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No. 00-743 IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT 198

STATE OF MONTANA, Plaintiff and Respondent,

v. CHARLENE BLACKWELL, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Honorable Marge Johnson, Judge Presiding COUNSEL OF RECORD: For Appellant: Carl B. Jensen, Jr., Public Defender's Office, Great Falls, Montana For Respondent: Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana Brant Light, County Attorney, Great Falls, Montana Submitted on Briefs: April 26, 2001 Decided: September 27, 2001

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__________________________________________ Clerk Chief Justice Karla M. Gray delivered the Opinion of the Court. ¶1 On October 8, 1999, the State of Montana charged Charlene Blackwell by Information in the Eighth Judicial District Court, Cascade County, with four traffic-related offenses, including felony driving under the influence of alcohol (DUI). After rejecting an initial plea bargain offer, Blackwell ultimately pled guilty to the DUI offense, pursuant to a plea agreement, on the day set for trial. On March 6, 2000, the District Court entered an Order assessing Blackwell one-half of the costs of the jury, which included a clerk's salary for one day. The court sentenced Blackwell on September 11, 2000, and entered judgment accordingly. Blackwell appeals from the Order assessing costs. We reverse. ¶2 The issue on appeal is whether the District Court erred in assessing certain costs against Blackwell pursuant to a local court rule. ¶3 Local Rule 11E in the District Court states that, in the event "a jury trial setting is vacated pursuant to settlement or a motion within 5 days of trial, the parties or any of them may be assessed jury costs incurred, including a clerk's salary for one day." Over Blackwell's counsel's objections, the District Court assessed one-half of the total costs of $641.20 to the State and one-half to Blackwell in its March 6, 2000, Order. The subsequent Judgment of Conviction and Sentencing Order does not contain the assessment. ¶4 Blackwell contends assessment of the jury costs is a penalty which could be rendered only in compliance with sentencing statutes, that sentencing statutes were not applied here and that, in any event, the sentencing statutes do not permit assessment of part of a clerk's salary. She also contends that the assessment of such costs against an indigent defendant, pursuant to the sentencing statutes, requires a hearing on ability to pay and that the District Court did not hold such a hearing. For these reasons, she contends the jury-related costs assessment portion of her sentence is illegal. ¶5 The State argues, on the other hand, that this is not a sentencing issue because the

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/S/ KARLA M. GRAY
We concur: /S/ JIM RICE /S/ JAMES C. NELSON /S/ JIM REGNIER /S/ W. WILLIAM LEAPHART

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