No. 8 7 - 2 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
ALFRED VERNON OWENS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable C. B. Sande, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Alfred Vernon Owens, pro se, Deer Lodge, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Clay R. Smith, Asst. Atty. General, Helena
Harold Hanser, County Attorney, Billings, Montana
Submitted on Briefs: Sept. 25, 1 9 8 7
Decided : January 15, 1988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the opinion of
the Court.
Appellant appeals from an order of the District Court,
Thirteenth Judicial District, Yellowstone County, designating
appellant a dangerous offender pursuant to 5 46-18-404, MCA.
We affirm.
Appellant brings two issues on appeal.
1. Did the District Court have jurisdiction to render a
dangerous offender designation on a judgment and sentence
imposed and executed 106 months earlier?
2. Did the District Court subject the appellant to
double jeopardy by increasing his sentence with a dangerous
offender designation?
On November 27 and 28, 1977, the defendant was involved
in the robbery homicide of a man in Yellowstone County. The
defendant's brother robbed the deceased in the presence of
the defendant in his motel in Laurel. The defendant then
drove the deceased and defendant's brother to an isolated
area where the deceased was shot twice by the defendant's
brother. Both brothers returned to Laurel and removed
several items from the deceased's car.
Appellant-defendant Owens was convicted of mitigated
deliberate homicide and robbery and was sentenced to 40 years
imprisonment on each count to run concurrently. The order
dated June 15, 1978 did not designate him either as a
nondangerous or dangerous offender. On January 16, 1987, the
appellant initiated a habeas corpus proceeding in which he
challenged Warden Henry Risley's treatment of him as a
dangerous offender for parole purposes. The petition was
initially dismissed on procedural grounds but upon
reconsideration this Court remanded the matter to the
sentencing court for findings and clarification of the
dangerous designation. After a hearing, the District Court
ordered that appellant be designated a dangerous offender and
filed findings of fact and conclusions of law to that effect.
This was deemed an order nunc pro tunc by this Court. From
this order the appellant appeals.
Appellant contends that the District Court lacked proper
jurisdiction to designate the appellant as dangerous nearly
10 years after he had been sentenced. He argues that the
designation augments his valid 1978 sentence and that, in any
event, the court had no power to modify it after the final
judgment had been filed. See Wilkinson v. State (Mont.
1983), 667 P.2d 413, 414, 40 St.Rep. 1239, 1241; State v.
Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711.
Although appellant correctly states the law, it does not
apply in a case where the Supreme Court has remanded a matter
to a district court for clarification. In each of the cases
cited by appellant the court had attempted to modify a
judgment sua sponte after it had been filed. This is not the
case here. A district court must follow the appellate
court's mandate on remand. State, Etc. v. Dist. Ct. of
Nineteenth, Etc. (1979), 184 Mont. 346, 349, 602 P.2d 1002,
1004; In Re Stoian's Estate (1960), 138 Mont. 384, 390, 357
P.2d 41, 45. On remand the court has only so much
jurisdiction as it is given by mandate of the appellate
court. By remanding to the District Court, this Court held
that the District Court had jurisdiction to act in this
matter. In Re Stoian's Estate, 357 P.2d at 47.
The appellant argues next that his sentence did not
include or imply a designation of dangerous and therefore he
should be treated as nondangerous. Thus any attempt hy
Warden Risley to treat him otherwise is in effect lengthening
his sentence. A court order now designating him as dangerous
augments his prior valid sentence constituting double
jeopardy. The State, on the other hand, argues that his
sentence, by its silence, gives a presumption of the
dangerous designation so no double jeopardy is implicated by
the District Court's clarification.
Double jeopardy can occur when a defendant's punishment
is increased after a valid sentence is imposed. United
States v. Best (9th Cir. 1978), 571 F.2d 484, 486; Borum v.
United States (D.C. Cir. 1967), 409 F.2d 433, 440.
We hold, however, that no double jeopardy occurred in
the appellant's case because the District Court simply
clarified its earlier sentence to conform with what it
originally intended.
It is inherent in the District Court's power to correct
clerical errors in its own judgments in order to make the
record speak the truth as to what was actually decided.
Dahlman v. Dist. Ct., Seventeenth Jud. Dist. (Mont. 1985),
698 P.2d 423, 425, 42 St.Rep. 550, 553. The error must be
apparent on the face of the record to insure that the
correction does not in effect set aside a judgment actually
rendered nor change what was originally intended. State ex
rel. Kruletz v. District Court (1940), 110 Mont. 36, 40, 98
P.2d 883, 885.
It is clear from this Court's review of the record that
the District Court intended to designate the defendant as
dangerous. The statute applicable to this case is 5
46-18-404 (I), MCA (1978), which read as follows:
(1) The sentencing court shall designate an
offender a nondangerous offender for purposes of
eligibility for parole under Part 2 of Chapter 23
if :
(a) during the 5 years preceding the commission of
the offense for which the offender is being
sentenced., the offender was neither convicted of
nor incarcerated for an offense committed in this
state or any other jurisdiction for which a
sentence to a term of imprisonment in excess of 1
year could have been imposed; or
(b) the court has determined, based on any
presentence report and the evidence presented at
the trial and the sentencing hearing, that the
offender does not represent a substantial danger to
other persons or society.
The presentence report shows that the defendant had been
convicted of felony burglary in Oregon within the last five
years preceding the homicide and had several other
convictions including one for statutory rape in Texas and one
for lust under 14 years in California.
That the sentencing court contemplated a dangerous
offender designation is evident from the following exchange
which took place at the sentencing:
MR. HANSER: Your Honor, does the Court want a
specific finding that the defendant is a dangerous
offender?
THE COURT: Yes. I think that follows in the
statute.
MR. HANSER: I believe it does, Your Honor.
THE COURT: But you can do that if you want to.
Through error or oversight such a designation was
omitted from the written judgment. The District Court held a
hearing to enable it to clarify its earlier judgment. It
entered findings of fact and conclusions of law to the effect
that the defendant was not entitled to a nondangerous
designation and deemed him dangerous for purposes of parole.
These findings are well supported by the record.
This Court does not attempt to pass upon the validity of
the appellant's argument that no designation under the former
statute creates a presumption of nondangerousness. It is
unnecessary to address this issue because o f the District
Court's nunc pro tunc order.
Accordingly, we affirm the District Court.
We Concur: -r