State v. Waters

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-087_(09-28-99)_Opinion.htm

No. 98-087

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 229

296 Mont. 101

987 P.2d 1142

THE STATE OF MONTANA,

Plaintiff and Respondent,

v.

CHRISTOPHER M. WATERS,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Rosebud,

The Honorable Joe L. Hegel, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender Office, Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena,
Montana; Lee R. Kerr, Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: February 11, 1999

Decided: September 28, 1999

Filed:

__________________________________________

Clerk

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Justice William E. Hunt, Sr. delivered the Opinion of the Court.

1. ¶Christopher M. Waters (Waters) appeals from the Sentencing Order of the
Sixteenth Judicial District Court, Rosebud County. We reverse and remand.

Issues Presented

1. ¶There are two issues on appeal:
2. ¶(1.) Does the new judicial rule that oral pronouncement of sentence is the legally
effective judgment apply retroactively to Waters' appeal?

3. ¶(2.) Do the extra conditions imposed in the written Sentencing Order conflict with
the oral pronouncement of sentence?

Factual and Procedural Background

1. ¶Waters and his common law wife, April King, moved from Texas to Forsyth,
Montana, in 1997. The State of Montana (the State) charged Waters by Information,
on August 11, 1997, with the offense of Issuing a Bad Check as Part of a Common
Scheme, a felony, in violation of § 45-6-316, MCA. The Information alleged that,
during July of 1997, Waters had knowingly written eight bad checks to various
businesses in Rosebud County for a total of $1,848.02. The State similarly charged
co-defendant, April King, with the felony offense of issuing bad checks as part of a
common scheme.
2. ¶Waters pleaded not guilty to the charge at his initial appearance and arraignment on
August 18, 1997. Thereafter, on September 21, 1997, Waters and the State entered
into a written Acknowledgment and Waiver of Rights and Plea Agreement (Plea
Agreement). Pursuant to the Plea Agreement, Waters agreed to plead guilty in
exchange for the State agreeing to recommend a five-year suspended sentence.
Waters understood that the District Court was not bound by the terms of the

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agreement.
3. ¶The District Court accepted Waters' change of plea at a hearing on September 22,
1997. After the District Court accepted Waters' guilty plea as voluntary, it ordered
the preparation of a pre-sentence investigation (PSI). The PSI was completed and
filed with the court on October 8, 1997. The PSI recommended that Waters be
sentenced to the Montana Department of Corrections (DOC), but did not make a
specific recommendation for any length of incarceration. On October 20, 1997, an
Addendum to the PSI was filed.
4. ¶On October 22, 1997, a sentencing hearing was held. The pre-sentence investigator
testified that the Addendum to the PSI had been filed because he had subsequently
learned that Waters had two outstanding misdemeanor warrants and one outstanding
felony warrant for his arrest in Texas. Based on these outstanding warrants, which
included similar charges to those at issue here, the investigator recommended that
Waters be sentenced to the Montana State Prison for five years with two years
suspended. At the close of the hearing, the District Court informed Waters that it
was not going to follow the State's recommendation in the Plea Agreement, and
asked Waters if he wished to withdraw his guilty plea or continue with sentencing.
Waters agreed to continue with his plea of guilty and let the court sentence him.
5. ¶Thus, the District Court orally sentenced Waters to the DOC for five years with
two years suspended. The court orally imposed the following conditions on Waters'
sentence:

Well, what the Court is going to do, I'm going to commit [Waters] to the [DOC] for a
period of five years with two suspended under the conditions in the Plea Agreement and
the [PSI], including the restitution, and including joint and several liability for the other
checks that [April King] wrote.

Apparently, the District Court believed that a DOC commitment would possibly enable
Waters to get transferred to Texas authorities and clear up his outstanding warrants. The
court referred to "conditions" contained in the Plea Agreement and PSI, but did not
elaborate on those conditions. The court did not orally impose any other conditions.

1. ¶The District Court signed its written Sentencing Order on November 3, 1997,
which accurately reflected the five-year commitment with two years suspended, as
orally pronounced by the court. The Sentencing Order set forth ten conditions and
eight sub-conditions applicable to Waters' sentence as follows:

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1. The Defendant shall be placed under the supervision of the Montana Department of
Corrections and Human Services, Adult Parole and Probation Division, and be subject to
their standard rules and regulations as listed below.

a. Residence: The Defendant shall not change his place of residence without first obtaining
permission from his Probation/Parole Officer;

b. Travel: The Defendant shall not leave his assigned district without first obtaining
written permission from his Probation/Parole Officer;

c. Employment: The Defendant shall maintain employment or a program approved by his
Probation/Parole Officer, and must obtain permission from his Probation/Parole Officer
prior to any change of employment;

d. Reporting: The Defendant is required to personally report to his Probation/Parole
Officer as directed, and to submit written monthly reports on forms provided;

e. Weapons: The Defendant shall not own, possess or be in control of any firearms or
deadly weapons, including black powder, as defined by state or federal law;

f. Financial: The Defendant must obtain permission from his Probation/Parole officer
before financing a vehicle, purchasing property, or engaging in business;

g. Search: Upon reasonable cause, the Defendant shall, while on parole or probation,
submit to a search of his person, vehicle or residence by his Probation/Parole Officer, at
any time, without a warrant;

h. Laws & Conduct: The Defendant shall comply with all city, county, state, and federal
laws and ordinances and conduct himself as a good citizen. The Defendant shall report any
arrests or contacts with law enforcement to his Probation/Parole Officer within 72 hours.

2. The Defendant shall not use or possess alcoholic beverages nor enter any establishment
where alcohol is the chief item of sale;

3. The Defendant shall not use or possess illegal drugs;

4. The Defendant shall submit to testing of his blood, breath, and/or other bodily fluids to

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determine the presence of alcohol and/or illicit drugs upon the request of his supervising
officer;

5. The Defendant shall not open or have in his control or possess a checking account and
he shall not be a signatory on any other checking account;

6. The Defendant shall be subject to supervision fees in the amount of $10.00 per month,
to be paid at the rate of $30.00 per quarter, or $120.00 per year, under the direction of his
supervising officer;

7. The Defendant shall pay a surcharge in the amount of $20.00 to the Clerk of the District
Court for the felony conviction, pursuant to Section 46-18-236 M.C.A.;

8. The Defendant shall reimburse Rosebud County for the costs of his Court-appointed
counsel, in the amount of $250.00;

9. The Defendant shall reimburse the victims of his offense in the amount of $1,848.02,
payable through the office of Adult Probation and Parole, and that said restitution be paid
in full within six (6) months of the date of discharge of this sentence. Additionally, the
Defendant will be jointly and severally responsible for the $4,645.05 in restitution
established in Rosebud County Cause No. DC 97-39, with co-defendant, April Jean King,
a/k/a/ April Jean Waters.

10. The Defendant shall present himself to the proper authorities in the State of Texas, to
answer to the outstanding arrest warrants issued in that jurisdiction.

1. ¶All of the foregoing conditions, with the exception of two, were contained in either
the PSI, the Plea Agreement, or both documents. The two conditions in the written
judgment that were not contained in either one or both of the incorporated
documents were: (1) payment of supervision fees (condition 6); and (2) submission
to Texas authorities (condition 10). Waters did not file a contemporaneous objection
to the variations between the oral pronouncement of sentence and the written
judgment.
2. ¶On December 9, 1997, Waters filed a pro se notice of appeal. Subsequently, this
Court appointed the Montana Appellate Defender Office to represent Waters on
appeal. On May 1, 1998, Assistant Appellate Defender, Chad Wright, submitted a

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motion and brief to this Court requesting that he be allowed to withdraw from
Waters' appeal because there were no meritorious issues to be raised. On August 13,
1998, this Court denied the motion to withdraw, and ordered appellate counsel to
submit a brief on appeal addressing, at a minimum, the question of the validity of
the District Court's written Sentencing Order in light of our recent decision in State
v. Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9.

