No. 90-356
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BERNARD JAMES FITZPATRICK,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur J. Thompson, Thompson & Sessions, Billings,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Kathy Seeley,
Assistant Attorney General, Helena, Montana; Harold
Hanser, Yellowstone County Attorney, Curtis L.
Bevolden, Deputy Yellowstone County Attorney, John
P. Connor, Jr. and Mark J. Murphy, Special Deputy
Yellowstone County Attorneys, Assistant Attorneys
General, Billings, Montana
Submitted on Briefs: October 19, 1990
Decided: February 12, 1991
Filed: 0
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
The defendant Bernard James Fitzpatrick appeals from the
sentences imposed by the Thirteenth Judicial District Court,
Yellowstone County. We vacate the sentences and remand for
resentencing.
On March 30, 1990, an inmate or inmates cut a hole in the
chain link fence in the recreation yard of the Yellowstone County
detention facility. Seven inmates escaped through the hole,
including Bernard Fitzpatrick, who was being held pending
sentencing following a plea of guilty to deliberate homicide,
aggravated kidnapping and robbery. Following the escape,
Fitzpatrick and another inmate broke into Billings Senior High
School. They stole some clothing and other small items. The
authorities recaptured Fitzpatrick the next morning.
The State charged Fitzpatrick with the felony offenses of
burglary and escape. Fitzpatrick entered guilty pleas to both
counts. In exchange for the guilty pleas, the State agreed to
recommend sentences on the escape and burglary convictions
concurrent to each other, but consecutive to Fitzpatrick's other
sentences.
At the sentencing hearing, all parties stipulated that the
procedural requirements for persistent felony offender designations
had been met. The State then recommended that the court designate
Fitzpatrick a persistent felony offender and requested that the
court impose a sentence of 100 years on each of the charges.
Fitzpatrick requested a ten-year sentence on each count.
The District Court found that Fitzpatrick was a persistent
felony offender. The court sentenced Fitzpatrick to serve ten
years for the escape plus an additional 100 years as a persistent
felony offender and to serve five years for burglary plus an
additional 100 years as a persistent felony offender. Fitzpatrick
appeals from these sentences.
The only issue is whether the District Court sentenced
Fitzpatrick to terms exceeding the statutory maximum for a
persistent felony offender.
A persistent felony offender is sentenced under 5 46-18-502,
MCA , which states pertinent part :
(1) Except as provided in subsection (2), a persistent
felony offender shall be imprisoned in the state prison
for a term of not less than 5 years or more than 100
years or shall be fined an amount not to exceed $50,000,
or both, if he was 21 years of age or older at the time
of the commission of the present offense.
(2) If the offender was a persistent felony offender,
as defined in 46-18-501, at the time of his previous
felony conviction, less than 5 years have elapsed between
the commission of the present offense and either the
previous felony conviction or the offender's release on
parole or otherwise from prison or other commitment
imposed as a result of the previous felony conviction,
and he was 21 years of age or older at the time of the
commission of the present offense, he shall be imprisoned
in the state prison for a term of not less than 10 years
or more than 100 years or shall be fined an amount not
to exceed $50,000, or both.
Clearly, 5 46-18-502, MCA, provides for a maximum term of 100
years for a persistent felony offender, not an additional term of
100 years, as imposed by the District Court in this case. The
sentencing parameters of 5 46-18-502, MCA, replace the maximum
sentence prescribed for the offense. It is not a sentence in
addition to the sentence for the offense.
This Court has interpreted 5 46-18-502, MCA, as increasing
the maximum penalty for the underlying felony to 100 years. In
State v. Metz, 184 Mont. 533, 604 P.2d 102 (1979), defendant was
convicted of sexual intercourse without consent and sentenced to
100 years in prison as a persistent felony offender. In Metz, we
explained that "[d]efendantls sentence is within the maximum
allowable by the persistent felony offender statute. Section 46-
18-502 (I), MCA.I1 Metz
I 184 Mont. at 536, 604 P.2d at 104. In
State v. Tracy, 233 Mont. 529, 761 P.2d 398 (1988), the defendant
was convicted of felony theft, and sentenced to a term of 50 years
as a persistent felony offender, with 40 years suspended. In
reviewing the sentence on appeal, we stated:
Section 46-18-502 (I), MCA, grants the judge discretion
to sentence a persistent felony offender to not less than
5 or more than 100 years in prison.
Tracy, 233 Mont. at 533-34, 761 P.2d at 401.
Here, the District Court could have properly sentenced
Fitzpatrick to serve a maximum of 100 years for escape and 100
years for burglary under 5 46-18-502, MCA. The District Court,
however, imposed sentences exceeding the statutory maximum limits
under the statute. We therefore vacate the sentences and remand
to the District Court for resentencing.
In addition, we note that 5 46-18-502(2), MCA, applies when
a defendant has previously been sentenced as a persistent
felony offender and less than 5 years have elapsed between the
commission of the offense for which the defendant is presently
I
t
being sentenced and the previous felony conviction and sentence as
a persistent felony offender. Section 45-2-101(15), MCA, defines
conviction as a nnjudgment conviction or sentence entered upon
of
a plea of guilty .... 11
In this case, the District Court first entered judgment and
sentenced Fitzpatrick on the escape charge, designating him a
persistent felony offender on that charge. It then entered
judgment and sentenced him on the burglary charge, designating him
a persistent felony offender on that charge. Therefore, even
though only a number of minutes had elapsed between the two
convictions, Fitzpatrick was a persistent felony offender at the
time he was sentenced on the burglary charge, bringing him under
subsection (2) of the persistent felony offender statute. When a
defendant is sentenced under subsection (2), the sentence imposed
must run consecutively to any other sentence. Section 46-18-
502(4), MCA. Thus, subsection (4) requires that any sentences
imposed by the District Court on remand run consecutively.
Vacated and remanded to the ~istrictCourt for resentencing
consistent with this Opinion.
Justice
We Concur: A
/ / Chief Justice
-