State v. Jones
2011 ND 234
| N.D. | 2011Background
- Dailey was convicted in 2005 of manslaughter and fifth DUI; sentenced to five years with 42 months suspended for five years on DUI, plus $1,000 fine; manslaughter sentence was ten years and $10,000 fine; sentences run concurrently.
- This Court affirmed the judgment, noting the DUI sentence began after the ten-year manslaughter term and concluded it was within statutory limits.
- In 2010 Dailey filed a post-conviction relief petition challenging the legality of the DUI sentence.
- The district court held that probation cannot run during incarceration and that the DUI sentence permitted concurrent incarceration and a five-year probation following the longer sentence.
- Dailey argues the sentence violates NDCC 12.1-32-06.1(1) because probation would extend beyond five years after release when he would still be incarcerated on manslaughter.
- The issue centers on whether the DUI sentence is illegal under the five-year probation cap when probation would extend past the period of incarceration for the DUI offense while remaining imprisoned for manslaughter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DUI sentence violates NDCC 12.1-32-06.1(1). | Dailey argues release from incarceration occurs after DUI imprisonment, so five-year probation would start after the DUI term and run beyond the manslaughter incarceration. | State contends probation begins after the longer incarceration period, allowing overlap and a lawful five-year probation period. | Yes, illegal; probation would exceed five years under the statute and the sentence must be re-sentenced. |
Key Cases Cited
- State v. Roth, 2008 ND 227, 758 N.W.2d 686 (ND 2008) (probation can commence during incarceration when sentence so provides, but generally starts on release)
- State v. Berger, 2002 ND 143, 651 N.W.2d 639 (ND 2002) (probation begin date construed in defendant's favor when sentence lacks clear start)
- State v. Dailey, 2006 ND 184, 721 N.W.2d 29 (ND 2006) (earlier holding that DUI sentence could be within statutory limits when challenged)
- Jacobson v. State, 419 N.W.2d 899 (ND 1988) (cited for general principles of statutorily compliant sentencing)