Discussion

1. ¶In Lane, we sought to resolve a conflict between this Court's past approach to the
finality of a sentence, which viewed the written judgment as the legally effective
sentence, and contrary authority suggesting that the oral pronouncement of sentence
controls for purposes of finality. After reviewing Montana statutes requiring the
defendant's presence at the oral pronouncement of sentence, the constitutional
protections affording a criminal defendant the right to be present and the
opportunity to respond to a trial court sentence, and federal case law indicating that
the oral pronouncement of sentence is the legal sentence, this Court announced the
rule "that the sentence orally pronounced from the bench in the presence of the
defendant is the legally effective sentence and valid, final judgment." Lane, ¶¶ 40-
41, overruling State v. Graveley (1996), 275 Mont. 519, 915 P.2d 184; State v.
Mason (1992), 253 Mont. 419, 833 P.2d 1058; State v. Wirtala (1988), 231 Mont.
264, 752 P.2d 177; State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170; and any
other Montana case law inconsistent with the new rule. "Accordingly, the written
judgment and commitment will serve as evidence of the sentence orally
pronounced." Lane, ¶ 40.
2. ¶Waters' challenge to the District Court's Sentencing Order involves a question of
law. We review questions of law de novo. State v. Romero (1996), 279 Mont. 58,
68, 926 P.2d 717, 723.
3. ¶(1.) Does the new judicial rule that oral pronouncement of sentence is the legally
effective judgment apply retroactively to Waters' appeal?
4. ¶In Lane, after announcing the new judicial rule that oral pronouncement of
sentence controls, this Court applied that rule to the case and held, without
discussing whether the new rule was retroactive in application, that the defendant's
oral sentence was the legal and valid sentence. See Lane, ¶¶ 48-49. The parties in
this case agree, and we concur, that the new rule announced in Lane has retroactive
application under recent pronouncements by this Court. However, there are some
inconsistencies in our case law which we shall seek to clear up in this case. We limit

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our discussion to retroactivity for purposes of direct review in criminal cases.
5. ¶In State v. Redding (1984), 208 Mont. 24, 675 P.2d 974, this Court imposed a new
rule of law, but applied that rule retrospectively. In so doing, we noted that "[t]he
major factor in limiting retroactive application of new principles of law is whether
such application would further or retard the purpose and effect of the rule."
Redding, 208 Mont. at 30, 675 P.2d at 977 (citing, in part, Linkletter v. Walker
(1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (setting forth a three-pronged
test for determining retroactive application of new constitutional rules of criminal
procedure), overruled by Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708,
93 L.Ed.2d 649).
6. ¶A few years later, in State, City of Bozeman v. Peterson (1987), 227 Mont. 418,
739 P.2d 958, we stated the general rule that "judicial decisions will apply
retroactively." Peterson, 227 Mont. at 420, 739 P.2d at 960. However, we cited a
civil decision for a number of factors to be considered by courts in determining
whether a new judicial rule should be applied retroactively or prospectively. See
Peterson, 227 Mont. at 420, 739 P.2d at 960 (citing LaRoque v. State (1978), 178
Mont. 315, 319, 583 P.2d 1059, 1061). In short, the Peterson Court did not
distinguish between retroactivity in civil and criminal cases and enumerated a
variety of factors to be considered in analyzing retroactivity in criminal cases.
7. ¶In 1995, this Court had occasion to rethink retroactivity analysis for criminal cases
in State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d 260, rev'd on other grounds,
Montana v. Egelhoff (1996), 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361. In
Egelhoff, we reformed Montana's retroactivity analysis in criminal cases to comport
with the decision of the United States Supreme Court in Griffith v. Kentucky
(1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649. The U.S. Supreme Court, in
Griffith, sought to clarify the standards for determining retroactivity for new
constitutional rules of criminal procedure, and concluded that "a new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in
which the new rule constitutes a 'clear break' with the past." Griffith, 479 U.S. at
328, 107 S.Ct. at 716, 93 L.Ed.2d at 661 (departing from the "clear break exception"
articulated in United States v. Johnson (1982), 457 U.S. 537, 102 S.Ct. 2579, 73 L.
Ed.2d 202).
8. ¶In Egelhoff, this Court, noting that the Griffith precedent was "binding" authority,
reasoned that it was necessary to reform Montana's retroactivity analysis for new
rules of criminal procedure because "[t]he United States Supreme Court ha[d]
refined its position since we decided Peterson . . . ." Egelhoff, 272 Mont. at 125, 900

