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A man previously sentenced to death for the 1987 murder of a Miles City man could soon be released from prison, prosecutors say, after the Montana Supreme Court struck down one of his charges.

Vernon Kills On Top, 61, has been appealing portions of his case since he was convicted of killing 23-year-old Marty Etchemendy more than 30 years ago.

In October 1987, Etchemendy was kidnapped in Miles City, robbed, beaten and left for dead in the trunk of a car outside an abandoned building in Wyoming.

Kills On Top was one of three people sentenced in the case. Originally sentenced to death, he later saw that overturned after an appeal to the Montana Supreme Court.

In July, Kills On Top got another win from the court when it struck his kidnapping charge on grounds of double jeopardy. Prosecutors say that leaves him eligible for parole, based on the remaining homicide and robbery charges. 

Mike Etchemendy, the younger brother of the victim, said the news was a blow to him and his family.

“Every time this stuff comes up, it’s like we have to dig Marty up and have a funeral again,” he said.

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The Supreme Court order struck Kills On Top's kidnapping charge, saying it stemmed from the same facts as his homicide charge, and he could not be convicted of both. 

The court said the ruling wouldn’t change the sentence significantly and that Kills On Top still had many years to serve before he would be eligible for release. 

But prosecutors are citing accrual of good time credit and say that on the remaining charges, Kills On Top was actually eligible for parole in 2015.

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Etchemendy said he understands the need for appeals, but that the ruling was “obtuse” and did not take into account the district court’s intent when it sentenced his brother's killer to life without parole.

“Letting him go in front of a parole board is unbelievable,” Etchemendy said. “That’s where this needs to stop.”

The Montana Attorney General’s Office, which handles cases on appeal before the Montana Supreme Court, is asking for a re-sentencing hearing in Custer County District Court.

One of Kills On Top’s co-defendants — his brother Lester — remains in prison. The other, Diane Bull Coming, was released from prison in 2000 after serving 12 years.

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