No. 84-558
I N THE SUPREME COURT OF THE STATE OF MONTANA
1985
F R I T Z JAMES DAHLbIAN,
P e t i t i o n e r and A p p e l l a n t ,
D I S T R I C T COURT, SEVENTEENTH
JUDICIAL DISTRICT, e t d l . ,
R e s p o n d e n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of P h i l l i p s ,
T h e H o n o r a b l e L e o n a r d L a n g e n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
F r i t z J a m e s D a h l m a n , pro s e t D e e r L o d g e , Montana
F o r Respondent:
Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
W i l l i s M. M c K e o n , C o u n t y A t t o r n e y , Malta, M o n t a n a
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S u b m i t t e d on B r i e f s : March 7 , 1985
Decided: A p r i l 16, 1985
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant, Fritz James Dahlman appeals the November 7,
1984, memorandum opinion and order of the Seventeenth
Judicial District Court, County of Phillips, denying his
request to dismiss a portion of a previous judgment ordering
defendant to reimburse either the City of Malta or Phillips
County in the amount of $592.10, for medical expenses
incurred by him. We affirm.
Following a high speed chase, defendant was arrested
December 21, 1984, in a stolen automobile and incarcerated in
the Phillips County jail. While jailed, defendant beat his
head against the wall and indicated that he might commit
suicide. Because of these threats, Phillips County
authorities transferred defendant to the Deaconess Hospital
at Glasgow, Montana. An examination of defendant by
employees of Eastern Montana Mental Health uncovered no
evidence of an emotional problem. After incurring medical-
expenses of $592.10, defendant was returned to the Phillips
County jail on December 23, 1984. Either the City of Malta
or Phillips County is responsible for that bill.
On February 3, 1982, defendant pled guilty to the charge
of felony theft. He was sentenced April 30, 1982, to the
Montana State Prison for a term of seven years, with the last
three suspended. Several conditions were placed on
defendant's period of suspension, including the requirement
that defendant make restitution payments to the Clerk of
Court totalling $2,299.59. That amount consists of: 1)
$592.10 incurred as a result of defendant's hospitalization;
2) $1,657.49 owed Underwriters Adjustment Company, the
insurer of the stolen vehicle which defendant damaged; and 3)
$50 owed to the owner of that vehicle to cover his insurance
deductible.
On July 3, 1982, defendant filed a pro se motion
requesting the trial judge to dismiss that portion of the
order requiring defendant to pay for his medical expenses.
Defendant's motion was denied July 12, 1982.
Next, on July 19, 1982, defendant filed a pro se motion
requesting the trial judge to reconsider his order of July
12, 1982. That motion for reconsideration was summarily
denied on August 19, 1982. No further action was taken until
defendant filed a pro se memorandum in support of his motion
for reconsideration on November 13, 1984. In that
memorandum, defendant alleges that the trial judge was
without authority to order him to pay his medical expenses as
they are neither a cost to be paid by defendant pursuant to
5 46-18-232, MCA, restitution pursuant to 5 46-18-201, MCA,
nor a cost of confinement pursuant to 5 46-18-201(1) (a)(v),
MCA .
In his order of November 7, 1984, the trial judge held
that the medical expenses were indeed a cost of confinement,
pursuant to 5 46-18-201(1) la) (v), MCA (1983), and upheld his
previous order. The trial judge did indicate, however, that
the reimbursement was improperly termed "restitution" and
that the clerical error would be corrected by an order nunc
pro tunc.
In his appeal of the November 7, 1984, order, defendant
raises the following issues:
1 Was the trial court authorized to mod.ify its
judgment thirty months after judgment was entered on the
minutes?
2. Was the trial court vested with statutory authority
to impose, as restitution, medical costs incurred at the
insistence of the confining agency?
Consideration of issue one necessarily involves
consideration of a question raised by the State: Whether
defendant can seek to modify his sentence by filing a
post-judgment motion in District Court and then appealing
that court's decision to the Montana Supreme Court?
This Court has repeatedly held that "once a valid
sentence has been pronounced, the court imposing the same is
lacking in jurisdiction to vacate or modify the sentence,
except as otherwise provided by statute . . . .I
' State v.
Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711; State
v. Downing (1979), 181 Mont. 242, 244, 593 P . 2 d 43, 44;
Wilkinson v. State (Mont. 1983), 667 P.2d 413, 414, 40
St.Rep. 1239, 1241. Therefore, the trial judge in this case
had no jurisdiction to modify defendant's sentence under
defendant's motions. However, had defendant filed a motion
for post-conviction relief, the trial judge would have ha.d
jurisdiction to modify defendant's sentence, pursuant to 5
46-21-101, MCA. In order to reduce duplication of effort, we
consider this action to be one for post-conviction relief.
See State v. Laverdure (Mont. 1984), 685 P.2d 375, 376, 41
St.Rep. 1570, 1571.
We affirm the decision of the District Court to deny
defendant's motion to dismiss, albeit for a reason different
from that of the trial judge. The trial judge incorrectly
approved reimbursement of medical expenses as reimbursement
of a cost of confinement, pursuant to S 46-18-201(1) (a) (v),
MCA (1983). However, that subsection was enacted in 1983, a
year after defendant was sentenced.
Requiring defendant to reimburse the medical expenses as
a condition of his suspended sentence was allowed at the time
defendant was sentenced under 5 46-18-201 (1)(a)(ix), MCA
(1981). That section states in relevant part:
"The sentencing judge may impose upon the defendant
any reasonable restrictions or conditions during
the period of the deferred imposition. Such
reasonable restrictions or conditions may include:
" (ix) any other reasonable conditions considered
necessary for rehabilitation or for the protection
of society."
This condition may also be imposed on a defendant during the
period of a suspended sentence, pursuant to
§ 46-18-201 (1) (b), MCA. (1981).
The imposition of this condition on defendant was
reasonable for rehabilitation purposes in light of finding of
fact number 6 in the District Court's April 30, 1982, order
sentencing defendant:
"(6) The reports indicate that he is a manipulator
or a confidence man and that he tends to manipulate
people in order to get preferred treatment. The
incident which occurred on December 21, 1981, in
the Phillips County Jail may be evidence of this or
appears to be evidence of this. He beat his head
on the wall. He indicated that he might be going
to commit suicide, so he was transferred to the
Deaconess Hospital at Glasgow, Montana. He was
examined by Eastern Montana Mental Health and they
could find no evidence of emotional
difficulties. ..
As a result of this either the
City of Malta or Phillips County incurred an
obligation totaling $592.10 ...
It appeared that
this expenditure served no useful purpose
whatsoever except to appease this defendant's
desire for attention and perhaps to get sympathy."
Finally, there was no error in the trial judge's order
nunc pro tunc correcting the improper use of the term
"restitution." The error was clerical in nature. Every
court has the inherent right to correct clerical errors.
Niewoehner v. District Court (1963), 142 Mont. 1, 10, 381
The o r d e r o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
We c o n c u r :
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