No. 88-415
88-422
IN THE SUPREME COURT OF THE STATE OF MONTANA
NO. 88-415
KIM RIVERA,
Petitioner and Respondent,
-vs-
JANET E. ESCHLER, Justice of the Peace,
Justice Court, YELLOWSTONE COUNTY,
MONTANA,
Respondent and Appellant.
NO. 88-422
STATE, ex rel., TERRY VUKASIN,
Plaintiff and Respondent,
-vs-
THE JUSTICE COURT OF YELLOWSTONE COUNTY,
MONTANA, and JANET E. ESCHLER, JUSTICE OF
THE PEACE,
Defendants and Appellants.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harold Hanser, County Attorney, David Hoefer, Deputy,
Billings, Montana (88-415 & 88-422)
For Respondent:
Scott Gratton; Anderson, Brown Law Firm, Billings,
Montana (88-415)
Addison Sessions; Thompson & Sessions, Billings,
cy Wontana (88-422)
4.
1
M " 4
>
-I
. .
.
r--4
-
b i
Submitted: December 9, 1988
F;7
,
.
mu_.
Cf<
_ . .
1 Decided: January 10, 1989
L...
.J >-
-.-
-- ED SMITH
c7r
c:* .-
t
-)
-L Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This case comes to us from the issuance of a writ of
certiorari by the Honorable Robert Holmstrom, Thirteenth
Judicial District Court, Montana, annulling an order entered
by the appellant, Janet Eschler, Justice of the Peace,
Yellowstone County. We affirm.
On September 23, 1986, the respondent, Kim Rivera, was
found guilty of driving a motor vehicle under the influence
of alcohol. Appellant Janet Eschler, Yellowstone County
Justice of the Peace, sentenced the respondent to a one-year
suspended sentence, imposed a fine of $400, required
respondent to complete the Rimrock Foundation DUI school and
"treatment as necessary." At the completion of counseling,
respondent engaged in an exit interview. On the basis of the
interview, Rimrock Foundation counselors recommended the
respondent enroll in an inpatient treatment facility. On
February 4, 1987, appellant ordered the respondent to fol-low
the recommendations of the counselor at the Rimrock
Foundation and perform the following:
(a) That the defendant enroll in a
licensed chemical dependency center;
(b) That the defendant abide by all
aftercare recommendations made by the
facility upon completion of treatment;
(c) That the defendant abstain from all
use of alcohol and drugs;
(d) That the defendant appear before
this court on February 9, 1987, at 4 : 3 0
p.m. At this time defendant shall state
to the court the place and date of his
treatment enrollment. All arrangements
must be made by said date or cause a
warrant to be issued, and defendant
incarcerated.
The respondent petitioned the District Court to exercise
certiorari. On May 26, 3988, District Court Judge Holmstrom
annulled the order, finding appellant lacked jurisdiction to
modify the initial sentence.
The facts and procedure in~rolving the second
respondent, Terry Vukasin, are directly analogous to the
Rivera case. Pursuant to a sentencing order dated November
30, 1987, Vukasin completed an alcohol treatment program. On
January 21, 1988, Justice Eschler directed Vukasin to follow
recommendations of Rimrock Foundation counselors, enroll in a
licensed chemical dependency treatment center and attend
aftercare treatment. On June 20, 1988, District Court Judge
G. Todd Baugh deferred to Judge Holmstrom's decision in the
Rivera case and directed the January 21, 1988 order annulled.
The appellant's motion for consolidation acknowl.edges the
analogous nature of the two cases.
Appellant presents a single issue on appeal:
1. Did Justice of the Peace Eschler have
jurisdiction, pursuant to section
61-8-714(4), MCA, to order respondents,
both convicted of the offense of driving
under the influence of alcohol, to enroll
in a licensed chemical dependency center,
to abstain from all use of alcohol and
drugs, and to abide by all aftercare
recommendations made by the facility upon
the completion of treatment?
In addition, respondents question the constitutionality
of the orders, alleging a violation of their due process
rights by the disallowance of a hearing and counsel prior to
sentencing. Because this appeal can be decided solely on the
question of statutory authority, we need not address
respondents' constitutional argument.
Section 61-8-714, MCA, provides in pertinent part:
61-8-714. Penalty for driving under the
influence of alcohol or drugs. (I) A
person convicted of a violation of
61-8-401 shall be punished
imprisonment in the county jail for not
less than 24 consecutive hours or more
than 60 days, and shall be punished by a
fine of not less than. $100 or more than
$500 . . .
(4) In addition to the punishment
provided in this section, regardless of
disposition, the defendant shall complete
an alcohol information course at an
alcohol treatment program approved by the
department of institutions, which may
include alcohol or drug treatment, or
both, if considered necessary by the
counselor conducting the program. Each
counselor providing such education or
treatment shall, at the commencement of
the education or treatment, notify the
court that the defendant has been
enrolled in a course or treatment
program. If the defendant fails to
attend the course or the treatment
program, the counselor shall notify the
court of the failure.
Appellant contends the language of § 61-8-714(4), MCA, allows
for continuing authority to modify respondents' sentences,
claiming the subsequent order is necessary to enforce the
sentencing statute. This Court does not agree with
appellant's interpretation.
This Court has consistently held that " [olnce 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. . ." State v.
Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711;
Wilkinson v. State (1983), 205 Mont. 237, 667 P.2d 413. For
example, we found such specific authorization in S 46-18-203,
MCA, previously 95-2206, RCM (1947):
[A] judge, magistrate, or justice of the
peace who has suspended the execution of
a sentence or deferred the imposition of
a sentence of imprisonment under
46-18-201 ... is authorized in his
discretion to revoke the suspension or
impose a sentence and orderLthe person
committed. He may also, in his
discretion, order the prisoner placed
under the jurisdiction of the department
of institutions as provided by law - or
retain such jurisdiction with the
court. . . (Emphasis added.)
The plain meaning of the statute gave the district court
three mutually exclusive alternatives for handling a
defendant who violated the terms of his probation, and could
thereby modify the sentence. State v. Downing (1979), 181
Mont. 242, 593 P.2d 43. "While [the alternatj-ves] give the
District Court some latitude in dealing with probation
violators, they do not vest the court with completely
unbridled discretion." Downing, 593 P.2d at 45. The
explicit authorization necessary to modify the original
sentence is notably absent in the present case.
Section 61-8-714, MCA, contemplates all punishment and
treatment he contained in the original order. Any other
interpretation, we believe, would amount to an improper
exercise of jurisdiction. Therefore, we conclude that upon
imposition of the valid sentence, the appellant's aut-hority
to vacate or modify the sentence ceased.
Affirmed.
A
We concur:
A
ief Justice