No. 92-534
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN LEE McGUIRE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeannette Ellen Berry; Berry & Bordy, Bozeman,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Micheal S.
Wellenstein, AssltAttorneyGeneral, Helena, Montana
Thomas J. Esch, Flathead County Attorney, Ed
Corrigan, Deputy Flathead County Attorney,
Kalispell, Montana
Submitted on Briefs: August 12, 1993
Decided: October 4, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
John McGuire appeals the sentence imposed by the Eleventh
Judicial District Court. Flathead County, following conviction for
the offense of burglary. We modify the sentence and remand for
entry of sentence consistent with this opinion.
The issue on appeal is whether the District Court erred by
imposing a sentence consecutive to one not yet imposed by another
district court.
On March 27, 1990, John McGuire (McGuire) pled guilty to a
burglary charge in Flathead County. The District Court granted his
request to postpone sentencing until he completed a drug and
alcohol treatment program at the State Hospital in Galen. McGuire
escaped from that facility in May of 1990.
McGuire was subsequently arrested in November of 1990 for
offenses committed in Gallatin County. He pled guilty to one count
of felony theft and one count of burglary in August of 1992. Prior
to sentencing in Gallatin County, however, McGuire was returned to
Flathead County for sentencing on the earlier burglary conviction.
On September 14, 1992, the Eleventh Judicial District Court,
Flathead County, sentenced McGuire to a twenty-year sentence at the
Montana State Prison, with eight years suspended. The court
ordered that the sentence be served consecutively to the sentence
McGuire subsequently would receive in Gallatin County. On November
4, 1992, McGuire was sentenced for the felony theft and burglary
convictions in Gallatin County. McGuire appeals from the sentence
imposed by the District Court in Flathead County.
Did the District Court err by imposing a sentence consecutive
to one not yet imposed by another district court?
McGuire argues that under g 46-18-401(1)(a), MCA, only a
district court which imposes a sentence subseauent to one already
imposed has the authority to determine whether the sentences will
be concurrent or consecutive to each other. On that basis, he
contends that the Eleventh Judicial District Court exceeded its
sentencing authority by ordering its sentence to run consecutive to
one not yet imposed by the district court in Gallatin County. We
agree.
Section 46-18-401(1)(a), MCA, authorizes a court imposing
sentence on a person already serving a term of commitment to
determine whether the new sentence will be concurrent with, or
c"',secuti.v.e to, A"-
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consecutive sentences under these circumstances automatic lt[u]nless
the judge otherwise orders." Section 46-18-401(1)(a), MCA.
It is clear that this statute is not applicable here and
provides no support for the District Court's order for consecutive
sentences. McGuire was not serving another sentence at the time
the District Court sentenced him on the Flathead County burglary
charge. Thus, we conclude that the Eleventh Judicial District
Court, Flathead County, was without authority to order McGuire to
serve his term of incarceration consecutive to another sentence not
yet imposed.
Furthermore, sound sentencing principles preclude a court from
3
imposing a sentence consecutive to one not yet imposed. By
definition, a consecutive sentence does not begin until the
sentence to which it is consecutive has been satisfied. On that
basis, a sentence ordered to run consecutively to one which has not
been imposed creates problems of implementation. Furthermore, when
a court orders a sentence to run consecutively to one not yet
imposed, the court does so without knowing the length of the future
sentence; therefore, it lacks an adequate basis for the exercise of
its discretion. Finally, the imposition of consecutive sentences
under these circumstances interferes with the sentencing discretion
of the court which will impose the future sentence. &g State v.
King (Ariz. App. 1990), 802 P.2d 1041.
On appeal from a criminal conviction, we may reverse, affirm
or modify the judgment or order from which the appeal is taken.
Section 46-20-703, MCA. Because we have determined that the
District Court in Flathead County exceeded its sentencing
authority, we modify the judgment and sentence by striking the
provision ordering McGuirers sentence to be consecutive to one not
yet imposed in Gallatin County, affirm the remainder of the
sentence, and remand this cause to the District Court for entry of
sentence consistent with this opinion.
./
October 4, 1993
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Jeannette Ellen Berry
BERRY & BORDY
2631 West Main Street
Bozeman, MT 59715
HON. JOSEPH P. MAZUREK, Attorney Generl
Micheal S. Wellenstein, Assistant
Justice Bldg.
Helena, MT 59601
Thomas J. Esch, County Anorney
Ed Conigan, Deputy
Flathead County, P.O. Box 1516
Kalispeil, MT 59903-1516
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA