New Sentencing Condition upon revocation illegal

DA 07-0758
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 464
STATE OF MONTANA,
v.
JODI MICHELLE WHITE,
The sole issue on appeal is whether the sentence imposed by the District Court in August 2007 is illegal.
CONCLUSION
We hold under § 46-18-203(7)(c), MCA, that the District Court had no authority to impose new conditions on White’s 1997 sentence and that the court, thus, has no authority to reimpose those illegal conditions on White’s 2007 sentence. Accordingly, we reverse the District Court’s August 2007 judgment to that narrow extent and remand this case with instructions that the court strike all conditions on White’s current sentence which are not contained in the court’s February 1994, August 1994, and July 1996 judgments. We affirm the District Court’s August 2007 judgment in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.

revoked expired sentence illegal,

OPINION AND ORDER
STANA JEAN VANCE,v.
WARDEN JO ACTON and
WARDEN JAMES McDONALD,
Stana Jean Vance (Vance), pro se, filed a Petition for Writ of Habeas Corpus,
contending she was entitled to the benefit of this Court's decision in State v. Giddings, 2001 MT 76, 305 Mont. 74, 29 P.3d 475, because she did not receive a probable cause hearing within 36 hours of her arrest under a bench warrant for probation revocation. The
State of Montana has conceded that Vance is entitled to the benefit of our Giddings
decision, and indicates it intends to proceed in accordance with § 46-23-1012, MCA
(2001), by filing a petition for revocation of deferred sentence and obtaining a bench warrant. Vance argues, however, that a petition for revocation of a deferred sentence must be filed during the period of the deferred sentence, under § 46-18-203, MCA. Since her deferred sentence expired in April 2001, she argues that the refiling of a petition for revocation of an expired sentence is prohibited under the law. On November 20, 2001, we
directed the State to file a response to Vance's argument.
The State has responded, claiming it may proceed anew with revocation proceedings
under § 46-23-1012, MCA (2001), even though Vance has discharged her original
sentence.
There is no dispute that the probation violation occurred in October of 1999, nor does
the State dispute the fact that Vance's original sentence expired in April 2001. However,
the State relies on State v. Goebel, 2001 MT 155, 306 Mont. 83, 31 P.3d 340,
30, where we held that due to the jurisdictional defect in the proceedings, all subsequent
proceedings in the district court were void ab initio, and the parties are therefore returned
to the same position "as if no District Court proceedings had occurred." Id., 30 (citation
omitted). The State infers from this holding that the original sentence is tolled during the
period of the void proceedings, for purposes of refiling a petition to revoke. The State cites
of State v. Goebel, supra, where we said: While Giddings, and others who are similarly situated, were not afforded a hearing
pursuant to § 46-23-1012, MCA (1999), and thus the District Court lacked
jurisdiction to hold a revocation hearing in their cases, the State may now refile the
petition to revoke their probation pursuant to § 46-23-1012, MCA (2001), as long as
those probationers were still "under the custody or supervision of the department of
corrections" on May 1, 2001.
The State argues that since Vance was under the custody or supervision of the Department
of Corrections on May 1, 2001, pursuant to the void judgment of June 8, 2000, the State is
entitled to refile, irrespective of the fact that the original sentence expired in April, 2001.
We disagree.
The fact that the previous revocation proceedings were defective and therefore void ab initio does not mean that time stood still during the period of defective proceedings. Time passed, and Vance's original sentence expired. Moreover, the provisions of § 46-18-203, MCA, are not suspended by virtue of our decision in Giddings and Goebel, supra. Section 46-18-203(2), MCA, clearly states: The petition for a revocation must be filed with the sentencing court during the period of suspension or deferral.
There is no provision in the law allowing the State to refile a petition for revocation of suspended or deferred sentence to "relate back to the date of the probation violation" as the State urges. Although we have held in Giddings and Goebel that the State may refile a petition to revoke a suspended or deferred sentence, such refiling is conditional upon the petition being filed during the period of suspension or deferral of sentence, as § 46-18-203
(2), MCA, requires. Once the term of the sentence expires, the State has no more power to refile a petition to revoke that suspended or deferred sentence than it would have to file an original proceeding to revoke under those circumstances. Accordingly,
IT IS HEREBY ORDERED that Stana Jean Vance's Petition for Writ of Habeas
Corpus is GRANTED. The State of Montana is directed to release Vance from custody
with respect to the captioned cause number within 48 hours of the date of this Order.
IT IS FURTHER ORDERED that the Clerk of this Court is directed to serve notice of
this Order by mail to Stana Jean Vance at her last known address and upon the
respondents' attorneys.
DATED this 5th day of December, 2001.
/S/ KARLA M. GRAY

