State v. Savaria

NO. 95-098
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICHARD A. SAVARIA,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
William F. Hoc)ks, Appellate Defender, Helena,
Montana
For Respondent:
Hon. Joseph Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
Betty Wing, Missoula County Deputy County Attorney,
Missoula, Montana
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Appellant, Richard Savaria was sentenced in the Fourth
Judicial District Court, Missoula County to a term of ten years in
the Montana State Prison on seven counts of felony theft.
We affirm the conviction and remand for resentencing
The issue on appeal is whether the District Court erred in
failing to consider the alternatives to imprisonment at the Montana
State Prison for a non-violent felony offender, pursuant to §§ 46-
18-201(10) and 46-18-225, MCA.
It is undisputed that the appellant is a non-violent felony
offender pursuant to the statutory definition contained in § 46-18-
104 (3), MCA, and the court should have considered 8 46-18-201(10),
MCA, which imposes certain obligations on a court sentencing such
an offender:
In sentencing a non-violent offender, the court shall
first consider alternatives to imprisonment of the
offender in the state prison, including placement of the
offender in a community corrections facility or program.
In considering alternatives to imprisonment the court
shall examine the sentencing criteria contained in 5 46-
18-225, MCA. If the offender is subsequently sentenced
to the state prison or a women's correctional facility,
the court shall state its reasons why alternatives to
imprisonment were not selected, based on the criteria
contained in 46-18-225.

-
See State v. Pence (Mont. 1995), 902 P.2d 41, 52 St. Rep. 937;
State v. LaMere (Mont. 1995), 900 P.2d 926, 52 St.Rep. 828, 829-30;
State v. Stevens (1993), 259 Mont. 114, 115-16, 854 P.2d 336, 337-
 The Atcorney General has filed herein a Notice of Concession,
conceding that the matter should be remanded to the District Court
for resentencing.
We hold that the District Court failed to properly sentence
the defendant under applicable sentencing statutes.
We affirm the conviction and remand for resentencing.

Justice
We Concur:

Justices