No, 12195 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

BRUCE DAVID FISSETTE, 

Defendant and Appellant, 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W, Lessley, Judge presiding. 

Counsel of Record : 

For Appellant : 

Brown and Gilbert, Bozeman, Montana, 

William E. Gilbert argued, Bozeman, Montana, 

For Respondent : 

Hon, Robert L. Woodahl, Attorney General, Helena, 

Montana. 

David V, Gliko, Assistant Attorney General, argued, 

Helena, Montana, 

Thomas A. Olson, County Attorney, Bozeman, Montana. 

Thomas D, Gai, Deputy County Attorney, appeared, 

Bozeman, Montana. 

Submitted: April 25, 1972 

Decided: JllL 2 O 1972. 

Filed: ;jhl'~ 2 14 1972 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant, Bruce David Fissette, was tried in the justice 

of the peace court in Gallatin County, Montana. Following a jury 

verdict of "guilty" of the misdemeanor crime of "physical control of vehicle while under the influence of intoxicating llquor", 

he was sentenced by the justice of the peace to pay a fine of 

$210 * 

Defendant appealed this judgment of conviction to the 

district court of the eighteenth judicial district, county of 

Gallatin and after a trial de novo the jury found defendant 

guilty. The court entered judgment on the verdict of a $500 

fine and a jail sentence of six months, with all but thirty 

days suspended. Defendant appeals from the final judgment, 

There is but one issue presented on appeal: Was it error 

for the district court to increase the sentence or punishment 

after trial de novo in the district court under the facts of 

this case? 

The United States Supreme Court decision relied on by 

defendant, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 

2072, 23 L ed 2d 656, 669, states: 

"Due process of law, then, requires 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. And 

since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right 

to appeal or collaterally attack his first conviction, 

due process also requires that a defendant be freed 

of apprehension of such a retaliatory motivation 

on the part of the sentencing judge. 

I I In order to assure the absence of such a motivation, 

we have concluded that whenever a judge imposes a 

more severe sentence - - uDon a defendant after a new 

trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon 

objective information concerning identifiable conduct 

on the part of the defendant occurring after the time 

of the original 'sentencing proceeding.' And the 
factual data upon which the increased sentence 

is based must be made part of the recrod, so 

that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." 

(Emphasis added ) . 

1 t Pearce was not a de novo" cause in the context we are 

speaking of de novo in this opinion, yet the language does not 

exclude a "de novo" case when it speaks in terms of a new trial. 

It Defendant argues that all trials "anew" are de novo", viewed 

literally. 

The United States Supreme Court in Colten v. Kentucky, 

U.S. P S.Ct. 9 L ed 2d , No, 71-404, 

(Kentucky Court of Appeals, Decided June 12, 1972), decided the 

issue presented here, 

Colten involves a two-tier system, the same as our justice 

and district court system and in Kentucky appeal from the lower 

court is a matter of right and the trial on appeal is de novo, as 

it is in Montana. 

In discussing the issues in Colten the United States 

Supreme Court said: 

"Colten rightly reads Pearce to forbid, following a 

successful appeal and reconviction, the imposition 

of a greater punishmentthan was imposed after the 

first trial, absent specified findings that have not 

been made here. He insists that the Pearce rule is 

applicable here and that there is no mnt difference between the Pearce model and the Kentucky twotier trial de novo system. Both, he asserts, involve 

reconviction and resentencing, both provide the convicted defendant with the right to 'appeal' and in 

both---even thouah under the Kentuckv scheme the 

I appeal' is in rGality a trial de noGo---a penalty for 

the same crime is fixed twice, with the same potential 

for an increased penalty upon7 a successful 'appeal1. 

"~ut Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater 

sentence. The court was there concerned with two dedefendants who, after their convictions had been set 

aside on appeal, were reconvicted for the same ottenses 

and sentenced to longer prison terms. In one case the 

term was increased from 10 to 25 years, Positing; that 

a more severe penalty after reconviction would violate 

due process of law if imposed as purposeful punishment 

for having successfully appealed,the court concluded 
that such untoward sentences occurred with sufficient frequency to warrant the imposition of a 

prophylactic rule to ensure ' that vindictiveness 

against a defendant for having successfully attacked his first conviction * * * [would] play no 

part in the sentence he receives after a new trial * * *' and to ensure that the apprehension of such 

I vindictiveness does not deter a defendant's exercise of the right to appeal or collaterally attack 

his first conviction * * *' 395 U.S., at 725. 