Restitution error

2003 MT 123
STATE OF MONTANA,v.
JACK WAYNE FLANAGAN,
We address the following issues:
1. Did the District Court err in making findings based on a presentence investigation
report not offered or admitted as an exhibit?
2. Did the District Court err by giving inadequate reasons for imposing the 10-year
suspended sentence?
3. Did the District Court err in imposing probation conditions with no nexus to the
offense committed?
4. Did the District Court err in imposing restitution as a condition of Flanagan's
suspended sentence?
5. Does the presentence investigation report provide an adequate basis for the
determination of--and did the District Court err in imposing restitution without specifying-- the timing of Flanagan's restitution payments?
6. Did the District Court err in ordering that all of Flanagan's assets in the marital estate and probate estate after his death be used to pay restitution?
With regard to the portion of the sentencing order which requires that any of Flanagan's assets of the marital
estate be used for restitution, the District Court did not evaluate what assets are necessary
for Flanagan to sustain a living; nor did it evaluate whether a joint tenancy in a family home could be lawfully severed in order to satisfy a restitution order. Moreover, in an ordinary probate proceeding, a creditor of the estate may submit a claim pursuant to § 72-3-804, MCA. We are aware of no authority for a claim for restitution to take precedence over the claims of other creditors of an estate.
On remand, the District Court is directed to reconsider and clarify this condition in conjunction with our remand on issue five.

Illegal Sentence, restitution and recoupment cannot stand

207 Mont. 483, 676 P.2d 168
Supreme Court of Montana.
STATE of Montana, Plaintiff and Respondent,
v.
Stephen E. FARRELL, Defendant and Appellant.
No. 82-391.
Submitted Sept. 29, 1983.
Decided Jan. 17, 1984.
Defendant was convicted in the District Court of the First Judicial District, in and for the County of Lewis and Clark, Gordon R. Bennett, J., of theft of public assistance funds and sentenced to ten years in prison, service of that term being suspended on condition that he make restitution of funds illegally obtained and penalty thereon, that he reimburse court for expenses incurred by his attorney and that he undergo treatment for his alcohol problem, and defendant appealed. The Supreme Court, Gulbrandson, J., held that: (1) there was substantial credible evidence of false statements made by defendant to obtain welfare assistance; (2) jury was properly instructed on elements of theft; (3) instruction on lesser included offense of misdemeanor theft was properly refused; (4) judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated by suspended ten-year sentence.
Affirmed in part and vacated and remanded in part.
Due process requires only that
indigency or poverty not be used as the touchstone for
imposing the maximum allowable punishment.

Sentencing error: $85 fee to the local community service program

2008 MT 208
STATE OF MONTANA,v.
JERRY GENE VanWINKLE, JR.,
The issue on appeal is whether the District Court imposed an illegal sentence when it ordered VanWinkle to pay an $85 fee to the local community service program as a condition of his deferred imposition of sentence?
We conclude that Condition No. 13—requiring VanWinkle to pay an $85 fee to the local community service program—is not statutorily authorized and, therefore, is illegal. As a result, we hold the District Court imposed an illegal sentence when it ordered VanWinkle to pay an $85 fee to the local community service program as a condition of his deferred imposition of sentence. Accordingly, we reverse the District Court’s imposition of Condition No. 13 and remand this case with instructions to the District Court to strike the condition from VanWinkle’s sentence.
Reversed and remanded for further proceedings consistent with this Opinion.

Breached Plea Agreement

No. 00-844
STATE OF MONTANA
2002 MT14
STATE OF MONTANA,v
JAMES AFTERBUFFALO.
The issue on appeal is whether the District Court abused its discretion in denying
Afterbuffalo's motion to withdraw his guilty plea.
We conclude, therefore, that the District Court's additional requirement that Afterbuffalo be placed in either a prerelease or intensive supervision program was outside the scope of the plea agreement and constitutes a rejection by the court of the agreement. As a result, we further conclude that, pursuant to § 46-12-211(4), MCA, the District Court was required to allow Afterbuffalo to withdraw his guilty plea.
We hold that the District Court abused its discretion in denying Afterbuffalo's motion to withdraw his guilty plea.
Reversed and remanded for further proceedings consistent with this opinion.

