IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
RICHARD HANNERS, SEP 8 19%&
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana
George Schunk, ~ssistant Attorney General, Helena,
Montana
George Corn, Ravalli County Attorney, Hamilton,
Montana
For Respondent:
Mark Connell, Connell, Beers and Alterowitz,
Missoula, Montana
For Amicus Curiae:
James 3. Obie, Legal Counsel, Department of
Corrections and Human Services, Helena, Montana
Submitted on Briefs: May 21, 1992
~ecided: September 8, 1992
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Fourth
Judicial District, State of Montana, in and for the County of
Ravalli. The State of Montana appeals the District Court's June
28, 1991 order and subsequent Amended Judgment of July 10, 1991.
We reverse.
Two issues are presented for our consideration:
1. Whether the District Court had jurisdiction to amend a
sentence and judgment after it had been pronounced in court,
reduced to writing and filed with the clerk of court.
2. Whether the practice of parole and probation officers
contacting a sentencing court ex parte and post-judgment for the
purposes of obtaining approval to resentence a defendant violates
statutory provisions mandating participation by the prosecution in
a sentencing hearing conducted in open court.
On December 12, l99O, an information was filed in the District
Court, Ravalli County, charging Richard E. Hanners (Hanners) with
the crime of criminal possession with intent to sell, a felony, in
violation of 5 45-9-103, MCA. Defendant Hanners pled not guilty to
the charged offense at his arraignment on January 16, 1991.
However, Hanners moved the court to withdraw his not guilty plea on
April 17, 1991, and he subsequently pled guilty to the offense of
criminal possession of marijuana with intent to sell.
After a presentence investigation report was prepared, a
sentencing hearing was held on May 15, 1991, and Hanners was
sentenced to twenty years1 imprisonment in the Montana State Prison
2
with ten years suspended. The court also imposed a fine of
$25,000. A written judgment reflecting the conviction and sentence
was filed by the District Court on May 31, 1991.
In early June 1991, Department personnel from the Intensive
Supervision Program (the ISP) met with the District Court Judge and
presented their recommendation that the court amend its judgment
and suspend Hannerst entire sentence on the condition that he enter
and successfully complete the ISP. The ISP is a program designed
as an alternative to prison incarceration operated by the
Department of Institutions which has been in effect in several
Montana counties for over two years. This recommendation by
Department personnel (the Department) was done over the objection
of the parole and probation officer of Ravalli County who made an
intensive investigation of Hannerst marijuana growing operation
prior to sentencing. Following this meeting, the Department
contacted the Ravalli County Attorney and requested that he
prepare, for the District Court Judge's signature, an amended
judgment reflecting the suspension of Hannerst sentence pending
participation in the ISP. At the time of the June 19, 1991,
hearing on the amended judgment the County Attorney filed a motion
requesting that the court reject the Department's recommendation of
suspending Hannersl original sentence.
It is the position of the appellant, State, argued by the
County Attorney, that once the District Court signed its May 15,
1991 sentence, it was without jurisdiction to amend it. It has
been well established in Montana once a valid judgment and sentence
have been signed, the court imposing that sentence had no
jurisdiction to vacate or modify it except as provided by statute.
Rivera v. Eschler (1989), 235 Mont, 350, 767 P.2d 336; Petition of
Arledge (1988), 232 Mont. 450, 756 P.2d 1169; Dahlman v. District
Court, Seventeenth Judicial District (1985), 215 Mont. 470, 698
P.2d 423. As of the time of the modification of the judgment by
the District Court Judge, the only statutory provision that such
modification could be done was under the post-conviction relief
statute, 5 46-21-101, MCA. In addition, under a recently enacted
provision applicable to sentencing effective after October 1, 1991,
an offender could petition a sentencing court for an order
directing that his or her sentence of imprisonment be served under
the conditions of home arrest. As was argued by the County
Attorney to the District Court Judge, this provision is distinct
from the ISP. At the date of this amended sentence, there was
neither a statutory nor an administrative rule providing for the
modification of a sentence following the recommendation by the
Department for the ISP.
While 4 45-9-202(2) (d) , MCA (1991), now effective, does allow
the sentencing authority to designate at the time of sentencing the
ISP program with provisions, such authority did not grant the
District Court jurisdiction to modify a previously rendered
sentence.
