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McEvoy v. State of Montana-Leroy Kirkegard

Supreme Court of Montana

July 11, 2013

BRUCE WAYNE McEVOY, Petitioner,
v.
STATE OF MONTANA-LEROY KIRKEGARD, WARDEN OF MONTANA STATE PRISON, Respondent.

ORDER

Petitioner Bruce Wayne McEvoy, by counsel (McEvoy), has filed a "Petition for Writ of Habeas Corpus or Other Appropriate Writ, " together with supporting brief. McEvoy is presently incarcerated at the Montana State Prison as a result of a sentence received in the Montana Twentieth Judicial District Court, Lake County, in Cause Number DC 87-91, following his conviction for misdemeanor assault, felony sexual intercourse without consent, and persistent felony offender. McEvoy was sentenced to 6 months in the county jail for the misdemeanor assault, 40 years at the Montana State Prison for the sexual intercourse without consent, and a consecutive 50 years at the Montana State Prison with 30 suspended, for the persistent felony offender (PFO) offense. He was declared ineligible for parole for 30 years.

McEvoy contends that he was wrongly sentenced for both the underlying felony and his PFO status, when the PFO sentence should have replaced the sentence for the underlying felony offense, and that therefore his sentence is facially invalid. He maintains that, with good time credit, he has already discharged the incarceration portion of his PFO sentence. McEvoy requests that we grant his writ of habeas corpus, order the Respondent to release him from custody, and vacate his sentence and order a new sentencing hearing before the Twentieth Judicial District Court.

We deem it appropriate to receive a response to McEvoy's petition from the State of Montana. Accordingly,

IT IS HEREBY ORDERED that the State of Montana shall file a response to McEvoy's petition within 20 days of the date of this Order.


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