No. 95-i28
IN THE SUPREME COURT OF THE STATE OF MONTAfuAfuA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz, Montana Defender roject,
University of Montana Law School,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General ,
Pat Jordan, Assistant Attorney General,
Helena, Montana
Deborah Butler, Acting Jefferson County Attorney,
Boulder, Montana
Submitted on Briefs: August 17, 1995
Jcstice James C. Selson delivered the =pinion of the Court
On June i, 1983, the District Court for the Fifth judicial
District, Jefferson County, sentenced defendant Lynn W . Docken
Upon petition, the District Court revoked the suspended sentence
and imposed another five-year suspended sentence. Upon a second
petition, the District Court revoked the second suspended sentence
and imposed a five-year prison term. Docken appeals from the
judgment imposing the prison term. We affirm.
Docken raises the following issue on appeal:
Did the District Court have jurisdiction to revoke Docken's
five-year suspended sentence and impose a second five-year
suspended sentence?
BACKGROUND
On February 8, 1989, the State charged Docken with one count
of forgery and, alternatively, with one count of forgery through
common scheme. The District Court sentenced Docken to five years
imprisonment for forgery through common scheme and suspended her
sentence under certain conditions.
Approximately four years later, the State petitioned to revoke
Docken's suspended sentence for probation violations including
possession of a firearm, failure to pay fines, misdemeanor
offenses, and responding violently to law enforcement officers.
Docken admitted the allegations of the petition. Concerned about
the weil-being of Docken's chlld, the probation officer recommended
probation. The Dlstrict Court revoked Docken's suspended sentence,
stated that she was nat tc be given credit for time served, a c
ni
imposed the original five-year suspended sentence.
Two and one-half months later, rne State again petrt~onedto
revoke Docken" suspended sentence, alleging violations of her
probation for use of unlawful drugs, possession of alcoholic
beverages, failure to make restitution, and failure to maintain
employment. The District Court revoked Docken's second suspended
sentence, did not allow credit for her time already spent on
probation, and ordered her imprisoned at the Women's Correctional
Facility for five years. Docken appeals the District Court's
revocation of her suspended sentence and her sentence of
imprisonment for five years.
DISCUSSION
Did the District Court have jurisdiction to revoke Docken's
five-year suspended sentence and impose a second five-year
suspended sentence?
Section 46-18-203(1), MCA, gives the sentencing judge the
discretion to revoke a suspended sentence. State v. Otwell (19891,
240 Mont. 376, 377, 784 P.2d 402, 403. We will not overturn "a
District Court's revocation of a suspended or deferred sentence
absent a showing that the court abused that discretion." State v.
Strangeland (1988), 233 Mont. 230, 234, 758 P.2d 776, 778 (citing
State v. Robinson (19801, 190 Mont. 145, 149, 613 P.2d 813, 815).
However, where, as here, che issue involves the existence of the
court's jurisdiction to exercise the discretion conferred by the
statute, our review is plenary.
Docken" sargments are two-fold. She claims that the District
Court did not have jcrisdiction to impose a suspended sentence and
then revoke it and impose a second suspendeo sentence. Because she
argues that the District Court lacked jurisdiction to impose the
second suspended sentence, Docken also claims that the subsequent
revocation of the second suspended sentence and imposition of a
sentence of five years in the Women's Correctional Facility is
void.
Docken relies on our decision in State v. Downing (1979), 181
Mont. 242, 593 P.2d 43, to assert that the District Court lacked
jurisdiction to revoke her suspended sentence and impose a second
suspended sentence. The State asserts that this Court should
follow its reasoning in Speldrich v. McCormick (1990), 243 Mont.
238, 794 P.2d 339; and State v. Oppelt (1979), 184 Mont. 48, 601
P.2d 394, to hold that the District Court had the authority to
reimpose the suspended sentence and retain jurisdiction.
In Downing the defendant pleaded guilty to burglary of a motor
vehicle, a felony, and was sentenced to three years imprisonment,
suspended on various conditions. Two and one-half years later, on
petition of the county attorney, the district court revoked the
defendant's suspended sentence and entered another judgment whereby
Downing was sentenced to spend sixty days in the county jail and
thirty-four months on suspended sentence status. Over a year and
a half later (after the defendant has served his sixty days) the
county attorney f iied a petition to revoke the suspended portion of
the defendant's sentence. The district court denied the
deferidant3s motion to dismiss the petition and, granting che
petition, ordered him to serve the remaining thirty-four months of
his suspended sentence. Downinq, 593 P . 2 a at 44.
On appeal, Downing conceded that the district court had the
power to revoke his suspended sentence and order him to serve a
three-year term in prison. However, he argued that the district
court did not have the statutory authority to revoke his suspended
sentence and then modify the original sentence. Downinq, 593 P.2d
at 44. We noted that "[olnce a valid sentence is imposed, the
court lacks jurisdiction to vacate or modify it unless specifically
authorized by statute." Downinq, 593 P.2d at 44.
Section 95-2206(61, RCM (1947), the statute in effect at the
time the crime was committed, provided that any judge who has
suspended the execution of a sentence may:
revoke such suspension or impose sentence and order such
person committed, or may, in his discretion, order the
prisoner placed under the jurisdiction of the state board
of pardons as provided by law, or retain such
jurisdiction with this court.
We determined that this section allowed the sentencing court three
mutually exclusive alternatives in dealing with a defendant who has
violated the conditions of probation. We stated that the
sentencing court may " ' . . . revoke such suspension . . . and order
such person committed. . . [or] retain such jurisdiction with this
court.'" Downinq, 593 P.2d at 45.
We concluded that, on the first petition to revoke, the court
exercised the first alternative under the statute, i.e., to revoke
che suspended sentence and order the defendant committed. We
determi~edt h a t the court erred, however, in going beycnd simply
revoking Downing's suspended sentence and committing him by instead
requiring him to serve sixty days in the county jail and another
thirty-four months on suspended sentence. We held that there was
no statutory authority for the district court to grant the county
attorney's second petition to revoke Downingis suspended sentence
and that the district court no longer had jurisdiction to impose a
second sentence. Downinq, 593 P.2d at 45.
Notwithstanding Downinq and without reference to our decision
in that case, we subsequently held that a district court had
jurisdiction to revoke a suspended sentence and impose a term of
incarceration plus a second suspended sentence when the length of
the original sentence remained the same. Sweldrich, 794 P2.d at
340 (remanding for the district court to state its reasons for
allowing or rejecting elapsed time as credit against the sentence).
In Saeldrich, the defendant was found guilty of aggravated
assault, a felony, and was sentenced to five years in the Montana
State Prison, suspended on conditions. Over four years later, on
petition, the district court revoked and vacated the suspended
sentence and ordered the defendant to serve five years in prison,
two of those years suspended on conditions. Saeldricn, 7 9 4 P.2d at
339.
In reviewing the defendant's peti-tion for writ of habeas
corpus, we stated our concern as being whether "there was any
Limitation upon the power of the District Court to reimpose the
original five year sentence after completion of four and one-half
years of the suspended sentence." Speldi-ich, 794 P.2d a",j~C.
After reviewing "relevant statutory and case law" we concluded,
however, that "the Districc Court had jurisdiction to revoke :e
h
suspended sentence and to impose the original sentence of five
years with two years suspended." Speldrich, 794 P.2d at 340.
While it might be argued that in Downinq we focused on the
district court's modification of the defendant's original sentence
and that in Speldrich we upheld the district court's imposition of
a second suspended sentence because the original sentence was not
altered, a careful reading of both cases reveals that such an
argument is semantics. In Downinq, the court revoked the original
thirty-six month suspended sentence and then imposed sixty days of
incarceration and thirty-four months suspended; in Sueldrich, the
court revoked the original five years suspended sentence and
imposed three years incarceration and two years suspended. In
neither case was the length of the original sentence modified; in
both cases the first revocation of suspension was followed by a
combination of incarceration and suspension. Finally,
notwithstanding that the pertinent language in statutes in effect
when each case was decided--§ 95-2206(6), RCM 1947, (Downing) and
5 46-18-203(I),MCA (S~eldrich!
--isvirtually the same, the results
of the two cases are irreconcilable. Under such circumstances, it
is again appropriate that we examine the language of the statute.
In reviewing the District Court's jurisdiction in this case we
look to 5 46-18-203(1) (1987), MCA, because it was the statute in
effect at the time the crime was committed. See State v. Azure
[197Sj, ; 9 Mont. 281, 282, 587 P.2d 1297, 1298.
7 Section 46-i8
,
203 (1) (1987) MCA, provides in pertinent part:
F: ?udge . . . who has suspended the execution of a
sentence . . . is authorized in his discretion to revoke
the suspension or impose sentence and order the person
commit"id. ie may also, in his discretion, order the
4
prisoner placed under the jurisdiction of the department
of institutions as provided by law or retain such
jurisdiction with his court. [Emphasis added.]
This Court has construed "retain such jurisdiction with his
court" to be synonymous with continuing a suspended sentence. See
Opoelt, 601 P.2d at 397; State v. Rogers (19941, 267 Mont. 190,
After conviction, the decision to suspend a sentence is
a 'decision to forego complete denial of liberty by
incarceration in favor of a judicially-supervised period
of restricted liberty . . . . In essence, the trial court
retains jurisdiction over the defendant by imposing
conditions on defendant's freedom to which he agrees to
abide. [Citations omitted and emphasis added.]
