DA 07 - 0055 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 319N ST ATE OF MONTANA, Plaintiff and Appellee, v. JOEL M. WHITE , a/k/aJOEL M. SEMINOLE , Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County

of Rosebud, Cause No. DC 1992 - 033 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker , Assistant Appellate Defender, Helena, M ontana For Appellee : Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney

General, Helena, Montana

Submitted on Briefs: November 8, 2007 Decided: December 5, 2007 Filed:

____ ______________________________________

Clerk December 5 20072

Justice James C. Nelson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following me morandum decision s hall not be cited as precedent. Its case title, the Supreme Court cause number, and disposition shall be included in this C ourt’s quarterly list o f noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Joe l M . White (also known as Joel M . Se minole ) committed felony criminal mischief o n November 7, 1992. H e was sentenced o n January 12 , 1994, by the District Court for the Sixteenth Judicial District, Rosebud County . H is sentence wassuspended. On December 7, 2001, the District Court determined that Seminole had violated the terms of his suspended sentence and revoked it . The District Court then resentenced Se minole . A portion of that sentence was suspended . He was discharged in February 2002 to begin servingthe suspended portion of hi s sentence. A pproximately one year later, the District Court again determined that Se minole had violated the terms of his suspended sentence. Se minole was again resentenced , and a portion of that sentence was suspended . H e was discharged to begin servin g the suspended portion of hissentence on June 24, 2005. The next day , S eminole stabbed his brother- in - law in the throat with a pocket knife and killed him. The State thereafter filed a petition to revoke Se minole’s suspended sentence . The District Court revoked thesuspended sentenceand resentenced Se minole on November 22, 2006 . ¶3 At the revocation hearing on November 22, 2006, Se minole’s counsel argued that his original sentence for criminal mischief was illegal. The D istrict Court determined3

that thi sw as not a matter that the court could “take up at this point in time.” O n appeal, Se minole argues that the original sentence given in 1994w as illegaland that the District Court abused its discretion in not correcting that sentence . S eminole maintainsthat the $480 in damages underlying his criminal mischief conviction falls short of the $500 threshold amount for felony criminal mischief. He contends, therefore, that the maximum sentence the original sentencing court could have imposed was six months. In response, the State contends that, at the time Se minole committed criminal mischief, the threshold amount for felony criminal mischief was $300. Hence, the State maintains that Se minole’s original sentence was not illegal. ¶4 “It is axiomatic that when deciding a case involving the commission of a crime or sentencing for a crime, we use the criminal statutes in effect at the time of the commission .” Dexter v. Shields , 2004 MT 159, ¶ 13, 322 Mont. 6, ¶ 13, 92 P.3d 1208, ¶ 13 (emphasis added) . S eminole c ommitted criminal mischief on November 7, 1992. Hence, the 1991 version of the criminal s tatutes applies . S ection 45 - 6 - 101(3), MCA (1991) , p laces the felony threshold at $300. Although the L egislature increased the threshold from $300 to $500 in 1993, s ee § 45 - 6 - 101(3), MCA (1993), the 1991 version of the statute applies to S eminole’s crime and sentence. Accordingly, Se minole’s claim that his original sentence for criminal mischi ef was illegal is without merit . Likewise, Se minole’s claim that the District Court abused its discretion in not correcting that sentence also is without merit. ¶5 H aving reviewed the record in this matter, we have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating R ules, as amended4

in 2003, which provides for me morandum opinions . It is manifest on the face of the briefs an d the record before us that Se minole ’s appeal is without merit. The legal issues are clearly controlled by settled Montana law. ¶6 Accordingly, the judgment of the D istrict Court is affirmed. /S/ JAMES C. NELSON We Concur: /S/ JOHN WARNER /S/ JIM RICE /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER