alcohol-related restrictions are not “reasonably related”

DA 07-0631
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 1
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FORREST SCOTT SMART,
The issues on appeal are:
Did the District Court err in requiring polygraph testing as a condition of Smart’s suspended sentence?
Did the District Court err in imposing drug and alcohol prohibitions as conditions of Smart’s suspended sentence?
Having determined that the alcohol-related restrictions are not “reasonably related” to Smart’s sexual offenses nor are they necessary to promote rehabilitation since Smart does not have a history of significant or chronic alcohol abuse, we reverse and remand with instruction to the District Court to strike the alcohol conditions from Smart’s sentence. However, we affirm the inclusion of the polygraph examination for the reasons set forth above.

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.

jail time credit for time served in another state

DA 07-0449
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 375
STATE OF MONTANA, v. ROBERT ROY MILLIGAN,
Whether the District Court failed to credit Milligan with the full 215 days of incarceration before his sentencing.
A defendant’s sentence may be credited with the time he or she was incarcerated only if that incarceration was directly related to the offense for which the sentence is imposed. State v. Erickson, 2008 MT 50, ¶ 19, 341 Mont. 426, ¶ 19, 177 P.3d 1043, ¶ 19. Milligan’s
arrest in Idaho is directly related to the offenses his sentence imposed. Milligan is allowed full credit for time served.
We affirm in part, reverse in part, and remand for entry of an amended sentence consistent herewith.

DA 07-0017
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 371
MARTIN MARIANO BACA,, v. STATE OF MONTANA,
1. Did the trial court err in sentencing Baca for a felony PFMA offense instead of a misdemeanor PFMA?
In its response brief on appeal, the State reiterates its concession in the District Court that Baca’s 1999 conviction could not be used to enhance his current PFMA offense to a felony. The State also concedes that, in light of the circumstances of this case, the District Court erred in concluding that Baca’s 1997 South Dakota simple assault conviction should be considered a prior PFMA conviction under the § 45-5-206(3), MCA, enhancement
provisions.
Affirmed in part, reversed in part and remanded for resentencing on the PFMA conviction as a misdemeanor offense.

Jail time credit, 46-18-403(2)

DA 07-0120
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 344
STATE OF MONTANA, v. RANDY ALLEN DENNISON,
1. Did the District Court exceed its sentencing authority by imposing conditions on Dennison’s parole?
2. Did the District Court err by imposing a total fine of $28,850 against Dennison?
Pursuant to § 46-18-403(2), MCA, a person may be granted credit on a fine for each day of incarceration prior to conviction, except that the amount credited may not exceed the amount of the fine. Here, neither the $27,750 credit given by the District Court nor the 555 days of time served at $50 per day upon which it was based is challenged on appeal.
¶22 Remanded with instructions that the District Court enter an amended judgment deleting all reference to conditions of parole and reinstating its 2006 total fine of $9,200, less credit for time served, for a net fine of $0.

Condition No. 10 also exceeds the District Court’s sentencing authority, and insofar as it denies Nelson the right and privilege to use medical mariju

DA 07-0339
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 359
STATE OF MONTANA,
v.
TIMOTHY SCOTT NELSON,
Timothy Scott Nelson (Nelson) appeals two sentencing conditions imposed on him in the District Court of the Ninth Judicial District Court, Pondera County. We reverse the imposition of the challenged sentencing conditions and remand for further proceedings consistent with this Opinion
Issue One: Did the District Court exceed its statutory authority by requiring Nelson to comply with Condition No. 10 during the term of his deferred sentence?
Did the District Court exceed its authority when it imposed Condition No. 9 and required Nelson to comply with federal law which prohibits the possession of marijuana and does not provide an exception for the use of medical marijuana pursuant to state law?
We conclude the District Court exceeded its authority by requiring Nelson to comply with Condition No. 9, insofar as it subjected him to the possibility that his deferred sentence could be revoked based upon a violation of federal law. While Nelson may be generally required to obey federal law, an exception must be made for lawful use of medical marijuana under the MMA. Condition No. 10 also exceeds the District Court’s sentencing authority, and insofar as it denies Nelson the right and privilege to use medical marijuana as contemplated by the MMA, it must be stricken as well. Therefore, we reverse the imposition of these two conditions and remand for further proceedings consistent with this Opinion.

sex offender law

PState v. Lee
306 Mont. 173, 31 P.3d 998
Mont.,2001.
Under the present circumstances, we conclude that due process requires the trial court to consider whether there were adequate alternatives to incarceration that would further the purpose of Lee's suspended sentence. This is especially true when, as in Nixon, Lee's failure to complete sex offender treatment as required by the terms of his sentence was due not to his wilful conduct, but rather was due to the actions of the State. To do otherwise would deprive Lee of his conditional freedom simply because the State prevented him from completing sex offender treatment while imprisoned. Accordingly, we remand to the District Court to determine whether there are any reasonable alternative measures, other than continued incarceration, that are adequate to meet the State's interest in Lee's punishment, deterrence, or rehabilitation.
Reversed and remanded.

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.

Alchohol, casino restriction error, and restitution error

2007 MT 323
STATE OF MONTANA,v.
PENELOPE CELANDINA YOUNG,
Did the District Court impose an illegal sentence by including conditions regarding alcohol and casinos and by ordering a mental health evaluation?
We conclude that the District Court erred in imposing the alcohol and casino restrictions. We remand to the District Court to strike the alcohol and casino restrictions from Young’s sentence.

