No. 04-874 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2007 MT 103 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

KEVIN GENE TOMASKIE, 

 Defendant and Appellant. 

APPEAL FROM: The District Court of the Ninth Judicial District, 

In and For the County of Toole, Cause No. DC-2003-028, 

Honorable Marc G. Buyske, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 William E. Hunt, Jr., Hunt Law Firm, Shelby, Montana 

For Respondent: 

 Honorable Mike McGrath, Attorney General; Pamela P. Collins, 

 Assistant Attorney General, Helena, Montana 

 Merle Raph, County Attorney, Shelby, Montana 

 Submitted on Briefs: April 3, 2007 

 Decided: April 25, 2007 

Filed: 

__________________________________________ 

Clerk 
Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Kevin Gene Tomaskie (Tomaskie) appeals from a judgment entered in the Ninth 

Judicial District Court, Toole County, convicting him of the offense of criminal 

possession of dangerous drugs (marijuana), a felony. We reverse and remand. 

¶2 On July 10, 2003, the State filed an Information charging Tomaskie with criminal 

possession of dangerous drugs (marijuana), a felony. Though he was alleged to have 

been in possession of less than sixty grams of marijuana, the Information charged 

Tomaskie with a felony alleging that he had previously been convicted of the offense of 

criminal possession of marijuana. Section 45-9-102(2), MCA, provides that a second 

conviction for possession of marijuana may be charged as a felony. In 1995 Tomaskie 

had been convicted in the Havre City Court of the misdemeanor offense of possession of 

marijuana. 

¶3 In March of 2004 the District Court accepted Tomaskie’s plea of guilty on the 

felony charge, ordered a pre-sentence report (PSI) and postponed sentencing pending the 

receipt of the PSI. When the PSI was prepared, it showed that Tomaskie’s 1995 

marijuana possession conviction had resulted in the imposition of a one-year deferred 

imposition of sentence. 

¶4 Prior to sentencing on the Toole County felony charge in question here, Tomaskie 

contacted the Havre City Court. As he had fulfilled the conditions of the deferred 

imposition of sentence on the 1995 conviction, the Havre City Court dismissed the 

charge. Tomaskie then moved the Toole County District Court to amend the charge in 

this case reducing it from a felony to a misdemeanor. Tomaskie argued that under § 45-

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9-102(2), MCA, possession of less than sixty grams of marijuana can be charged as a 

felony only if it is the defendant’s second or subsequent conviction; and, as the previous 

charge had been dismissed, the offense charged in Toole County was no longer his 

second conviction. The District Court denied Tomaskie’s motion. The District Court 

reasoned that the prior conviction remained of record at the time the Toole County charge 

was filed and at the time Tomaskie pled guilty to that charge. On October 21, 2004, the 

District Court deferred the imposition of sentence for three years, on conditions. This 

appeal followed. 

¶5 The issue presented is whether the District Court erred in denying Tomaskie’s 

motion to amend the charge and imposing a felony sentence, rather than a misdemeanor 

sentence. 

¶6 The relevant facts are not in dispute. When the parties have raised no factual 

disputes, this Court determines only whether the district court correctly interpreted the 

law. State v. Bowles, 284 Mont. 490, 492, 947 P.2d 52, 53 (1997). 

¶7 Tomaskie argues that because his prior conviction in the Havre City Court was 

dismissed before he was convicted of the Toole County charge, the Toole County charge 

must be reduced from a felony to a misdemeanor. The State counters that such 

amendment is not required after the Toole County District Court accepted Tomaskie’s 

guilty plea. The State reasons that, since the prior Havre conviction existed at the time 

Tomaskie pled guilty to the Toole County offense, the District Court was correct in 

concluding that Tomaskie was convicted at that point and the court correctly denied the 

motion to amend the charge to a misdemeanor. 

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¶8 A felony is defined as: 

 “Felony” means an offense in which the sentence imposed upon 

conviction is death or imprisonment in a state prison for a term exceeding 1 

year. 

Section 45-2-101(23), MCA. 

¶9 A conviction is defined as: 

 “Conviction” means a judgment or sentence entered upon a guilty or 

nolo contendere plea or upon a verdict or finding of guilty rendered by a 

legally constituted jury or by a court of competent jurisdiction authorized to 

try the case without a jury. 

