IN THE SUPREME CCUFtT OF THE STATE C F MONTANA
STATE QF MONTANA,
Plaintiff and Respordent,
DAVID L. AZURE,
D e f d a n t and Appellant.
Appeal f m :
District Court of the Twelfth Judicial District,
Honorable Leonard Langen, Judge presiding.
Counsel of Record:
Sias , Ranstran and Graham, Chinook, Montana
Mike Greely, Attorney General, Helena, mntana
William M. Solem, County Attorney, Chinook, Montana
Sitmitt& on briefs:
October 12, 1978
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
Defendant appeals from the sentence imposed upon him
following his conviction of mitigated deliberate homicide in
the District Court of Phillips County.
This appeal marks the second time this case has been
before this Court.
See State v. Azure (1977),
573 P.2d 179, 34 St.Rep. 1569.
While we held the District Court
erred in not allowing defendant to withdraw his guilty plea to
deliberate homicide we remanded the case to the District Court for
Defendant was charged with killing Randy Lewis on June
23, 1976, and went on trial for deliberate homicide in April, 1978.
He was convicted of mitigated deliberate homicide.
On April 17, 1978, defendant received a 40-year sentence
providing that he would not be eligible for parole until he had
served one-half of his term, less good time allowances.
now appeals from the sentence imposed.
The sole issue on appeal is whether the imposition of a
sentence for conviction under statutes not in force at the time
the offense was committed is an - ex post facto application of the
law and therefore unconstitutional.
authority of State v. Gone (1978),
We hold that it is under
A law which eliminates or delays a defendant's parole
eligibility after the criminal offense has been committed is ex
post facto as applied to that defendant.
State v. Gone, supra;
State ex rel. Nelson v. Ellsworth (1963), 142 Mont. 14, 380 P.2d
886; Greenfield v. Scafati (D-Mass. 1967) 277 F.Supp. 644, aff'd
per curiam (1968), 390 U.S. 713.
The State agrees with defendant
that the applications of these statutes is - ex post facto in his
As in Gone, we strike the provision eliminating parole
eligibility until one-half of his term is served, less good
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,c-
\:-- 4 ,4
DAVID L. AZURE,
Defendant and Appellant.
O R D E R
IT IS ORDERED that the opinion in the above named cause,
decided on November 1, 1978, be amended as follows:
Please add "As so modified, the sentence is affirmed."
as the last paragraph of the opinion.
day of November, 1978.