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State v. Krantz3/1/1990
there would be no problem here. However, the legislature inserted the word "knowingly," as an element in the use of the gun. This element requires a fact-finding, and a fact-finding can only be done in criminal cases by a jury. In effect, the use of a gun is a separate offense, for which every element must be proved beyond a reasonable doubt. In Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Because of the insertion of the word "knowingly," we should in effect overrule State v. Madera (1983), 206 Mont. 140, 670 P.2d 552; State v. Davison (1980), 188 Mont. 432, 614 P.2d 489; and not regard the holding by the Court of Appeals for the Ninth Circuit in LaMere v. Risley (9th Cir. 1987), 827 F.2d 622
There is an additional factor why we should require fact-finding by the jury with respect to the use of a firearm There is a recidivist provision in § 46-18-221, MCA, as follows:
"(2) A person convicted of a second or subsequent offense under this section shall, in addition to the punishment provided for the commission of the present offense, be sentenced to a term of imprisonment in the state prison of not less than 4 years or more than 20 years, except as provided in 46-18-222. For the purpose of this subsection, the following persons shall be considered to have been convicted of a previous offense under this section:
"(a) a person who has previously been convicted of an offense, committed on a different occasion than the present offense, under 18 U.S.C. § 924(c); and
"(b) a person who has previously been convicted of an offense in this or another state, committed on a different occasion than the present offense, during the commission of which he knowingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon
"(3) The imposition or execution of the minimum sentence prescribed by this section may not be deferred or suspended, except as provided in 46-18-222
"(4) An additional sentence prescribed by this section shall run consecutively to the sentence provided for the offense."
The following factors, therefore, should require us to find that guntoting in the commission of a crime is a separate issue or offense which must be charged in the information and found by the jury:
(1) The forbidden act of brandishing a firearm
(2) The forbidden act done knowingly
(3) The punishment being separate and mandatory
(4) Additional penalties for recidivism
I would, therefore, affirm the conviction of Krantz for the felony offense but reverse the enhancement of his sentence that relates to the use of a firearm for the reason that the separate offense was not separately charged and found by the jury. There are Due Process and Sixth Amendment implications here not met in our statute
JUSTICE HUNT concurs with JUSTICE SHEEHY
Page 1 2 3 4 5 6 7 8 9 Montana Personal Injury Attorneys
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