Section 46-1-202(7), MCA. 

¶10 A judgment is defined as: 

 “Judgment” means an adjudication by a court that the defendant is 

guilty or not guilty, and if the adjudication is that the defendant is guilty, it 

includes the sentence pronounced by the court. 

Section 46-1-202(11), MCA. 

¶11 A sentence is defined as: 

 “Sentence” means the judicial disposition of a criminal proceeding 

upon a plea of guilty or nolo contendere or upon a verdict or finding of 

guilty. 

Section 46-1-202(25), MCA. 

¶12 Thus, in order for there to be a conviction, a sentence must be imposed. In this 

case, when Tomaskie obtained a dismissal of the Havre City Court charge, he had not 

been sentenced on the Toole County charge. Therefore, he had not yet been convicted in 

the Toole County case. The District Court erred in determining that when Tomaskie pled 

guilty he had been convicted. A conviction does not occur until sentence is imposed. 

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¶13 As to the Havre City Court charge, the imposition of a deferred sentence does 

constitute a conviction and final judgment. Davis v. State, 2004 MT 112, ¶ 16, 321 

Mont. 118, ¶ 16, 88 P.3d 1285, ¶ 16. However, when the judgment is for a deferred 

imposition of sentence, it may be set aside. Section 46-18-204, MCA, provides: 

 Whenever the court has deferred the imposition of sentence and after 

termination of the time period during which imposition of sentence has 

been deferred, upon motion of the court, the defendant, or the defendant’s 

attorney, the court may allow the defendant to withdraw a plea of guilty or 

nolo contendere or may strike the verdict of guilty from the record and 

order that the charge or charges against the defendant be dismissed. A copy 

of the order of dismissal must be sent to the prosecutor and the department 

of justice, accompanied by a form prepared by the department of justice and 

containing identifying information about the defendant. After the charge is 

dismissed, all records and data relating to the charge are confidential 

criminal justice information, as defined in 44-5-103, and public access to 

the information may only be obtained by district court order upon good 

cause shown. 

Accordingly, when a sentence has been deferred and the period of deferment has expired, 

the court may dismiss the charges. 

¶14 Section 45-9-102(2), MCA, provides: 

 A person convicted of criminal possession of marijuana or its 

derivatives in an amount the aggregate weight of which does not exceed 60 

grams of marijuana or 1 gram of hashish is, for the first offense, guilty of a 

misdemeanor and shall be punished by a fine of not less than $100 or more 

than $500 and by imprisonment in the county jail for not more than 6 

months. The minimum fine must be imposed as a condition of a suspended 

or deferred sentence. A person convicted of a second or subsequent offense 

under this subsection is punishable by a fine not to exceed $1,000 or by 

imprisonment in the county jail for a term not to exceed 1 year or in the 

state prison for a term not to exceed 3 years or by both. 

¶15 Tomaskie was not convicted of a second or subsequent offense under § 45-9-

102(2), MCA, in Toole County because before those proceedings resulted in a conviction 

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(i.e., before sentence was imposed), he had taken the affirmative steps required to have 

the prior Havre City Court conviction dismissed. 1

 

¶16 In State v. Gladue, 209 Mont. 235, 679 P.2d 1256 (1984), this Court held that if 

the charges for a previous offense resulted in a deferred sentence, and such charges have 

since been dismissed, the defendant has no prior predicate conviction as contemplated by 

the persistent felony offender statute and such defendant must be sentenced accordingly. 

Gladue, 209 Mont. at 239-40, 679 P.2d at 1259. We conclude that the reasoning in 

Gladue applies to Tomaskie’s charge of possession under § 45-9-102, MCA. The Havre 

City Court conviction for the previous offense of possession of less than sixty grams of 

marijuana was dismissed prior to the time Tomaskie was sentenced and convicted in 

Toole County. Thus, at the time of his Toole County sentencing, Tomaskie had no prior 

conviction as contemplated by § 45-9-102(2), MCA, and he should not have been 

sentenced as a felon. 