In the instant case, the District Court had the statutory
authority under 5 46-18-203(l), MCA (1987), to revoke Docken's
l~he dissent, by footnote, points to a difference between the
Montana Reports and the Pacific Reporter Second with regard to
certain language quoted from Oaoelt. Marutzky v. State (0kla.Cr.
L973!, 514 P.2d 430, 431, was cited in Ouwelt as authority for the
statement at issue. In Marutzky, the court stated: "The court
maintains continuing jurisdiction via a judgment and sentence which
imposes subsequent conditions upon defendant's freedom, conditions
to which defendant agrees to abide." Accordingly, for whatever
reason the full quote from Oooelt was not included in the Montana
Reports, the Pacific Reporter Second language is a more accurate
paraphrase of the language in Marutzky than is the language from
the Montana Reports. Moreover, the original opinion of this Court
oc file with the Clerk of Court as Cause No. 14289 (decided October
17, 19791 contains the ianguage as set forth in the Pacific
Reporrer .
originally irn~csedsuspx-~dedseneerxe. Under Speldrich, cZe court
also had the power to retain 2urisdictioc over the defendant by
reimposing the original five year sentence and then suspending che
sentence reimposed. Since in Soeldrich we uphaid the court's
authority to revoke and then reimpose the original sentence via a
combination of imprisonment and suspension both totaling no greater
than the length of the original sentence, it follows that here the
sentencing court likewise had the authority to revoke, reimpose,
and then suspend the entirety of the defendant's original sentence,
so long as the reimposed sentence did not exceed the length of the
original sentence. Sueldrich, 794 P.2d at 340.
The State argues that this Court should overrule Downinq. We
agree. Our holding in Downinq is inconsistent with our holding in
Sueldrich. On carefully reexamining Downinq, we conclude that our
decision was in error. Contrary to our interpretation of 5 95-
2206(6), RCM 1947, that statute provided more latitude to the
district court than our restrictive reading allowed. Under the
plain language of S 95-2206(6), RCM 1947, the court could revoke
ehe suspended sentence or impose sentence and order the defendant
committed, or order the prisoner placed under the jurisdiction of
tne state board of pardons, or retain jurisdiction. Under the
statute as written, revoking the suspended sentence did not require
imposing sentence and ordering commitment. While revocation,
imposition of sentence, and order of commitment was one alternative
availabie to the district court, the court also had jurisdiction to
revoke the suspended sentence and retain jurisdiction. If the
ccmrt retained jurisdiction, t h e n it retained the ability to
suspend or partially suspend the imposition of sentence. -
See
O~oeit,601 P.2d at 397. Although SoeLdrich d i d not specifically
a d d r e s s Downing a s it should h a v e , it is clear that our decision in
S~eldricheffectively overruled Downinq. If that was not evident
then, it is now, by our decision here.
In the instant case, the District Court did not modify
Docken's original sentence but, rather, under the authority of 5
46-18-203(I), MCA (l987), and consistent with Sweldrich, it revoked
her suspended sentence and then reimposed the original five-year
sentence. Choosing to retain jurisdiction under 46-18-203(1),MCA
(1987), the court then suspended all five years of the sentence.
Having thus retained jurisdiction, the District Court had authority
under 5 46-18-20l(l), MCA (l987), to then revoke Docken's second
suspended sentence and order her commitment to the Women's
Correctional Facility for the full term of five years. We hold
that the District Court had the statutory authority, and thus
jurisdiction, to impose the second suspended sentence and that its
decision to subsequently revoke that suspended sentence is not
void.
Justices
Justice Charles E. Erdmann did not participate in this opinion.
justice Terry N. Trieweiler dissenting
I dissent from the majority opinion which uses semantic smoke
and mirrors to ignore the plain iangnage of § 46-18-263,NCA. Tne
role of this Court in the construction of a statute is simply to
ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted. Section 1-2-101,
MCA .
As we correctly concluded in Sfute v. Downing (1979), 181 Mont.
242, 593 P.2d 43, Section 95-2206(6j, RCM (1947) (current version
at § 46-18-203, MCA) , simply does not provide the option of
reimposing a second suspended sentence after a first suspended
sentence has been revoked. We appropriately noted, " [tlhe State's
position seems to be that a three year suspended sentence can
technically impede the defendant for the rest of his life."
Downing, 181 Mont. at 244, 593 P.2d at 44. That now seems to be the
majority's position.
We held in Downing that:
Once the decision was made to revoke defendant's
suspended sentence, the District Court had the discretion
to allow credit for the "good time" served by the
defendant, but that is all. Section 95-2206(3), R.C.M.
