Appeal from the District Court of Kidder County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
The opinion of the court was delivered by: Crothers, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Crothers, Justice.
[¶1] Todd Dailey appeals from a district court order denying his application for post-conviction relief. We reverse, concluding Dailey's DUI sentence is illegal, and remand for re-sentencing.
[¶2] In 2005, Dailey was convicted upon a jury verdict finding him guilty of manslaughter and of driving under the influence of intoxicating liquor ("DUI"), his fifth offense in seven years. Dailey was sentenced to serve five years in prison, with forty-two months suspended for five years, and to pay a $1,000 fine on the DUI conviction. On the manslaughter conviction, he was sentenced to serve ten years in prison and pay a $10,000 fine. The sentences were ordered to run concurrently.
[¶3] We affirmed the criminal judgment. State v. Dailey, 2006 ND 184, 721 N.W.2d 29. Addressing a challenge to the sentence, we noted on the DUI conviction that, "Dailey was sentenced to five years, with eighteen months in prison and forty-two months suspended for five years starting after the ten year incarceration for manslaughter." Id. at ¶ 12. We concluded the sentence was within the statutory sentencing limits. Id.
[¶4] In 2010, Dailey filed an application for post-conviction relief under N.D.C.C. ch. 29-32.1, alleging his sentence was illegal. Following a hearing, the district court denied the ...