ROBERT AYRES DaSILVA, Jr.,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CVD 07-252
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert Ayres DaSilva, Jr., Pro Se; Deer Lodge, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana
Brant Light, Cascade County Attorney; Joel Thompson, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: March 19, 2008
Decided: April 22, 2008
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Appellant Robert Ayres DaSilva, Jr., (DaSilva) appeals the District Court’s order
denying his petition for postconviction relief. We affirm.
¶3 The State originally charged DaSilva with felony failure of sex offender to give notice
of address change and felony criminal possession of dangerous drugs, along with several
misdemeanor offenses. DaSilva entered into a binding plea agreement in which he agreed to
plead guilty to felony possession of dangerous drugs and to two misdemeanor charges. The
State, in turn, agreed to recommend a four-year commitment to the Department of
Corrections (DOC) “with all but time served suspended.” The State further agreed that its
recommended sentences for the misdemeanors would be served concurrently. The District
Court accepted DaSilva’s plea of guilty and sentenced DaSilva, as contemplated by the
agreement, to a four-year DOC commitment with all time suspended except for the 348 days
that DaSilva had served up to that point. DaSilva did not appeal.
¶4 The District Court revoked DaSilva’s suspended sentence, including the DOC
commitment, in February 2006, based on DaSilva’s violation of conditions of his probation
pertaining to employment, reporting, laws and conduct, and illegal drug use. The District
2
Court revoked the suspended portion of its earlier sentence and also gave DaSilva credit for
40 days of time served. DaSilva did not appeal his revocation.
¶5 DaSilva filed a petition for postconviction relief in February 2007 in which he alleged
that his original sentence violated the plea agreement and that “the suspended and
probationary sentences imposed simultaneously constituted double jeopardy.” The District
Court denied DaSilva’s petition on the grounds that his claims were time barred,
procedurally barred, and lacked merit. DaSilva appeals.
¶6 DaSilva bases most of his appeal on the alleged double jeopardy violation. DaSilva
further contends that the District Court’s original sentence did not conform with the terms of
the plea agreement. The State takes issue with both of DaSilva’s claims on appeal.
¶7 We review a district court’s denial of a petition for postconviction relief to determine
whether the court’s findings of fact are clearly erroneous and whether its conclusions of law
are correct. State v. Morgan,
. We
have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996
Internal Operating Rules, as amended in 2003, that provide for memorandum opinions. It is
manifest on the face of the briefs and record before us that settled Montana law controls the
outcome and that the district court correctly interpreted the law.
¶8 Affirmed.
/S/ BRIAN MORRIS
We Concur:
3
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
4