¶17 This case is distinguishable from State v. Lorash, 238 Mont. 345, 777 P.2d 884 

(1989), cited by the State in support of its argument. Lorash, who had previously 

received a deferred sentence, made no attempt to have the charges in the previous case 

dismissed before he was sentenced on a subsequent charge. Therefore, the previous 

conviction was still in place when Lorash was convicted on the later charge, and he was 

properly denied a second deferred sentence. Lorash, 238 Mont. at 347, 777 P.2d at 885-

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The State does not argue that it was Tomaskie’s obligation to assure that a copy 

of the order of dismissal was sent to the prosecutor and the department of justice, 

accompanied by a form containing identifying information about him.

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86. In this case, Tomaskie did take the affirmative step of having his previous conviction 

dismissed before being sentenced and convicted of the subsequent offense. 

¶18 Tomaskie’s situation also differs from State v. Wheeler, 285 Mont. 400, 948 P.2d 

698 (1997), in which Wheeler, who was charged with fifth offense felony DUI, pled 

guilty to the felony charge and then, before sentencing, moved to expunge the prior DUI 

convictions from the State of Colorado. We held that, in pleading guilty, Wheeler 

waived all nonjurisdictional claims, including any claim that the prior Colorado 

convictions should be expunged. We reasoned that “[t]he number of previous 

convictions clearly came into play both in the charge filed against Wheeler and in his 

plea agreement. It cannot correctly be said that the Colorado convictions were relevant 

only at sentencing.” Wheeler, 285 Mont. at 403, 948 P.2d at 700. In other words, 

Wheeler’s basis for seeking expungement of the Colorado convictions was extant at the 

time the Montana charge was filed. If there was merit to Wheeler’s expungement 

argument, the district court would have had to grant a timely motion to dismiss the felony 

charge. In contrast, when Tomaskie entered his plea to the felony possession charge, he 

had no basis for challenging the felony nature of the charge since, at that time, his Havre 

City Court conviction was still valid. His plea of guilty did not constitute a waiver 

because there was nothing to waive at that juncture. It was only after his plea that his 

Havre City Court charge was dismissed. Once the Havre charge was dismissed, he then 

had a basis for arguing that the District Court no longer had the predicate offense 

required for imposing a felony sentence. 

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¶19 Finally, Tomaskie also argues that this case must be dismissed because the offense 

became a misdemeanor when the Havre City Court charge was dismissed and a district 

court lacks subject matter jurisdiction over misdemeanor offenses. 

¶20 Section 45-1-201(1), MCA, provides: 

 For the determination of the court’s jurisdiction at the commencement of the action and for the determination of the commencement of the 

period of limitations, the offense shall be designated a felony or 

misdemeanor based upon the maximum potential sentence which could be 

imposed by statute. 

¶21 Tomaskie was charged with a felony offense at the commencement of the Toole 

County action, and the District Court acquired jurisdiction over this case. 

¶22 The applicable general rule is: 

[T]he jurisdiction of a court depends on the state of facts existing at the 

time it is invoked, and once jurisdiction of the person and subject matter 

attaches it continues until final disposition or determination of the case. 

22 C.J.S. Criminal Law § 222 (2006) (citations omitted). 

¶23 In State v. Shults, 169 Mont. 33, 544 P.2d 817 (1976), the defendant was 

originally charged with a felony in district court. Upon arraignment the State moved to 

amend the charge to a lesser included misdemeanor, the motion was granted and the 

district court imposed a misdemeanor sentence. Shults appealed, arguing that when the 

charge was amended to a misdemeanor the district court lost jurisdiction. On appeal, we 

noted that if the charge had been filed originally as a misdemeanor, the district court 

would have had no subject matter jurisdiction. We held, however, that where a district 

court’s jurisdiction was originally invoked by a felony charge, district court subject 

matter jurisdiction was not lost even though Shults was convicted of a misdemeanor. 

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¶24 This case is similar to Shults. When the Information was filed, Tomaskie’s prior 

conviction had not been dismissed and he was thus properly charged with a felony in 

District Court. When the Havre City Court dismissed Tomaskie’s previous conviction, 

the ability to impose a felony sentence on Tomaskie was lost. However, the District 

Court retained jurisdiction. See Shults, 169 Mont. at 36, 544 P.2d at 819. 

¶25 Reversed and remanded for re-sentencing consistent with this Opinion. 

