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KALISPELL — The Montana Supreme Court has overturned the conviction and sentence of a man for sexually assaulting a 16-year-old boy in 2004, saying the judge accepted a guilty plea in the case before ruling on the man's earlier motion to have the charges dismissed.

Wilbur Rytky pleaded guilty to deviant sexual conduct in an agreement in which prosecutors said they would not seek to have Rytky declared a persistent felony offender. Such a designation could have added 100 years to his sentence.

Rytky had previously been designated a sexual predator after he was convicted of violent sexual offenses against a 12-year-old boy and a 10-year-old girl in Maine.

When he moved to Whitefish in February 2004, police warned residents, schools, day cares and other law enforcement agencies about Rytky.

Three months later he was arrested for assaulting a disabled boy and charged with a felony.

Rytky's attorney argued that the charge violated his constitutional right to equal protection under the law. He said that if Rytky had assaulted a 16-year-old girl, the charge would have been a misdemeanor.

Before District Judge Ted Lympus ruled on the motion to dismiss the charges, Rytky and prosecutors reached a plea agreement. Under the agreement Rytky reserved his right to appeal the constitutional issue.

Lympus sentenced him to 10 years in prison and ordered that he be ineligible for parole until he completed sex-offender treatment.

Rytky's attorney, Mark Sullivan of Whitefish, appealed the conviction and sentence.

The Supreme Court found that Rytky's conditional guilty plea is invalid because Lympus hadn't ruled on Rytky's motion to dismiss the charge before Rytky pleaded guilty.

Flathead County Attorney Ed Corrigan said the case will likely come back for a trial.

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