Opinion
DA 21-0206
01-11-2022
STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL HENRY DITTON, Defendant and Appellant.
ORDER
Representing himself, Appellant Michael Henry Ditton (Ditton) has filed a Petition for Rehearing of this Court's Memorandum Opinion issued on December 7, 2021, which affirmed the Eighteenth Judicial District Court's Order affirming the Municipal Court's denial of Ditton's motion to dismiss his charge of "Operation of [a] Noncommercial Vehicle by Person with Alcohol Concentration of 0.08 or more[.]" State v. Ditton, No. DA 21-0206, 2021 MT 310N, 2021 Mont. LEXIS 988.
Under M. R. App. P. 20, this Court seldom grants petitions for rehearing. The Rule makes clear that this Court will entertain a petition for rehearing on very limited grounds. Specifically, this Court will consider a petition for rehearing only if the opinion "overlooked some fact material to the decision/' if the opinion "overlooked some question presented by counsel that would have proven decisive to the case," or if the "decision conflicts with a statute or controlling decision not addressed" by this Court. M. R. App. P. 20(a)(i)-(iii).
Ditton's petition raises multiple issues. He first argues that this Court's written memorandum opinion violated § 3-2-601, MCA (requiring the justices of this Court to affix their signatures to all written decisions), on the grounds that the decision was signed by only four of the five justices on the Court's panel and contained "no written separate concurrence or dissenting opinion of the fifth justice." However, no statutory violation 1 occurred. Montana Supreme Court Internal Operating Rule 3(d) requires that only "four or more justices [on a five-justice panel] reach a conclusion" in each case. As required, four of the five justices on the panel reached a conclusion and signed the memorandum opinion in Ditton's case, with the fifth justice opting for recusal due to a potential conflict of interest.
Next, Ditton's petition argues that this Court's holding that no written probable cause determination was required in his case violates M. R. Civ. P. 52(a)(1), which requires that, in general, "the court must find the facts specially and state its conclusions of law separately." In support, Ditton cites to In re Marriage of Banka, 2009 MT 33, ¶ 10, 349 Mont. 193, 201 P.3d 830, which notes that "Rule 52(a) requires findings of fact which are a recordation of the essential and determining facts upon which the district court rested its conclusions of law and without which the district court's judgment would lack support." However, in Ditton's case, there was never a lack of support that probable cause existed; Ditton told police at the scene of the accident that he had been drinking, Ditton's blood-alcohol concentration at the time of the incident was 0.151, and Ditton plead guilty to the amended charge of DUI per se before the Municipal Court. Thus, Ditton's argument necessarily fails.
Ditton's petition further alleges that this Court ignored or misconstrued several findings of fact that were "material to the decision," in violation of M. R. App. P. 20. Amongst these arguments, Ditton contends that this Court-as well as the District Court-made incorrect factual findings in determining that the State had filed Ditton's charges with the Municipal Court on the same day as Ditton's automobile accident and that the Municipal Court judge had made an independent probable cause determination "to allow filing of the original charges." However, these arguments-which were also presented in Ditton's opening brief before this Court-were already taken into full consideration by this Court prior to issuing its memorandum opinion in this matter. This Court's memorandum opinion ultimately refused to substitute our judgment for the District Court's existing findings of fact on these matters. None of the additional factual or legal arguments 2 contained in Ditton's petition are sufficient to satisfy the high threshold that is required for this Court to grant a petition for rehearing under M. R. App. P. 20.
Lastly, Appellant's petition requests, in the event his petition for rehearing is denied, that this Court "modify the trial judge's sentence to conform to the plea with the state, honor the [plea] deal, and remove the appearance of vindictiveness." However, Ditton's petition contains no further elaboration on the nature of this request, nor was this request raised in Ditton's original appeal before this Court.
Having fully considered Appellant's petition, the Court concludes that rehearing is not warranted under M. R. App. P. 20. The Court did not overlook material facts or issues raised by the parties or fail to address a controlling statute or decision that conflicts with the Memorandum Opinion issued in this matter.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED. The Clerk is directed to provide copies of this Order to all parties and counsel of record. 3