State v. GardipeeState v. Gardipee
- Reporters:
- , , ,
- Before:
- Regnier, Cotter, Leaphart, Nelson, Rice
¶1 Melvin Gardipee (Gardipee) was convicted of family member assault, a felony, in violation of
¶2 The sole issue raised on appeal is whether the District Court abused its discretion when it allowed the State to file an Amended Information on the morning of the trial.
BACKGROUND
¶3 On December 21, 2001, the State filed an Information alleging that Melvin Gardipee committed five offenses, including the following:
COUNT IV: PARTNER MEMBER ASSAULT, A MISDEMEANOR, in violation of
MCA § 45-5-206(l)(a)(2001) . The above-named defendant purposely or knowingly caused bodily injury to a family member, namely his daughter, Valarie Gardipee.
With the permission of the District Court, the State filed an Amended Information on May 20, 2002, the morning of the trial. The Amended Information included the following:
COUNT IV (AMENDED): FAMILY MEMBER ASSAULT, A FELONY, in violation of
MCA § 45-5-206(l)(a)(2001) . The above-named defendant purposely or knowingly caused bodily injury to a family member, namely his daughter, Valarie Gardipee. The Defendant was convicted on one count of domestic abuse on December 4, 1988, and was convicted on two additional counts of domestic abuse on January 26, 1993.
¶4 A jury found Gardipee guilty of several of the offenses charged against him, including Count IV. Gardipee appeals the District Court‘s order permitting the State to file its Amended Information.
STANDARD OF REVIEW
¶5 Whether to allow the amendment of an information is left to the discretion of the trial court. State v. Abe, 1998 MT 206, ¶ 28, 290 Mont. 393, ¶ 28, 965 P.2d 882, ¶ 28. We review discretionary trial court rulings to determine whether there has been an abuse of discretion. Abe, ¶ 28.
DISCUSSION
¶6 Did the District Court abuse its discretion when it allowed the
¶7 Gardipee alleges the District Court erred by permitting the State to file the Amended Information on the morning of the trial. Amendments to the substance of an Information must be filed not less than five days before trial, but amendments to the form of an Information may be filed any time prior to verdict if the substantial rights of the defendant are not prejudiced.
¶8 Gardipee argues that his substantial rights were prejudiced by changing Count IV from a misdemeanor to a felony, which carries a much more severe penalty. Under Montana law, a first conviction of Partner or Family Member Assault constitutes a misdemeanor punishable by a fine from $100 to $1000 and imprisonment in the county jail for 24 hours to 1 year.
¶9 We hold that Gardipee‘s substantial rights were not violated when the District Court allowed the State to amend the Information on the day of the trial. The only difference between the first Information and the Amended Information was the recognition that pursuant to Montana statute, a persistent offender of the partner or family member assault statute receive an enhanced sentence for a third or subsequent conviction. The elements of the crime were not changed. Under the Amended Information, Gardipee was still charged under the same statute. Gardipee‘s substantial rights were not prejudiced by amendment of the Information to reflect the statutorily-mandated sentencing range for a repeat offender.
¶10 Affirmed.
JUSTICES COTTER, LEAPHART, NELSON and RICE concur.