citing Helvering v. Mitchell (1938), 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922). Thus, in Hudson, it was held that administrative sanctions imposed by the Comptroller of Currency did not preclude a subsequent criminal prosecution under the Double Jeopardy Clause because the punishment was found by the Court to be civil in nature. Hudson, 118 S.Ct. at 495, 139 L.Ed.2d at 461-62.

      . Contemporary precedent like Witte notwithstanding, the United States Supreme Court has itself previously stated that it eschews “ ‘rigid, mechanical’ ” rules when interpreting the Double Jeopardy Clause. See Serfas, 420 U.S. at 390, 95 S.Ct. at 1064, 43 L.Ed.2d at 275, quoting Illinois v. Sommerville (1973), 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 432.

      . Moreover, I would agree with Justice Stevens’ dissent that “the safeguards in the Guidelines do not eliminate the double jeopardy violation.” Witte, 515 U.S. at 415 n.4, 115 S.Ct. at 2214 n.4, 132 L.Ed.2d at 374 n.4 (Stevens, J., concurring in part and dissenting in part).