1947. The District Court did not have the statutory
authority to require defendant to serve sixty days in the
Ravalli County Jail and another thirty-four months on a
suspended sentence. Section 95-2206(6) did not permit
this kind of modification.
Accordingly, there was no authority for the District
Court to grant the county attorney's petition to again
revoke the suspended sentence. At this point, the
District Court no longer has jurisdiction over the
defendmi: and a sentence imposed at this time wouid be
void.
Downing, 1 8 1 Mont. at 245, 533 P.2d at 4 5 .
The majority's conclusion that there is an unreconciled
conflict between Downing and our decision in Speldrich v. rLlcCormick
(1990), 243 Mont. 238, 794 P.2d 339, is nothing more than the
creation of a straw man so that it can be knocked down. There is
no conflict between Downing and Speldrich. Speldrich involves a one and
one-half page order and opinion in which we remanded a case to the
district court for further consideration of the sentence imposed in
light of C; 46-18-201, MCA, which gives the district court the
discretion to credit time served under a suspended sentence against
the actual time served after revocation of that sentence. As we
pointed out in Speldrich, the defendant in that case did not even
appeal his sentence or conviction. That case did not involve the
same issue which we discussed in Downing. Neither § 46-18-203,MCA,
nor its predecessor which was involved in Downing, were raised or
discussed in that case. It is no mystery that the opinion did not
discuss Downing. The State's brief did not even raise Do~~izing
because the same issue was not involved.
After constructing a conflict which does not exisc, the
majority reconciles the conflict by overruling Downing in favor of
an interpretation of 5 46-18-203,MCA, which makes no sense, cannot
be justified by the plain language in the statute, and which in no
way is supported by this Court's one and one-haif page opinion and
order in Speldrich. The majority concludes that that language
contained in § -203 which gives the district court anthority to
laretain jurisdiction," gives it the authority to impose a second
and additional sentence after revoking the first sentence, even
though four out of five years on the first suspended sentence have
already been served. How the meaning of simple language can be
distorted in this fashion is beyond me.
The statute simply does not provide the District Court with
the option of imposing a new and different sentence after revoking
the original suspension of sentence. As we held in Downing, the
plain language of the statute gives the court three alternatives:
(1) It may revoke the suspended sentence and order the person
committed; (2) it may order the person placed under the jurisdic-
tion of the department of institutions; or (3) it may retain
jurisdiction with the court.
The majority takes language out of context from Stale v. Oppelt
(19791, 184 Mont. 48, 601 P.2d 394, for its conclusion that "retain
such jurisdiction with his court" is synonymous with "impose a new
suspended sentence." However, this cut and paste approach to
arriving at its conclusion is not justified. In p p , the
defendant contended that revocation of a suspended sentence based
on conviction of a second crime constituted a double punishment for
the second crime, and therefore, violated the Fifth Amendment
prohibition against subjecting a person tc double jeopardy for the
same offense. In describing a suspended sentence, we stated that
during the period of s-uspensiorithe court retaics jurisdiction over
the defendant's freedom with the option of incarcerating him should
he not comply with the terms of his suspended sentence. We used
that expression to illustrate that when a suspended sentence is
revoked, a defendant is not being punished for a new offense, and
therefore, the prohibition against double jeopardy is not offended.
By no stretch of the imagination can our statement in Oppelt, 184
Mont. at 53, that, "the triai court retains jurisdiction over the
defendant's freedom"' justify the majority's conclusion in this
case that similar language found in § 46-18-203, MCA, allows the
court to impose a new and additional sentence which is not provided
for by statute in the event a defendant violates the terms of his
probation. "Retained jurisdiction" in Oppelt was used solely for the
purpose of explaining why, if a defendant violates a term of
probation, the district court has the authority to impose the
original sentence which was suspended without that action being
considered an additional punishment.
'This dissent quotes language from Oppelt in the Montana
Reporter (which includes the official reports for our decisions) at
page 53 which states that the trial court retains jurisdiction over
"the defendant's freedom." The Pacific Reporter Second, page 397,
on the which majority opinion relies, states that the court retains
"jurisdiction over the defendant."
The majority may like the flexibiiity that its opinion gives
district courts for perpetuating their involvement in the lives of
criminal offenders. A little creative use of the English language
here, and a little distortion of a statute's terms there, and there
is no end to the solutions our district courts could come up with
to deal with what we all concede is anti-social conduct. My
objection to the majority opinion is that it simply is not
authorized by the plain language of the statute we have been asked
to construe.
For these reasons, I dissent from the majority opinion.
Justice William E. Hunt, Sr., joins in the foregoing dissent.