"Our view of the Kentucky two-tier system of administering criminal justice, however, does not 

lead us to believe, and there is nothing in the 

record or presented in the briefs to show, that the 

hazard of being penalized for seeking a new trial, 

which underlay the holding of Pearce, also inheres 

in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's 

inferior courts would be deterred from seeking a 

second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to 

exist in Pearce, is not inherent in the Kentucky 

two-tier system. 

"We note first the obvious: that the court which 

conducted Colten's trial and imposed the final 

sentence was not the court with whose work Colten 

was sufficiently dissatisfied to seek a different 

result on appeal; and it is not the court that is 

asked to do over what it thought it had already done 

correctly. Nor is the de novo court even asked to 

find error in another court's work. Rather, the 

Kentucky court in which Colten had the unrestricted 

right to have a new trial was merely asked to accord 

the same trial, under the same rules and procedures, 

available to defendants whose cases are begun in that 

court in the first instance. It would also appear 

that however understandably a court of general jurisdiction might feel that the defendant who has had a 

due process trial ought to be satisfied with it, the 

de novo court in the two-tier system is much more likely meet the attitude of the Kentucky Court of Appeals 

in this case when it stated that 'the inferior courts are 

not designed or equipped to conduct error-free trials, 

or to ensure full recognition of constitutional freedoms. They are courts of convenience, to provide 

speedy and inexpensive means of disposition of charges 

of minor offenses.' Colten v. Commonwealth, 467 S,W.2d 

374, 379 (Ky. 1971). We see no reason, and none is 

offered, to assume that the de novo court will deal any 

more strictly with those who insist on a trial in the 

superior court after conviction in the Quarterly Court 

than it would with those defendants whose cases are 

filed originally in the superior court and who choose 

to put the State to its proof in a trial subject to 

constitutional guarantees, 

I I It is suggested, however, that the sentencing strictures 

imposed by Pearce are essential in order to minimize an 
asserted unfairness to criminal defendants who 

must endure a trial in an inferior court with 

less than adequate protections in order to secure 

a trial comporting completely with constitutional 

guarantees. We are not persuaded, however, that 

the Kentucky arrangement for dealing with the less 

serious offenses disadvantages defendants any more 

or any less than trials conducted in a court of 

general jurisdiction in the first instance, as long 

as the latter are always available. Proceedings 

in the inferior courts are simple and speedy, and, 

if the results in Colten's case are any evidence, 

the penalty is not characteristically severe. Such 

proceedings offer a defendant the opportunity to 

learn about the prosecution's case and, if he chooses, 

he need not reveal his own. He may also plead guilty 

without a trial and promptly secure a de novo trial 

in a court of general criminal jurisdiction, He 

cannot, and will not, face the realistic threat of a 

prison sentence in the inferior court without having 

the help of counsel, whose advice will also be available 

in determining whether to seek a new trial, with the 

slate wiped clean, or to accept the penalty imposed 

by the inferior court. The State has no such options. 

Should it not prevail in the lower court, the case is 

terminated, whereas the defendant has the choice of 

beginning anew. In reality his choices are to accept 

the decision of the judge and the sentence imposed in 

the inferior court or to reject what in effect is no 

more than an offer in settlement of his case and seek 

the judgment of judge or jury in the superior court, 

with sentence to be determined by the full record 

made in that court. We cannot say that the Kentucky 

trial de novo system, as such, is unconstitutional 

or that it presents hazards warranting the restraints 

called for in North Carolina v. Pearce, particularly 

since such restraints might, to the detriment of both 

defendant and State, diminish the likelihood that inZerior courts would impose lenient sentences whose efkect would be to limit the discretion ot a superior 

court judge or jury if the defendant is retried and 

found guilty*"(~mphasis added) 

The judgment of the district court is affirmed. 
Associate Justices.