District Court exceeded its authority, sex offender treatment

2008 MT 43N
STATE OF MONTANA,
v. THOMAS RONALD KNUDSON,
1. Did the District Court err by ordering Knudson to complete sex offender treatment as a condition of parole following revocation of his suspended sentence?
2. Did the District Court abuse its discretion by finding by a preponderance of the evidence that Knudson had committed sexual intercourse without consent while on probation, even though a jury had acquitted him of that charge?
The District Court exceeded its authority under § 46-18-203(7)(a)(iii), MCA (1999), when it conditioned Knudson’s parole eligibility on completion of Phases I and II of the sex offender treatment program at MSP. Accordingly, we remand this case for the limited purpose of striking that condition on Knudson’s parole eligibility.

Suspended sentence revocation error

2007 MT 328
STATE OF MONTANA,
v.
THOMAS E. OIE
Whether the District Court erred in sentencing Oie to serve four years at MSP after revoking his suspended sentence.
§ 61-8-731(5), MCA, governs the imposition of sentence upon the revocation of Oie’s suspended sentence for felony DUI and limits the District Court to either continuing the period of probation or requiring Oie “to serve the remainder of the probation sentence” (emphasis added).
Accordingly, we hold that the District Court erred in sentencing Oie to serve four years at MSP after revoking his suspended sentence and we remand to the District Court for resentencing consistent with this Opinion.
Reversed and Remanded.
/

Withdraw guilty plea

2007 MT 40
STATE OF MONTANA, v.GARY GENE FRAZIER, JR.,
Did the District Court err in denying Frazier’s motion to withdraw his guilty plea?
The Justice Court’s interrogation was inadequate to determine whether there was
any factual basis for Frazier’s guilty plea. Since any doubts as to whether a plea was voluntary should be resolved in favor of the defendant, we hold that the District Court erred by not allowing Frazier to withdraw his guilty plea. Therefore, we reverse and remand this matter to the District Court for further proceedings consistent with this Opinion.

judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated

207 Mont. 483, 676 P.2d 168
Supreme Court of Montana.
STATE of Montana,
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.

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.

Alcohol Prohibition Sentencing error

State v. Holt
332 Mont. 426, 139 P.3d 819
Mont.,2006.
Prohibiting defendant from possessing or consuming alcohol was not condition that could be imposed as part of suspended sentence; and

alcohol and gambling conditions were excessive

2008 MT 192
STATE OF MONTANA,v.
CHRIS LESSARD,
We conclude that the alcohol and gambling conditions were too much, that no conditions would be too little, and that the drug-testing condition was just right. Accordingly, we reverse the District Court’s imposition of Conditions 9 and 20. In addition, we reverse Condition 10’s alcohol-testing requirement, but we affirm Condition 10’s drug-testing requirement. We remand this matter to the District Court with instructions to strike the illegal conditions from Lessard’s sentence.
Affirmed in part, reversed in part, and remanded with instructions

Sentencing restriction nor "reasonably related" to offense

2008 MT 83
STATE OF MONTANA,v.
EUGENE HOWARD ASHBY,
Did the District Court err in forbidding Ashby from consuming or possessing intoxicants and alcohol and from gambling or frequenting casinos?
Having determined that the alcohol restriction is not “reasonably related” to Ashby’s crime of writing bad checks nor is it necessary to promote rehabilitation since Ashby does not have a history of significant or chronic alcohol or drug abuse, we reverse and remand with instruction to the District Court to strike this condition from Ashby’s sentence. However, we affirm the inclusion of the gambling restriction for the reasons set forth above.

No restitution for dismissed count

2000 MT 100
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution

we hold that the District Court exceeded its statutory authority by

2001 MT 101
STATE OF MONTANA,v.
ROBERT SETTERS,

The issues on appeal are:
1. Whether the District Court erred in requiring Setters to pay restitution.
2. Whether the District Court properly considered Setters' ability to pay when it
established the amount of restitution.
3. Whether the District Court erred in assessing a penalty in addition to restitution.
Section 46-18-202(1)(e), MCA (1997), provides that a sentencing court may impose
any condition or restriction "reasonably related to the objectives of rehabilitation and the protection of the victim and society." However, in interpreting that provision in State v. Ommundson, 1999 MT 16, , 293 Mont. 133, 974 P.2d 620, we held that a sentencing limitation or condition must have some correlation or connection to the
underlying offense for which the defendant is being sentenced. There is no suchcorrelation or connection in this case between Setters' conviction on the tampering charge and ordering him to pay restitution to DPHHS for his alleged theft of public assistance benefits. Consequently, the District Court's order did not meet the statutory requirements for the imposition of restitution on a suspended sentence.
Accordingly, we hold that the District Court exceeded its statutory authority by
ordering Setters to pay restitution for a dismissed count as a condition of his sentence.
Hence, we reverse the determination of the District Court as to restitution and we order that portion of Setters' sentence vacated.

we reverse that part of the sentence requiring that he attend parenting classes.

2001 MT 111
STATE OF MONTANA,v.
PAUL EDMOND SMITH,
Smith appeals the portions of his new sentence that require him to attend parenting classes, and to pay $900 in jail costs. We affirm in part, reverse in part, and remand.
However, the State is correct that Smith did not object to the District
Court's imposition of costs in the record below. It is well established that for this Court to address an issue on appeal, the issue must have first been raised in the District Court. State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97. The District Court cannot be held in error for mistakes it was not given the opportunity to correct. State v. Rogers (1993), 257 Mont. 413, 419, 849 P.2d 1028, 1032.
We therefore affirm the condition that Smith pay for the costs of his incarceration, and we reverse that part of the sentence requiring that he attend parenting classes. This matter is remanded to the District Court for further proceedings consistent with this opinion.