No. 12304 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA ex rel. CHING WENKE LINTZ, 

Petitioner, 

DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT 

OF THE STATE OF MONTANPs, 

Respondent. 

@r3-g Pnal Proceedings. 

Counsel of Record : 

For Appellant : 

David Astle argued, Kalispell, Montana 59901. 

Patrick Springer argued, Kalispell, Montana 59901. 

For Respondent : 

H. James Oleson, argued, County Attorney, Kalispell, 

Montana 59901. 

Robert t. Woodahl, Attorney General, Helena, Montzna 5960l. 

Submitted: June 21, 1972 

Decided : $UN 2 9 4972 

Filed : 
Per Curiam: 

This is an original proceeding brought by relator as a 

petition for a post-conviction hearing, Upon hearing the petition 

ex parte, this Court granted an order to show cause directed to 

the district court of the eleventh judicial district, the Hon. 

Robert S. Iceller, presiding. Return was made, including a transcript of hearing before the district court. A motion to quash 

was made and oral argument had. 

Briefly, petitioner, 21 years of age, was arrested for 

the criminal sale of dangerous drugs, a felony. Upon arraignment he plead not guilty, subsequently changed to a guilty plea. 

A hearing was held on "mitigation or aggravation of sentence'' 

on May 17, 1972. Defendant was granted a deferred imposition 

of sentence for a period of three years in an order setting forth 

what we will term "usual conditions''. Defendant had orally 

agreed to cooperate with the court and law enforcement officials. 

In his arrest and the subsequent investigation, defendant had 

voluntarily led officers to other drugs, marihuana, cocaine and 

P.C.P. IIe had sold twelve lids of marihuana. He claimed the 

cache of other drugs belonged to one Bristow. 

At the presentence hearing, under oath, defendant told 

one story, the details of which are not of great importance here, 

but which were believed by the trial court. At the subsequent 

trial of the heretofore mentioned Bristow, defendant told a 

different story which convinced the court that he had previously 

perjured himself. He then refused to answer for fear of further 

incriminating himself---something that he did not raise at the 

presentence hearing. The trial judge in his return characterizes 

defendant's testimony at the Bristow trial as a "farce, a sham"; 

and, that his lack of memory was a "palpable lie" and he made a 

I I mockery" of the court. 
A reading of the transcript by this Court reveals the 

characLerizations of the trial court to be apt. The defendant 

had clearly deceived and misrepresented matters to obtain a 

deferred imposition of sentence. A petition for revocation of 

chat deferred imposition of sentence was made, a hearing was held, 

and the statutory presumption of a deferred imposition of sencence was clearly rebutted. 

The trial court sentenced defendant to fifteen years. 

We are informed that an appeal is being taken so that 

errors, if any, may be reviewed in the normal appeal process. 

After reviewing the record, we do not find any abuse of discretion sufficient for this Court to take original jurisdiction 

at this time. Accordingly, the order to show cause previously 

granted is quashed. 

Relator in his petition also seeks relief by way of stay 

of execution of the sentence, pending appeal. We deny that relief 

at this time without prejudice.