Victim released unharmed

2002 MT 122
STATE OF MONTANA,v.
DAVID WAYNE NELSON
1. Whether the District Court abused its discretion when it restricted the scope of Nelson's cross-examination of his accomplice;
2. Whether the District Court's instruction to the jury on "fabrication by the defendant" prejudiced Nelson; and
3. Whether the District Court erred when it sentenced Nelson to the maximum sentence for Aggravated Kidnaping, even though the evidence established the victim had been released in a safe location without serious injury.
The District Court sentenced Nelson to twenty years with ten years suspended, even though both victims testified at trial that Shari was released in her home before Nelson and Fred left. Moreover, during sentencing, the District Court noted it was "mindful that [Nelson] terminated [his] involvement in these crimes before someone was seriously physically injured," and that neither victim was "seriously injured in a physical way."
The State concedes that under the facts of this case, the District Court erred in sentencing Nelson to more than the ten year maximum. We therefore remand this matter to the District Court for resentencing under § 45-5-303(2), MCA. Upon remand, the District Court may also address any inconsistency between the written and oral judgments as noted in ¶ 8 of this Opinion.
Affirmed in part, and remanded for resentencing.

Fines

No. 92-552 1994
STATE OF MONTANA,
v. THOMAS NEIL SULLIVAN,

1. Did the District Court err in failing to hold an omnibus
hearing at least 30 days prior to trial pursuant to g 46-13-110,
MCA, thereby prejudicing defendant?
2. Did prejudicial media publicity, and the District Court's
refusal to grant challenges for cause, preclude a fair trial for
defendant?
3. Did the District Court err by limiting the testimony of
Sue Duarte, excluding the testimony of Richard Duarte, and failing
to grant defendant's motion for a mistrial?
4. Did the District Court err in refusing to dismiss or
reverse Counts I, 111, IV, and V of the information on the grounds
of insufficiency of evidence?
5. Did the District Court err in fining defendant his
vacation pay and sick leave pay and ordering distribution of these
funds to United Way of Cascade County?
We reverse and remand this part of the judgment for further proceedings in accordance with 9 46-18-603, MCA, which provides :
All fines and forfeitures collected in any court except
city courts must be applied to the payment of the costs of the case in which the...[[

Postponed restitution imposition improper

2002 MT 258
ROGER LARUE GILBERT,v.
STATE OF MONTANA,
1. Did the District Court err when it retained jurisdiction to revisit Gilbert’s parole restriction?
2. Did the District Court err when it postponed the consideration and imposition of restitution?
[W]e conclude that the District Court erred when it postponed consideration of restitution.

ex post facto winner

2007 MT 257
STATE OF MONTANA,v.
PAUL JAY SOUTHWICK,
Does the doctrine of res judicata bar this Court’s consideration of the merits of Southwick’s claim that the District Court imposed an illegal sentence?
2. Does Southwick’s failure to object to his sentences at either of his original sentencing hearings, or at the time the District Court revoked his suspended commitments, preclude review of his sentences?
3. Do the sentences imposed exceed the District Court’s statutory authority?
Because § 46-18-201(3)(d)(i), MCA (1999), is more burdensome that the 1997 version of the statute in effect at the time of the offenses, its application to Southwick violates the prohibition on ex post facto laws. Suiste, 261 Mont. at 253, 862 P.2d at 401.
We conclude, therefore, that Southwick’s sentence is facially illegal.

Jail time credit, illegal sentence

2003 MT 33
STATE OF MONTANA,v.
MICHAEL D. FISHER,
The issue presented for review is whether § 46-18-403, MCA, requires that a
sentencing court give a defendant credit for time incarcerated prior to conviction against both his jail sentence and any fine imposed.
We hold that a sentencing court has no discretion in applying § 46-18-403, MCA. It
must employ both subsections and give the defendant credit for each day of incarceration against both the sentence and any fine imposed. Once a valid sentence has been pronounced, the sentencing court has no jurisdiction to modify it except to correct factual errors. Section 46-18-116(3), MCA; Brown v. State, 2002 MT 209N, . However, a sentence which does not comply with Montana statutory law is illegal and must be addressed in the manner provided by law for appeal and postconviction relief. Section 46-18-116(3), MCA.
As we did in Layzell, we reverse and remand for resentencing in accordance with
this opinion.

illegal sentence

2002 MT 181
STATE OF MONTANA,v.
HAROLD LEE STEVENS,
Harold Lee Stevens appeals from the Fourth Judicial District Court’s judgment of conviction of three counts of sexual intercourse without consent and three counts of sexual assault. We affirm in part, reverse in part and remand for proceedings in accordance with this opinion.