 /S/ W. WILLIAM LEAPHART 

We concur: 

/S/ KARLA M. GRAY 

/S/ PATRICIA COTTER 

/S/ JAMES C. NELSON 

/S/ BRIAN MORRIS 

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Justice John Warner dissents. 

¶26 I must dissent. Tomaskie waived his right to have the charge amended when he 

plead guilty to second offense possession of marijuana. 

¶27 I disagree with the Court that this case is distinguishable from Wheeler. The same 

issue is presented here, and the result must be the same. Wheeler was charged with 

driving under the influence of alcohol (DUI), fifth offense, a felony. To be sentenced as 

a felony, a DUI must be a fourth or subsequent offense. Section 61-8-714(4), MCA 

(1995). Wheeler moved to dismiss the charge. The district court denied his motion. 

Wheeler then plead guilty without reserving his right to appeal any pre-plea adverse 

rulings. After accepting the plea, the court ordered a PSI. After the PSI was filed, and 

before sentencing, Wheeler moved to expunge two of the alleged prior convictions. The 

district court denied Wheeler’s motion and sentenced him according to the plea 

agreement. 

¶28 On appeal, this Court affirmed the district court. We held: 

[a]fter a criminal defendant pleads guilty and thereby admits that he is 

guilty of the offense charged, he may only attack the voluntary and 

intelligent character of his plea and may not raise independent claims 

relating to prior deprivation of his constitutional rights. A voluntary and 

intelligent plea of guilty constitutes a waiver of non-jurisdictional defects 

and defenses. 

Wheeler, 285 Mont. at 402, 948 P.2d at 699 (citing State v. Hilton, 183 Mont. 13, 18, 597 

P.2d 1171, 1174 (1979), and Hagen v. State, 265 Mont. 31, 35, 873 P.2d 1385, 1387 

(1994) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608 (1973)). 

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¶29 In Hagan, we defined jurisdictional claims in the context of waiver as set forth in 

United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992). Hagan, 265 Mont. at 36, 873 

P.2d at 1388. Cortez limited jurisdictional claims to “those cases in which the district 

court could determine that the government lacked the power to bring the indictment at the 

time of accepting the guilty plea from the face of the indictment or from the record.” 

Cortez, 973 F.2d at 767 (emphasis in original). 

¶30 At the time that Tomaskie was charged, and at the time he plead guilty, his prior 

conviction of possession of marijuana had not been dismissed and thus the State had the 

power to bring the felony charge. Therefore, Tomaskie’s claim is non-jurisdictional. 

¶31 Contrary to the Court’s opinion, Tomaskie was in exactly the same position that 

Wheeler was in before and after he plead guilty. Up to and at the time of their guilty 

pleas, the predicate offenses were subject to being invalidated as previous offenses upon 

which the current felony charges were based. After they plead guilty, both Tomaskie and 

Wheeler had admitted the offenses with which they were charged, each of which required 

previous convictions of a like offense. Neither reserved the right to appeal. Wheeler was 

denied the opportunity to challenge the felony nature of the subsequent charge on the 

basis that he had waived all non-jurisdictional defects in that charge. However, we have 

sustained Tomaskie’s challenge to the felony nature of a charge to which he plead guilty. 

Wheeler cannot be distinguished, as the Court does at ¶ 18, by simply saying that at the 

time Tomaskie plead guilty he had no basis to challenge the felony nature of the charge. 

When he plead guilty as charged, Tomaskie waived the right to later have the Havre City 

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Court conviction “not count” as a second possession conviction. After he plead guilty, 

Tomaskie was in the same position as Wheeler. 

¶32 For several years before and up to the time he plead guilty in this case, Tomaskie 

could have taken the necessary steps to have the Havre City Court charge dismissed. 

Wheeler also had up to the time he plead guilty to attack the predicate DUI charges. Just 

like Wheeler, when Tomaskie plead guilty he waived his right to challenge all nonjurisdictional defects in the charge. 

¶33 Tomaskie has not challenged the voluntary nature of his plea on appeal, nor has he 

argued that his counsel was ineffective. The District Court did not err in denying his 

motion to amend the charge from a felony to a misdemeanor and the judgment should be 

affirmed. I dissent. 

 /S/ JOHN WARNER 

Justice Jim Rice joins in the foregoing dissent. 

 /S/ JIM RICE 

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