We hold that the District Court's actions in ordering the
amended judgment prepared and subsequent signing and filing of that
amended judgment was an improper exercise of the District Court's
jurisdiction. The amended judgment is therefore null and void and
should be declared stricken from the record and the matter returned
to the District Court to enter a proper sentence under the existing
law.
While the second issue of whether the practice of parole and
probation officers contacting a sentencing court ex ~ a r t e
and post-
judgment for the purposes of obtaining approval to resentence a
defendant violates statutory provisions mandating participation by
the prosecution in a sentencing hearing conducted in open court is
before us, we find that having determined that the District Court
lacked jurisdiction to modify the sentence, this second issue will
not be considered.
The District Court is reversed and this cause is remanded with
instructions consistent with this opinion.
A
We concur: I !
Justices
Justice Terry I. Trieweiler dissenting.
?
I dissent from the majority opinion.
The majority states the rule of law correctly as far as it
goes. A sentencing court has no jurisdiction to vacate or modify
a sentence, excevt as vrovided bv statute. What the majority fails
to point out is that under the circumstances presented in this case
there was specific statutory authority for the District Court's
modification of the defendant's sentence.
Section 46-18-203, MCA (1989) (the form of that statute that
was in effect at the time that this sentence was modified),
provided in relevant part as follows:
(1) A judge
of a sentence ...
...
who has suspended the execution
of imprisonment under 46-18-201 ..
.
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 his
court.
In this case, the District Court suspended part of the
sentence which was imposed by written judgment on May 31, 1991.
Therefore, pursuant to 46-18-203, MCA, the District Judge
retained jurisdiction to, in his discretion, place the defendant
under the jurisdiction of the Department of Institutions. That is
exactly what he did.
The defendant did not initiate his enrollment in the intensive
supervision program. He was contacted by representatives from the
Corrections Division of the Montana Department of Institutions who
suggested the intensive supervision program as an alternative to
incarceration at the State Prison. That program, which is intended
to eliminate overcrowding at the prison while still punishing and
supervising those who are convicted of crimes, provides for an
eight or nine month incarceration in the defendant's home with
intensive supervision by probation and parole officers. The
supervision includes electronic monitoring, unscheduled visits and
searches, urinalysis, participation in employment counseling, and
community service. At the end of the eight months of house
incarceration, the defendant is placed on regular probation during
the duration of his sentence.
The defendant agreed to be considered for the program and the
screening committee unanimously agreed to recommend him for
placement in the program. A member of the committee advised the
District Judge of this option. The prosecuting attorney was
advised of the District Court's inclination to agree with this
option. The prosecuting attorney objected and a hearing was held
before the sentence was modified.
After the sentence was modified, defendant complied with the
terms of the intensive supervision program. At all times during
his compliance he was under the supervision, and therefore,
jurisdiction of the Department of Institutions, as provided for in
5 46-18-203, MCA (1989).
Now that he has fully complied with the terms of the sentence
that was requested by one state agency (Department of
Institutions), he is being required to serve a second sentence
because of the objection of a second state agency (County
Attorney's Office). Because of the alternative sentence which was
requested by the Department of Institutions for the State of
Montana, the defendant served eight months of house arrest and was
denied the opportunity to have his prison sentence behind him by
now.
Even if I did not conclude that the District Court had
jurisdiction to modify the defendant's sentence pursuant to the
aforementioned statute, I would conclude that one agency of the
state is estopped from imposing a second sentence on the defendant
after a different agency of the state had induced him to serve his
sentence in a different manner. Estoppel arises when a party by
his or its acts causes another in good faith to change his position
to his detriment. Powers Mfg. Co. v. Leon Jacobs Entepises (1985), 216 Mont.
407, 701 P.2d 1377. That is certainly what happened to the
defendant in this case.
Through no fault of his own, and based upon the majority's
willingness to overlook the statutory basis for the District
Court's continuing jurisdiction to do what it did in this case,
incredibly, this defendant is being requiredto serve two sentences
for the same crime.
The majority opinion is, to say the least, a strange and
unfair result.
For these reasons, I dissent.