State v. Fox, 2012 MT 172

Fox was federally convicted in 2008 for sexual exploitation of children and related offenses, receiving a 110-year federal sentence.
Prior to that, Fox was charged in Montana in 2007 with two counts of felony sexual assault (CS and HS).
The District Court dismissed Count II (HS) after determining federal conviction paralleled that charge and raised double jeopardy concerns; Count I (CS) remained.
In 2010 the District Court sentenced Fox to fifty years on Count I, fifty years on Count II, and five years for failing to register, with the fifty-year counts run concurrently and the five-year sentence consecutive to the state counts but concurrent with the federal sentence.
On appeal Fox argued the fifty-year sentence for the dismissed Count II was illegal and that the remaining Count I should have been dismissed due to double jeopardy; the State argued no bar to prosecution for CS.
The Montana Supreme Court remanded as to the illegal Count II sentence but affirmed the denial of dismissal for Count I, holding the Count II sentence needed correction while Count I could stand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the fifty-year sentence for the dismissed Count II illegal?	Fox contends the sentence on the dismissed charge violated double jeopardy.	State argues no double jeopardy bar and that the sentence stands.	Remand for correction of illegal Count II sentence.
Was the denial of Fox’s motion to dismiss the remaining sexual assault count correct?	Fox asserts double jeopardy barred the State charge for CS.	State asserts no bar because CS was a separate transaction/victim.	Affirmed denial of dismissal for Count I; remanded only as to Count II.

Neufeld, 351 Mont. 389 (2009 MT 235) (three-factor test; same transaction requires same victim)
Tadewaldt, 277 Mont. 261 (1996) (three-factor test for 46-11-504; same transaction)
Heafner, 356 Mont. 128 (2010 MT 87) (remand when a portion of sentence is illegal)