NO. 95-035
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff & Respondent,
v
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Ted L. Mimer, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Rem, Montana Defender Project, Missoula,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Micheal S.
Wellenstein, Assistant Attorney General, Helena,
Montana; Edward Beaudette, Anaconda-Deer Lodge
County Attorney, Anaconda, Montana
Submitted on Briefs: November 16, 1995
Decided: January 30, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
The Third Judicial District Court, Deer Lodge County, found
Appellant Thomas G. Rice (Rice) guilty of burglary and domestic
abuse and imposed a three-year sentence with all but 90 days
deferred, subject to certain conditions. Rice failed to abide by
those conditions, and the court consequently revoked the deferred
sentence and sentenced him to ten years in prison, with nine years
suspended. Rice appeals the validity of his burglary conviction.
Appeal dismissed.
The dispositive issue on appeal is: When does a criminal
defendant's time of appeal begin to run if the defendant receives
a deferred sentence?
On August 1, 1993, Rice assaulted the woman with whom he
lived; she then fled to her mother's house and reported the
incident to the police. After being examined and treated at the
hospital, the victim returned to her mother's house. Sometime
later, Rice entered the mother's house and assaulted the victim
again. He was arrested shortly thereafter.
Following a December 1993 bench trial, the District Court
found Rice guilty of burglary and domestic abuse. On June 8, 1994,
the District Court sentenced Rice to three years with all. but 90
days deferred, subject to certain conditions.
On October 12, 1994, the State moved to revoke Rice's deferred
sentence for failure to abide by the conditions set out by the
District Court. On November 23, 1994, the District Court revoked
the deferred sentence and sentenced Rice to ten years in prison,
with nine years suspended.
Rice appeals the validity of his burglary conviction,
contending that the District Court abused its discretion by finding
him guilty of that charge. The State contends this Court lacks
jurisdiction to hear the appeal because the time in which Rice may
appeal has expired. It therefore contends that Rice no longer has
the right to appeal the underlying burglary conviction, and that
his right to appeal is limited to the revocation of his deferred
sentence.
Rice contends that the time in which he may file an appeal did
not begin to run until sentence was actually imposed, which he
argues occurred after revocation. If Rice is correct, his appeal
is timely. If the State is correct, Rice's appeal is not timely
and this Court does not have jurisdiction to consider it. We hold
that Rice's appeal is not timely, and therefore this Court has no
jurisdiction to hear his appeal.
Rule 5(b), M.R.App.P., gives a defendant 60 days in which to
appeal a criminal judgment. This Court is without jurisdiction to
hear an appeal filed more than 60 days after judgment. State v.
Haskins (1992), 255 Mont. 202, 841 P.2d 542. Further, "an appeal
may be taken by the defendant only from a final judgment of
conviction and orders after judgment which affect the substantial
rights of the defendant." Section 46-20-104(l), MCA. Therefore,
the 60 days in which a defendant may appeal do not begin to run
until such time as a final judgment is entered in the case.
3
A judgment is "an adjudication by a court that the defendant
is guilty or not guilty, and if the adjudication is that the
defendant is guilty, it includes the sentence pronounced by the
court." Section 46-l-202(10), MCA. Section 46-18-201, MCA, allows
a court to "defer imposition of sentence . . . Land1 impose upon
the defendant any reasonable restrictions or conditions during the
period of the deferred imposition." Section 46-18-201(l) (a), MCA.
In light of the above statutes and definitions, Rice asserts
that the time in which he may properly appeal the burglary
conviction has not expired. He notes that he may only appeal a
final conviction, and that a conviction is not final until sentence
is imposed. He contends that a deferred sentence is not "imposedV1
unless and until the deferral is revoked. Therefore, Rice argues,
the 60 days in which he may appeal his conviction began at the time
the deferral was revoked and sentence actually imposed. Since he
appealed within this time, he contends that this Court retains
jurisdiction.
Rice urges this Court to interpret "sentence" as synonymous
with "punishment," and we acknowledge that such an interpretation
formerly was correct. Before 1990, the Montana Code Annotated
defined "sentence" as "the punishment imposed on the defendant by
the court." Section 46-l-201(9), MCA (1989). This is consistent
with Montana case law before 1991, which accepted "sentence" as
being the same as "punishment." See Newman v. Estelle (1971), 156
Mont. 502, 484 P.2d 276; and Petition of Williams (1965), 145 Mont.
45, 399 P.2d 732.
However, 5 46-l-202(24), MCA, enacted in 1991, defines
"sentence" as "the judicial disposition of a criminal proceeding
upon a plea, verdict, or finding of guilty." Under this new
definition, any judicial disposition of a criminal case resulting
from a plea, verdict or finding of guilt is itself a sentence,
regardless of whether actual punishment is deferred or immediately
imposed.
Thus, when the District Court entered its order deferring
imposition of sentence under § 46-18-201(l) (a), MCA, pursuant to
Rice's guilty plea, it sentenced him by judicially disposing of the
criminal proceeding at issue. While Rice would have us equate a
criminal "sentence" with imprisonment or probation upon suspension
of sentence, the plain language of § 46-l-202(24), MCA, neither
mandates nor suggests such a narrow interpretation. Sentencing can
and does encompass imprisonment or a suspended sentence, but the
term is no longer strictly premised on the element of actual
punishment.
This does not mean, however, that we overrule Williams and
Estelle. While "sentence" may be interpreted broadly pursuant to
5 46-l-202(24), MCA, in deferment cases such as the one at bar, it
continues to retain a narrower meaning, premised on the "punishment
factor," in double jeopardy cases. On this basis, Williams and
Estelle are distinguishable.
Williams and Estelle both address the question of whether a
deferred sentence is a "final sentence" for purposes of invoking
the constitutional prohibition against double jeopardy. In both
5
cases, this Court held that a deferred sentence is not final for
purposes of double jeopardy because no punishment was imposed
unless and until the deferred sentence was revoked. Williams, 399
P.2d at 737; Estelle, 484 P.2d at 278.
Accordingly, these two cases stand for the principle that a
deferred imposition of sentence is not imprisonment or punishment
in the constitutional sense of jeopardy, even if the deferred
sentence includes probation conditions which require the service of
some jail time. This is an entirely different issue than the
question of whether a deferred sentence is final for purposes of
appeal. Therefore, our narrow holding in this case should not be
construed to overrule Williams, Estelle, or their progeny.
A defendant has sixty days in which to appeal a final
judgment. Rule 5(b), M.R.App.P. A final judgment includes a
sentence. Statutorily, a sentence is any judicial disposition of
a criminal proceeding by plea, verdict, or finding of guilt.
Section 46-l-202(24), MCA. Therefore, a judgment which includes a
deferred sentence is final for purposes of appeal.
Rice had sixty days from the date judgment was entered in
which to appeal his burglary conviction. Because he failed to file
an appeal within the time allotted, this Court has no jurisdiction
to hear his appeal.
The appeal is dismissed.
We Concur:
Justices