*1 STATE OF MONTANA, Respondent, Plaintiff v.
LYNN W. DOCKEN,
Appellant.
Defendant
No. 95-128.
August
Submitted on Briefs
1995.
Rehearing
January 11,
Denied
1996.
Decided December
1995.
St.Rep.
For Appellant: Renz, T. Montana Defender Project, Uni- versity School, of Montana Law Missoula.
For Respondent: Hon. Joseph Mazurek, P. Attorney General, Jordan, Pat Assistant Attorney General, Helena; Butler, Deborah Acting County Jefferson Attorney, Boulder.
JUSTICE NELSON Opinion delivered the of the Court. On June 1, the District Court for the Fifth District, Judicial (Docken) County, Jefferson Lynn sentenced defendant W. Docken years imprisonment, all of which was suspended. Upon petition, the District Court revoked the suspended sentence and imposed five-year suspended another Upon petition, second District Court revoked the second sentence and imposed five-year prison term. Docken from appeals judgment imposing prison term. We affirm.
Docken raises the following appeal: issue on Did the District Court have to revoke Docken’s five- year suspended sentence and impose five-year sentence?
BACKGROUND 8, 1989, the State Docken with one count of February charged On and, alternatively, forgery through with one count of common forgery Court sentenced Docken to five imprison- scheme. The District through common scheme and her sen- forgery ment for conditions. tence under certain later, petitioned the State
Approximately four including pos- probation Docken’s violations firearm, fines, offenses, pay of a failure to misdemeanor session violently to enforcement officers. Docken admitted responding law petition. well-being Concerned about the allegations child, the officer recommended The probation probation. Docken’s District Court revoked Docken’s stated that she served, given imposed not to be credit for time five-year suspended later, again petitioned and one-half months the State revoke
Two sentence, alleging probation violations of her Docken’s unlawful drugs, possession beverages, of alcoholic failure to use of restitution, The employment. make and failure to maintain District sentence, did not allow Court revoked Docken’s second *3 already and ordered her spent probation, credit her time on Facility years. for five imprisoned at the Women’s Correctional of her suspended the District Court’s revocation appeals Docken imprisonment years. her sentence of for five sentence and
DISCUSSION jurisdiction Docken’s five- the District Court have to revoke Did impose five-year suspended a second year suspended sentence sentence? 46-18-203(1), MCA, gives sentencing judge
Section (1989), sentence. State v. Otwell suspended to revoke a discretion “a 376, 377, 402, P.2d 403. We will not overturn 240 Mont. 784 of a or deferred sentence suspended Court’s revocation District v. court abused that discretion.” State showing that absent a 234, 776, (citing (1988), 230, 758 P.2d 233 Mont. Strangeland 815). 813, 145, 149, P.2d (1980), 190 Mont. State v. Robinson of the here, the issue involves existence However, where, as discretion conferred to exercise the court’s statute, plenary. review is our
Docken’s are She that arguments two-fold. claims the District impose Court did not have to a suspended sentence and impose suspended then revoke it a second sentence. Because lacked argues she that District Court to suspended second Docken also claims that the sub- of the sequent suspended revocation second sentence and imposi- tion of a of five in the Women’s Facility sentence Correctional is void. (1979), on our State Downing
Docken relies decision in v. 181 Mont. 43, 242, to assert that District 593 P.2d Court lacked suspended to revoke her sentence and asserts that this Court follow sentence. The State should its reason- 238, 339; v. ing Speldrich McCormick 243 Mont. 794 P.2d Oppelt and State v. hold that reimpose District Court the suspended jurisdiction. sentence and retain Downing guilty burglary the defendant pleaded of a motor
vehicle, felony, and was years imprisonment, sentenced to three on various conditions. Two and one-half later, on petition county attorney, of the district court revoked the defen- dant’s judgment and entered another whereby sixty Downing spend county was sentenced to jail and on months status. Over a and a (after days) half later the defendant sixty has served his county attorney petition suspended portion filed to revoke the defendant’s sentence. The court district denied the defendant’s mo- petition and, tion to dismiss the granting petition, ordered him to remaining thirty-four serve the months of his P.2d at 44. Downing, 593 Downing
On appeal, conceded district court had the power and order three-year his him to serve a However, term in prison. argued he the district court did not statutory authority have the to revoke his sentence and modify then at 44. We noted imposed, “[o]nce a valid sentence is lacks modify specifically vacate or unless authorized statute.” *4 Downing, at 44.
