No. 14394
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
SAMUEL MARK DOWNING,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Respondent :
Douglas G. Harkin, Hamilton, MT
Mike Greely, Attorney General, Helena, P T
q
Rick Larson argued, Helena, MT
For Appellant:
Robert J. Campbell argued, Missoula, MT
Submitted: December 11, 1978
Decided: W 1 2 1979
R
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant appeals from an order of the Ravalli County
District Court which denied his motion to dismiss and granted
the county attorney's petition to revoke defendant's suspended
sentence. Because ~f the nature of the question involved,
the District Court judge delayed imposition of sentence
pending review by this Court as tc his authority to impose
a sentence.
Defendant Samuel Mark Downing was arrested on
November 10, 1972 and charged with burglary of a motor
vehicle, a felony under section 94-901, R.C.M. 1947 (since
repealed). Upon entry of a guilty plea, Downing was
sentenced to three years imprisonment at Montana State
Prison, with sentence suspended upon the condition that
he comply with all the rules and regulations of the Montana
Board of Pardons. Defendant's sentence commenced running
on November 19, 1973, the day it was imposed.
Approximately two and a half years later (May 14,
1976), the county attorney filed a petition seeking the
revocation of Downing's suspended sentence for the reason
that defendant had sold "dangerous drugs" to a Missoula
man. On May 28, 1976, defendant appeared in District Court
and admitted he had sold dangerous drugs. On that same
day, the District Court revoked defendant's suspended
sentence and entered another judgment whereby defendant was
sentenced to spend sixty days in the Ravalli County Jail
and thirty-four months on suspended sentence status.
Defendant served the sixty days in the Ravalli
County Jail, and then returned to his home in Missoula,
Montana. More than a year and a half later, on February 24,
1978, the Ravalli county attorney again filed a petition
seeking to revoke defendant's suspended sentence. The
grounds for this revocation are not pertinent to this appeal.
Defendant moved to dismiss the county attorney's petition
to revoke, his motion was denied, and the District Court
granted the petition to revoke defendant's suspended sentence.
According to the State, the District Court could still
sentence defendant to serve thirty-four months in the State
Prison. However, before pronouncement of sentence, the
District Court, because of the nature of the legal questions
presented, authorized defendant to take this appeal.
Downing first contends that the District Court did
not have statutory authority to enter its May 28, 1976
judgment wherein it altered the original three year (suspended)
sentence; and, he further contends that the May 28 judgment
violates the double jeopardy provision of the Montana and
United States Constitutions. Since this appeal can be
decided solely on the question of statut~ryauthority, we
need not address the constitutional argument.
Once a valid sentence is imposed, the court lacks
jurisdiction to vacate or modify it unless specifically
authorized by statute. State v. Porter (1964), 143 Mont.
528, 540, 391 P.2d 704. Here, defendant concedes that
the District Court had the power to revoke his 1973 suspended
sentence and require him to serve a three year term in
prison. Defendant contends the District Court overstepped
its statutory authority by revoking his suspended sentence
and then modifying his original sentence by requiring him to
serve sixty days in the Ravalli County Jail and another
thirty-four months on suspended sentence status. The
State's position seems to be that a three year suspended
sentence can technically impede the defendant for the
rest of his life.
The pertinent statute in effect at the time, section
95-2206(6), R.C.M. 1947, provides as follows:
"Any judge who has suspended the execution
of a sentence or deferred the imposition
-
of a sentence of imprisonment under this
section, or his successor, is authorized
thereafter, in his discretion, during the
period of such suspended sentence or
deferred imposition of sentence to revoke
such suspension or impose sentence and
order such person committed, or may, in
his discretion, order the ~risonerplaced
under the jurisdiction of the state board
of pardons as provided by law, or retain
such iurisdiction with this court. Prior
to thg revocation of an order suspending
or deferring the imposition of sentence,
the person affected shall be given a hearing."
(Emphasis added.)
The plain meaning of the words used in section 95-2206(6)
gives the District Court three alternatives for handling
a defendant who has violated the terms of his probation.
The District Court may:
.
". . revoke such suspension . . . - and
order such person committed ... [or] order
the prisoner placed under the jurisdiction of
the state board of pardons ... [or] retain
such jurisdiction with this court."
It is clear that these three alternatives were meant to
be mutually exclusive. While they give the District Court
some latitude in dealing with probation violators, they
do not vest the court with completely unbridled discretion.
The first alternative, that which was exercised
by the District Court at the first hearing to revoke
the suspended sentence, allows a judge to revoke a
suspended sentence and order the defendant committed.
The revocation is the most drastic alternative for "the
revocation . . . leaves the defendant subject to execution
of the original sentence as though it had never been
suspended." Matter of Ratzlaff (1977), Mont . I
564 P.2d 1312, 1315, 34 St.Rep. 470, 473. Once the decision
was made to revoke defendant's suspended sentence, the
District Court had the discretion to allow a credit for
the "good time" served by the defendant, but that is all.
Section 95-2206(3), R.C.M. 1947. The District Court did
not have the statutory authority to require defendant to
serve sixty days in the Ravalli County Jail and another
thirty-four months on a suspended sentence. Section
95-2206(6) did not permit this kind of modification.
Accordingly, there was no authority for the District
Court to grant the county attorney's petition to again revoke
the suspended sentence. At this point, the District Court
no longer has jurisdiction over the defendant and a sentence
imposed at this time would be void.
For the foregoing reasons, the District Court order
dated June 30, 1978 revoking the suspended sentence is
reversed. The defendant is no longer subject to the
jurisdiction of the District Court.
We Concur:
Lli Justices ?I
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