State v. Osborn, 2015 MT 48

In 2007 Brian Osborn was sentenced in Missoula County (DC 07-282) to ten years with five suspended for felony theft; concurrent misdemeanor sentences and concurrency to any revocation of a prior suspended sentence were ordered.
Osborn began serving the suspended portion in July 2012; subsequent arrests in Cascade County produced additional charges and revocation proceedings in both Cascade and Missoula counties.
After admissions and proceedings in 2013, Cascade County revoked a suspended sentence and committed Osborn to DOC; Missoula District Court later revoked Osborn’s Missoula suspended sentence and imposed five years with two years suspended, ordered to run consecutive to Cascade’s sentence, and awarded 241 days’ jail credit.
Osborn sought review with the Sentence Review Division (SRD) and, before SRD resolved the matter, filed a motion in Missoula District Court under M. R. Civ. P. 60(b) seeking additional jail credit and to overturn the consecutive-sentence order.
The State opposed use of Rule 60(b), arguing civil rules do not apply to criminal revocation proceedings; the District Court denied Osborn’s 60(b) motion and this appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a post-revocation challenge to sentence may proceed under M. R. Civ. P. 60(b)	Civil rules do not apply to criminal revocation; defendant must use criminal review procedures (SRD or direct appeal)	Revocation is civil-like and civil procedure (including Rule 60(b)) applies to challenge the sentence	Denied: Rule 60(b) was not the proper vehicle; criminal procedural remedies apply and Osborn is precluded from raising a late challenge to legality because he failed to appeal within the prescribed time

State v. Adams, 371 Mont. 28, 305 P.3d 808 (discussing review limitations when a defendant fails to timely appeal)
State v. Watts, 221 Mont. 104, 717 P.2d 24 (probation characterized as an act of grace; revocation requires lower proof standard)
State v. Boulton, 332 Mont. 538, 140 P.3d 482 (revocation weighed against rehabilitation; sentencing options on revocation)
State v. Seals, 336 Mont. 416, 156 P.3d 15 (§ 46-18-203 governs sentencing after revocation)
Jordan v. State, 346 Mont. 193, 194 P.3d 657 (SRD reviews equitable issues like sentence length)
State v. Tweed, 312 Mont. 482, 59 P.3d 1105 (method for challenging legality of sentence is by appeal)
State v. Macker, 373 Mont. 199, 317 P.3d 150 (Rules of Evidence do not fully apply in revocation hearings)