Section the statute effect at in the time committed, any the crime has provided judge suspended was who a may: the execution of sentence suspension impose person or sentence and order such
revoke such committed, may, discretion, prisoner in order the placed or his the state of pardons under the board as law, retain such with this court. or sentencing that this section allowed the court three determined We a defendant mutually dealing exclusive alternatives who has probation. sentencing the conditions of We stated violated “ suspension person revoke such ... and order such may ‘... ” with this court.’ Downing, [or] ... retain such committed 593 P.2d at revoke, that, petition first the court exer- concluded on the
We
statute,
i.e.,
alternative under the
to revoke
cised the first
the defendant committed. We deter-
sentence and order
suspended
erred, however, going beyond simply revoking
that the court
mined
committing
and
him instead re-
suspended sentence
Downing’s
county jail
and another
sixty
him to serve
quiring
held that there was
months on
sentence. We
county
court to
statutory authority
grant
for the district
no
Downing’s suspended sentence
attorney’s
petition
second
longer
no
had
a
that the district court
and
While be original court’s modification of the defendant’s sentence and that in upheld imposition we the district court’s of a second Speldrich original because the sentence was not al- suspended sentence tered, reading a careful of both cases reveals such an In the argument origi- is semantics. court revoked thirty-six and then imposed sixty nal month suspended; of incarceration and months Speldrich, original years suspended court revoked the five and three incarceration and imposed two suspended. length original In neither case was the sen- modified; suspension tence in both cases the first revocation of by suspension. was followed a combination of incarceration Finally, notwithstanding pertinent language in statutes 1947, in effect when each case was § decided — 46-18-203(1), MCA (Downing) (Speldrich) virtually § —is same, the results of the two cases are irreconcilable. Under circumstances, again appropriate such it is that we examine the language of the statute. reviewing jurisdiction
In the District Court’s in this case we look 46-18-203(1) (1987), MCA, because it was the statute in effect at § (1978), the time the crime was committed. v. Azure See State 46-18-203(1) 282, Mont. 1298. Section MCA, provides pertinent part:
A the execution of a is judge ... who has sentence ... authorized in suspension his discretion to revoke also, committed. may sentence and order the He in his person discretion, prisoner placed order the under the or retain department of institutions as law such [Emphasis added.] with his court.
This Court “retain such with his has construed synonymous continuing sentence. See court” to be 190, 193, 397; (1994), Oppelt, Rogers 601 P.2d at State v. 115, conviction, a sentence is a ‘decision suspend After the decision to in favor of a forego complete liberty denial of incarceration essence, liberty of restricted .... judicially-supervised period by imposing trial court retains over the defendant agrees conditions on defendant’s freedom to he which abide. omitted and emphasis [Citations added.] 397.1 Oppelt, P.2d at case, the statutory
In the instant
District Court had the
author
46-18-203(1),
ity
originally
MCA
to revoke Docken’s
Speldrich,
imposed
Under
court also
by reimposing
to retain
over the defendant
power
suspending
sentence and then
the sentence reim
original
posed.
Speldrich
upheld
authority
Since
court’s
original
reimpose
impris
then
sentence via a combination of
totaling no
than
suspension
greater
length
onment and
both
here
sentencing
follows that
court like
revoke,
reimpose,
suspend
wise had the
and then
*6
entirety
sentence,
long
reimposed
ofthe defendant’s
so
as the
original
not
the
ofthe
length
original
Speldrich,
sentence did
exceed
The State
this
agree.
holding Downing
holding
Our
is inconsistent with our
in
carefully reexamining Downing,
On
we conclude that our
Speldrich.
of
Contrary
interpretation
95-2206(6),
in error.
to our
decision was
§
the
RCM
that
more latitude to
district court
statute
reading
plain language
than our restrictive
allowed. Under the
of
1947, the
could
sen-
court
revoke
committed,
and order the defendant
or order
tence or
sentence
placed
under the
of the state board of
prisoner
written,
jurisdiction.
revoking
retain
Under the statute as
pardons, or
did
sentence and order-
require imposing
sentence
not
revocation, imposition of
and order
ing commitment. While
court,
available to the district
of commitment was one alternative
also had
sentence
jurisdiction,
If the court retained
then it retained
jurisdiction.
retain
dissent, by footnote, points
Reports
to a difference between
Montana
1. The
Oppelt.
language quoted
Reporter
regard
from
to certain
the Pacific
Second
(Okla.Cr. 1973),
Marutzky
Oppelt
430, 431,
authority
v. State
cited in
as
Marutzky,
“The court maintains
In
the court stated:
for the statement
at
issue.
judgment
imposes subsequent
continuing jurisdiction
condi
via a
and sentence which
freedom,
agrees
upon
to which
to abide.” Accord
defendant’s
conditions
defendant
tions
Oppelt
quote
ingly,
full
from
ws not included in the Montana
reason the
for whatever
paraphrase
language
Reports,
Reporter
is a more accurate
the Pacific
Second
Moreover,
Reports.
language Marutzky
language from
is the
the Montana
than
(decided
original opinion
file
Clerk of
as Cause No. 14289
Court on
with the
Court
this
1979)
Reporter.
language
forth
the Pacific
as set
contains
October
ability
suspend
partially suspend
imposition
of sentence.
Although
Oppelt,
Speldrich
specifically
See
MCA(1987), Speldrich, and consistent with it revoked her suspended reimposed original five-year sentence and then sentence. Choos 46-18-203(1), to retain ing MCA the court then all five Having thus retained jurisdiction, the District Court 46-18-201(1), under § MCA to then revoke Docken’s second sentence and her order commitment to the Women’s Facility Correctional for the years. full term of five We hold the District Court had the statutory authority, jurisdiction, and thus to impose the second its decision to subsequently revoke that is not void.
