No. 89-22
IK THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
S T A T E O F MONTANA,
p l a i n t i f f and R e s p o n d e n t ,
-VS-
MICHAEL D.W. LANGE,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S e v e n t h ~ u d i c i a l i s t r i c t ,
D
I n and f o r t h e C o u n t y of R i c h l a n d ,
T h e H o n o r a b l e D a l e C o x , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
R i c h a r d J. C a r s t e n s e n , B i l l i n g s , M o n t a n a
For R e s p o n d e n t :
Hon. M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
~ a t r i c i a . Schaeffer, A s s t . A t t y . G e n e r a l , H e l e n a
J
victor G. K o c h , C o u n t y A t t o r n e y , sidney, M o n t a n a
S u b m i t t e d on B r i e f s : A p r i l 20, 1989
Decided: June 6 , 1 9 8 9
Mr. ~ustice ~ i l l i a mE. Hunt, Sr., delivered the opinion of
the Court.
The ~istrict Court of the Seventh Judicial District,
Richland County, revoked the suspended sentence of Michael D.
W. Lange, the defendant, for violations of the conditions of
his probation, under S 46-18-203, MCA, in 1986 and again in
1988. Lange appeals. We affirm.
The following issues are raised on appeal:
1. Whether the 1986 revocation of defendant's suspended
sentence violated the double jeopardy clauses of the united
States and Montana constitutions rendering all further
proceedings unconstitutional.
2. Whether substantial evidence supported the District
Court's exercise of discretion in revoking defendant's 1988
suspended sentence.
3. Whether defendant's due process rights were violated
during the May, 1988 revocation hearing because he was unable
to confront and cross examine a witness.
On November 2, 1983, a jury convicted defendant for the
1981 felony offenses of criminal sale of dangerous drugs and
criminal possession with intent to sell in violation of S S
45-9-101 and 45-9-103, MCA (1981). On February 29, 1984, he
was sentenced to ten years with all suspended subject to
conditions of probation. In 1986 defendant failed to report
to his probation officer on several occasions. For these
violations the District Court, on August 27, 1986, ordered a
revocation of the February 29, 1984 sentence under S
46-18-203, MCA, and defendant was sentenced to serve ten
years with eight years suspendea again subject to conditions
of probation upon release.
On December 3, 1986, defendant was paroled from the
Montana State Prison and moved to North Dakota. At that time
he was subject to the supervision of a North Dakota probation
officer . Montana retained jurisdiction of defendant during
his probationary period.
In May, 1988, defendant's probation officer was
contacted by security police at North Dakota State College of
Science who informed him that defendant was suspected of
selling marijuana on campus. Consequently, on May 17, 1988,
the probation officer authorized a search of defendant ' s
dormitory room, his person, and a vehicle owned by
defendant's girlfriend but used by him. Nothing ~u'~stantia1
was found in his room but the search of the vehicle revealed
the remnants of a greeting card with residue of a
vegetable-like substance which later tested positive for
marijuana. A urinalysis test of defendant was administered
on the day of the search and later on May 23, 1988. Both
tests revealed recent marijuana use. The greeting card
residue and urinalysis samples were analyzed and documented
by the North Dakota State Toxicologist. Use and possession
of dangerous drugs by the defendant were violations of his
1986 conditions of probation.
On June 4, 1988, defendant's eight year probationary
portion of his sentence began under the supervision of his
North Dakota probation officer. On June 10, 1988,
defendant's probation officer filed a report concerning the
May, 1988, violations of probation and, on August 19, 1988,
the Richland Deputy County Attorney filed a petition for
revocation of defendant's suspended sentence based on the
report.
A hearing concerning the violations was conducted on
September 19, 1988, and then continued to October 3, 1988.
On October 25, 1988, the District Court found that defendant
did indeed violate the conditions of his probation by the use
and possession of marijuana in May, 1988. Consequently, the
~istrict Court revoked his suspended sentence under S
46-18-203, MCA, and sentenced defendant to five years in the
Montana State prison with five days credit for jail time
previously served.
The first issue raised on appeal is whether the 1986
revocation of defendant's suspended sentence violated the
double jeopardy clauses of the united States and Montana
constitutions by enhancing his punishment thus, rendering all
further proceedings unconstitutional.
The Fifth Amendment to the united States Constitution
provides that no person shall "be subject for the same
offense to be twice put in jeopardy." The clause protects
offenders from multiple punishment for the same offense. Ex
Parte Lange (1874), 85 U.S. (18 Wall.) 163, 21 L.Ed. 872.
The Montana Constitution affords a similar protection.
section 25, Art. 11, 1972 Mont. Const., provides that, "No
person shall be again put in jeopardy for the same
offense. . ." We have held, however, that the revocation of
a suspended sentence does not subject defendant to jeopardy
twice for the same offense. Matter of Ratzlaff (19771, 172
Mont. 439, 445, 564 P.2d 1312, 1316.
A revocation hearing is not a criminal trial, petition
of Meidenger (1975), 168 Mont. 7, 15, 539 P.2d 1189, 1190,
since there is no adjudication of guilt or innocence. rial
concerns a new crime while a revocation hearing concerns only
whether the conditions of a suspended sentence had been
violated. Marutzky v. State (Okla. rim. App., 1973), 514
P.2d 430, 431. "The subsequent conduct, not his original
offense, forms the basis of revocation and reinstates the
original sentence." Ratzlaff, 564 P.2d at 1316. The
defendant, in this case, remained subject to the original
sentence as if it had never been suspended, and he must live
with the knowledge that "a fixed sentence for a definite term
hangs over him." Ratzlaff, 564 P.2d at 1316, and Roberts v.
united States (1943), 320 U.S. 264, 268, 64 S.Ct. 113, 115,
88 L.Ed. 41, 44.
Under 5 46-18-203(l), MCA, the District Court retains
jurisdiction over defendant during the period of probation.
