No. 95-241
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
BRET CHRISTOFFERSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent. i\l.l(j % 9 ,1995
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APPEAL FROM: District Court of the ~welfth"~~&@T~1"b4Y?~ict,
In and for the County of Liberty,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bret Christofferson, Pro Se, Deer Lodge, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Patricia Jordan, Assistant Attorney General,
Helena, Montana
Merle Raph, Special Deputy Liberty County Attorney,
Shelby, Montana
Submitted on Briefs: August 4, 1995
Decided: August 29, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Bret Christofferson appeals from an order of the Twelfth
Judicial District Court, Liberty County, denying his petition for
post-conviction relief. We affirm.
In the absence of a statement of the issue by Christofferson,
we state the issue as whether the District Court erred in denying
the petition for post-conviction relief.
In January 1992, Christofferson was adjudged guilty of
burglary, based upon a plea bargain. He was sentenced to ten
years' imprisonment, with five years suspended. The court set
forth ten terms and conditions of probation for the period of
suspension.
Christofferson began serving his prison sentence on January
22, 1992, and was paroled on April 8, 1993. In December 1993, the
State of Montana petitioned for revocation of Christofferson's
suspended sentence because he had violated terms and conditions of
the January 1992 judgment. After a hearing, the District Court
revoked the suspended portion of Christofferson's sentence and
ordered that he shall serve the remaining portion of his ten-year
sentence at the Montana State Prison, with credit given for time
expired on the sentence.
Christofferson was returned to Montana State Prison. There,
the Board of Pardons notified him that it had revoked his remaining
parole time on the non-suspended portion of his sentence.
Christofferson wrote to the District Court in protest, arguing that
he is being subjected to double jeopardy.
Construing Christofferson's letter in a manner in which relief
could possibly be granted at that stage of the proceedings, the
District Court considered the letter as a petition for post-
conviction relief. It asked for a response from the State of
Montana. The court subsequently ruled that it did not constitute
double jeopardy for it to revoke the suspended part of Christoffer-
son's sentence and for the Board of Pardons to revoke his parole on
the non-suspended portion of the sentence. Christofferson appeals.
Did the District Court err in denying the petition for post-
conviction relief?
The facts underlying Christofferson's petition for post-
conviction relief are not in dispute. In reviewing a district
court's denial of post-conviction relief, we will not overturn the
court's legal conclusions if the court's interpretation of the law
is correct. Wagner v. State (Mont. 1995), 889 P.2d 1189, 1190, 52
St.Rep. 61, 61.
Christofferson's argument is based on his perception that, at
the revocation hearing, the District Court determined that he had
already finished the non-suspended portion of his sentence and that
the court then gave him credit for it. While that perception may
be valid, at least in part, Christofferson's conclusion is not
valid.
In ruling on the petition for post-conviction relief, the
District Court stated:
At the revocation hearing there may have been some
confusion because there was no record of whether the
first, non-suspended portion of the sentence had been
discharged because of a grant of good time credit.
The court went on to describe why the apparent confusion had no
effect :
However, it is clear from the order of February 18, 1994,
and it was the intention of the court that the suspended
portion of the sentence was revoked.
The revocation order clearly states:
[TI he suspended portion of the sentence is revoked and
that the Defendant shall serve the remaining portion of
his 10 year sentence at the Montana State Prison, with
credit given for time expired on such sentence.
Under Montana law, the District Court did not have power to
release Christofferson from parole.
When a prisoner on parole or conditional release has
performed the obligations of his release, the board shall
make a final order or discharge and issue a certificate
of discharge to the prisoner.
Section 46-23-216(2),MCA. It was up to the Board of Pardons, not
the District Court, to determine when the parole time had been
completed on the non-suspended portion of Christofferson's
sentence. Nothing in the record indicates that the Board of
Pardons determined that Christofferson had met the obligations of
his release on that portion of his sentence.
We further note that orders of the Board of Pardons are not
reviewable. Section 46-23-107, MCA. The decision of the Board of
Pardons is therefore not subject to consideration in this action
for post-conviction relief, at either the District Court level or
by this Court
The action taken by the District Court at the revocation
hearing, however, is supported by Montana case law. This Court has
held that a suspension of sentence may be revoked for acts of a
probationer after sentence is imposed but before the probationer
actually begins serving the suspended sentence. State v. Sullivan
(1982), 197 Mont. 395, 642 P.2d 1008. Therefore, we conclude that
the District Court had the power to revoke Christofferson's
suspended sentence even if he was still serving the non-suspended
part of his sentence.
We conclude that any misunderstanding at the revocation
hearing regarding the expiration of the non-suspended portion of
Christofferson's sentence was irrelevant, because the District
Court did not have the authority to make decisions regarding
Christofferson's parole. Because the District Court was within its
authority in revoking the suspended portion of the sentence, we
hold that it did not err in denying the petition for post-convic-
tion relief.
Affirmed.