Affirmed. TURNAGE,
CHIEF JUSTICE JUSTICES GRAYand LEAPHART concur. dissenting.
JUSTICE TRIEWEILER I dissent the majority from opinion which uses semantic smoke ignore plain 46-18-203, and mirrors to language of § MCA. The role of this Court in the of a statute is simply construction to ascertain therein, and declare what is in terms or in substance contained not has 1-2-101, insert what been omitted. Section MCA. *7 correctly As we concluded Downing in State v. 181 Mont. (1947) (current 242, 43, Section version at 46-18-203, MCA), simply provide option does the of reimposing § not a second suspended sentence after a first sentence has appropriately noted, been revoked. We position “[t]he State’s seems to be that a technically impede three sentence can 244, the defendant the of Downing, for rest his life.” at 593 Mont. at majority’s P.2d 44. That now seems to position. be the We held in Downing that: the
Once decision was made to revoke defendant’s suspended sentence, the District Court discretion to allow credit defendant, “good by time” served but that is all. Section 95-2206(3), R.C.M. 1947. The District Court did not have statutory authority sixty to defendant to require serve in the County Ravalli Jail and another a sus- months on 95-2206(6) sentence. Section pended permit did not this kind of modification. authority there no
Accordingly, was District Court county attorney’s revoke the grant petition again has point, longer sentence. Atthis the District Courtno imposed this over defendant a sentence at time would be void.
Downing, 245, Mont. at 593 P.2d at majority’s
The there is an conflict conclusion unreconciled Downing Speldrich and our decision in v.McCormick between nothing is more than the creation of a knocked There is straw man so that can be down. no conflict Speldrich. Speldrich involves a one- Downing between one and opinion in which we remanded a to the page half order and case for further of the sentence in imposed district court consideration MCA, 46-18-201, gives the court the discretion light of which district § against credit sentence the actual time served pointed As we in time served after revocation of out appeal in that case did not even Speldrich, the defendant his case not involve the same or conviction. That did issue which MCA, nor its Downing. 46-18-203, predecessor Neither discussed in § Downing, were raised or discussed in that case. which involved opinion Downing. mystery It is no did not discuss The State’s Downing the same not did not even raise because issue was brief involved. exist, majority conflict constructing
After which does not in favor of overruling Downing interpre- the conflict an reconciles MCA, sense, makes cannot 46-18-203, justified of which no be tation § statute, way in no supported which is plain language page opinion Speldrich. and one-half and order in by this Court’s one which language that that contained -203 majority The concludes it the authority jurisdiction,” gives to “retain gives district revoking and additional sentence after out the first though even four of on first already meaning How the of have been served. beyond in this is me. can be distorted fashion simple language District Court with provide not simply The statute does revoking after a new and different imposing option plain As we held original suspension *8 (1) language gives of the statute the court three alternatives: It may (2) the suspended revoke sentence and order the person committed; may person placed it order the jurisdiction of the depart- (3) institutions; may ment of retain with the court. majority language The takes out of context from State Oppelt v. 48, 601 P.2d for its conclusion that “retain such court” synonymous with his is with “impose a new sus However, sentence.” pended paste this cut and approach arriving justified. at its conclusion is not Oppelt, defendant contended that revocation of a suspended sentence based on conviction of a second crime constituted a double punishment crime, for the second therefore, violated the Fifth prohibition Amendment against subjecting person a jeopardy double for the same offense. In describing a sentence, we stated that during the period suspension the court retains over the defendant’s free option dom with the of incarcerating him should he comply not with the terms of his sentence. We used that expression to illustrate that when a revoked, sentence is a defendant is being punished not offense, therefore, for new prohibition against jeopardy By double is not offended. no stretch of the imagi nation can our statement in Oppelt, 53, that, 184 Mont. at “the trial court retains over the justify defendant’s freedom”1 majority’s conclusion in this case that similar language found in 46-18-203, MCA, allows the court to a new and additional sentence which is not statute in the event a defendant violates the terms of his probation. jurisdiction” “Retained Oppelt solely was used purpose why, if explaining a defendant of probation, violates term the district court has the which was without action being punishment. considered an additional majority may flexibility
The like the opinion gives that its district perpetuating courts for their involvement in the lives of criminal A English here, offenders. little creative use of the language and a there, little distortion of a statute’s terms and there is no end to the solutions our district could come up courts deal with what we (which quotes language Oppelt Reporter 1. This dissent from in the Montana includes decisions) reports page the official for our 184 Mont. at which P.2d 394 states that Reporter the trial court retains over “the defendant’s freedom.” The Pacific Second, page 397, majority opinion relies, on which the states that the court retains “jurisdiction over the defendant.” majority My objection opinion anti-social conduct. to the all concede is ofthe plain language that it is not authorized statute simply is have asked to construe. been reasons, majority opinion. I For these dissent from *9 joins foregoing dissent. JUSTICE HUNT