See State v. Oppelt (1979), 184 Mont. 48, 53, 601 P.2d 394,
397, and Marutzky, 514 P.2d at 431. A revocation hearing is
simply an exercise of the trial court's supervision over
defendant during probation and the consequence of revocation
is execution of a penalty previously imposed. - Marutzky,
See -
514 P.2d at 431.
We agree. As stated in State v. Eckley (1978), 34
0r.App. 563, 579 P.2d 291:
Because the revocation proceeding is not a criminal
adjudication, does not require proof of a criminal
offense, does not impose punishment for any new
offense, and is an act in the performance of the
duty of judicial supervision of probationary
liberty . . . the Double Jeopardy Clause . . . is
inapplicable.
In this case, defendant violated the conditions of his
1986 probation by his failure to report to his probation
officer. After a revocation hearing, he was sentenced to
serve 10 years with two years suspended. We hold the
revocation of defendant's suspended sentence did not violate
the double jeopardy clauses of the United States and Montana
Constitutions.
Defendant next argued that the District Court abused its
discretion because the revocation was not based on
substantial evidence. We disagree.
The revocation of a suspended sentence comes within the
purview of judicial discretion but must be supported by
substantial evidence. State v. Lange (Mont. 1987), 733 P.2d
846, 848, 44 St.Rep. 418, 420. The ~ i s t r i c tCourt revoked
defendant's suspended sentence for violating the conditions
set forth in its August 27, 1986 judgment:
That he violate no laws, city, county, state or
federal.
That he use no drugs of any kind unless prescribed
to him by a licensed physician and that he not be
in or about any place where dangerous drugs, as
that term is defined by the State of Montana, are
being used, dispensed or sold.
The judgment also required that defendant submit to a search
of his person, residence or vehicle, or an examination of his
bodily fluids upon reasonable request of his probation
officer.
On May 17, 1988, defendant's probation officer
authorized a search of defendant's dorm room, his person, and
a vehicle owned by defendant's girlfriend but used by him.
The search was based on information received from the North
Dakota State College of Science security police that
defendant was suspected of dealing drugs. The search of
defendant's car produced remnants of a smoked greeting card
with a vegetable-like substance in its creases. Just prior
to the search, defendant admitted to his North Dakota
probation officer that he used a greeting card to roll and
smoke a marijuana cigarette the previous week. An analytical
report from the North Dakota State Toxicologist confirmed the
residue taken from the card was indeed marijuana. Further,
two urinalysis tests were administered to defendant at his
probation officer's request on May 17 and May 23, 1988. Both
tests, also analyzed by the North Dakota State ~oxicologist,
confirmed recent marijuana use. Defendant made a second
admission of marijuana use to his probation officer when the
first urine sample was requested. During the revocatio~
hearing, defendant's probation officer testified to these
events. Letters from the State Toxicologist which confirmed
and explained the test results were admitted into evidence.
We hold that this evidence meets the substantial evidence
standard.
Further, 5 46-18-203(1), MCA, provides in part:
A judge ... who has suspended the execution of a
sentence ... under 46-18-201 or his successor is
authorized in his discretion to revoke the
suspension or impose sentence and order the person
committed.
We will not reverse the District Court's revocation of
defendant's suspended sentence absent a showing of abuse of
discretion. See State v. Stangeland ( ~ o n t .1988), 758 ~ . 2 d
776, 45 St.Rep. 1446. The facts relied upon need not
establish guilt beyond a reasonable doubt. State v. Robinson
(Mont. 1980), 619 P.2d 813, 37 St.Rep. 1830. We held in
State v. Kern (1984), 212 Mont. 385, 389, 695 P.2d 1300,
... All that is required is that the facts before
him be such that the judge is reasonably satisfied
that the conduct of the probationer has not been
what he agreed it would be if he were given
liberty.
The District Court properly used its discretion when it
ordered the revocation of defendant's suspended sentence
based on the testimony of the probation officer and the
letters from the North Dakota State Toxicologist.
The last issue raised on appeal is whether defendant's
due process rights were violated during the 1988 revocation
hearing because he was not able to confront or cross-examine
the North Dakota chemist who analyzed and documented the
urinalysis tests. The chemist did not testify at the
revocation hearing. Instead, letters from the chemist to
defendant's probation officer, which confirmed and explained
the toxicology test results, were presented as evidence.
In this case, defendant stipulated that the letters
could be received into evidence for the truth of the matter
asserted during the 1988 revocation hearing. The defendant
never specifically objected to the denial of his right to
confront and cross-examine the chemist. He merely objected
to his probation officer as an unqualified witness to give
testimony about the contents of the chemist's letters.
In fact, defendant's counsel stated:
Your Honor, we agreed that this gentleman [the
chemist] did not have to appear and recite as
evidence what was in his report, and what was in
his report could be received in evidence without
foundation, that's correct.
Defendant stipulated that presence and testimony of the
chemist was not necessary and cannot now complain that his
right to confront and cross-examine the witness was denied.
Affirmed.