file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-183%20(03-20-01)%20Order.htm

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 99-183

2001 MT 31A

___________________________________

STATE OF MONTANA, )

)

Plaintiff and Respondent, )

)

v. ) O R D E R

)

WESLEY C. HUBBEL, ) 

)

Defendant and Appellant. )

___________________________________ 

On March 2, 2001, Respondent herein moved, pursuant to Rule 22, M.R.App.P., that this 

Court modify its recent opinion in State v. Hubbel, 2001 MT 31, to delete paragraph 23 of 

the opinion because the paragraph is mere dicta, it is not necessary to the Court's holding, 

and it contains an incorrect statement of the law. Respondent argues that if the paragraph 

is not stricken, the decision may be interpreted to grant the State a new ground for appeal 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-183%20(03-20-01)%20Order.htm (1 of 3)3/27/2007 11:13:28 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-183%20(03-20-01)%20Order.htm

in criminal cases. 

The paragraph in question reads as follows:

We note that the State makes the argument that criminal endangerment and negligent 

endangerment are not in fact lesser included offenses of aggravated assault. This issue, 

however, is one that should properly have been brought on cross appeal. The issue of 

whether these two offenses are lesser included offenses or not, has been waived by the 

State by failing to cross-appeal and we decline to reach this argument. 

Hubbel, ¶ 23. Respondent concedes that contrary to this statement, the State has no ability 

to challenge on appeal or to cross-appeal a district court's overruling of the State's 

objection to the lesser included offense instructions.

Although Appellant does not object to the merits of Respondent's motion, Appellant does 

object to the method with which the State is attempting to modify the opinion. Appellant 

argues that Rule 22, M.R.App.P., does not provide any authority for modifying an opinion 

in such a manner. Rather, any request to modify substantive portions of this Court's 

written opinions should only be considered through a Petition for Rehearing filed pursuant 

to Rule 34, M.R.App.P.

Appellant's objection is well taken. Nevertheless, we are not inclined to leave a 

concededly incorrect statement of the law in a published opinion for formality sake. 

Accordingly, we deem Respondent's Motion for Modification of Opinion to be a Petition 

for Rehearing. In addition, finding no objection from Appellant to Respondent's argument 

that the paragraph in question be stricken, we amend our opinion in State v. Hubbel, 2001 

MT 31, by striking paragraph 23. 

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail 

to counsel of record, to the State Reporter Publishing Company, to WestGroup and to the 

State Law Librarian.

DATED this 20th day of March, 2001.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-183%20(03-20-01)%20Order.htm (2 of 3)3/27/2007 11:13:28 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-183%20(03-20-01)%20Order.htm

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-183%20(03-20-01)%20Order.htm (3 of 3)3/27/2007 11:13:28 AM