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P.2d at 267. Thus, we adopted the above quoted Griffith rule as Montana law in
Egelhoff. Since " 'evenhanded justice' " dictates that a new judicial rule be " 'applied
retroactively to all who are similarly situated,' " we held that a decision announcing
a new rule of criminal procedure is applicable to all cases still subject to direct
review and not yet final as of the date of the decision. Egelhoff, 272 Mont. at 125-
26, 900 P.2d at 267 (quoting Teague v. Lane (1989), 489 U.S. 288, 300-01, 109 S.
Ct. 1060, 1070, 103 L.Ed.2d 334, 349). Thus, the Egelhoff Court, without expressly
overruling Peterson or other Montana precedent for determining retroactivity on
direct review of criminal cases, clearly shifted the analysis away from a multi-
factored inquiry and towards a bright-line rule. Today, we overrule Redding,
Peterson, and any other decision of this Court which imposes an inquiry, multi-
factored or otherwise, into whether a new judicial rule of criminal procedure is to be
applied retroactively or prospectively to a similarly situated criminal defendant
whose case is pending on direct review or not yet final.
9. ¶Retroactivity is a threshold matter which, as this Court has recently emphasized,
compels the evenhanded application of a "new rule for the conduct of criminal
prosecutions" to all similarly situated cases that are pending on direct review or not
yet final. State v. Nichols, 1999 MT 212, ¶ 10, ___ P.2d ___, ¶ 10, ___ St.Rep. ___,
¶ 10 (citing Egelhoff, 272 Mont. at 125-26, 900 P.2d at 266-67). Therefore, all
defendants whose cases are pending on direct review or not yet final are entitled to
the retroactive application of a new judicial rule of criminal procedure. See
Egelhoff, 272 Mont. at 125, 900 P.2d at 267 (quoting Griffith, 479 U.S. at 328, 107
S.Ct. at 716, 93 L.Ed.2d at 661); accord State v. Steinmetz, 1998 MT 114, ¶ 10, 288
Mont. 527, ¶ 10, 961 P.2d 95, ¶ 10 (giving retroactive effect to a decision which was
handed down after the appeal in question "was submitted on briefs" but before a
final appellate decision was rendered); State v. Thibert, 1998 MT 207, ¶ 13, 290
Mont. 408, ¶ 13, 965 P.2d 251, ¶ 13 (giving retroactive effect to two decisions
handed down after the trial court had ruled but prior to a final appellate decision);
see also United States v. Keys (9th Cir. 1998), 133 F.3d 1282, 1286 (relying on
Griffith to hold that the defendant was entitled to retroactive application of a new
constitutional rule "because it was announced after his trial and before his case had
become final"). The Egelhoff standard applies irrespective of whether the new
judicial rule constitutes a " 'clear break' " from existing precedent, see Griffith, 479
U.S. at 324-28, 107 S.Ct. at 714-16, 93 L.Ed.2d at 659-61, and without regard to
whether the new judicial rule was "available to the District Court at the time it
ruled . . . ." Steinmetz, ¶ 10.
10. ¶The Lane decision, by holding that the oral pronouncement of sentence controls

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over the written sentence for purposes of finality, plainly imposed a new judicial
rule of criminal procedure. Indeed, Lane expressly overruled inconsistent precedent
in announcing the new rule. Thus, we hold that Lane established a new judicial rule,
for purposes of direct review, regardless of the fact that Lane was a clear break from
existing precedent. Furthermore, we hold that Lane applies retroactively to Waters'
appeal, even though the new rule was not available to the District Court at the time
of sentencing.

1. ¶(2.) Do the extra conditions imposed in the written Sentencing Order conflict with
the oral pronouncement of sentence?

1. ¶Before reaching the merits of Waters' sentencing claim, we must address the
threshold, procedural question of whether Waters' failure to object to the
inconsistency between the District Court's oral pronouncement of sentence and its
written Sentencing Order constitutes a waiver of that claim on appeal. This Court
generally does not review a sentencing issue which was not preserved for appeal in
the court below. Sections 46-20-104(2) and 46-20-701(2), MCA; see also State v.
Arlington (1994), 265 Mont. 127, 151-52, 875 P.2d 307, 321-22 (citing §§ 46-20-
104 and 46-20-701, MCA). However, we have noted that an "exception to this
general rule" arises where the defendant alleges that the "sentence is illegal or
exceeds statutory mandates, even if no objection is made at the time of the
sentencing." State v. Nelson (1995), 274 Mont. 11, 18, 906 P.2d 663, 667 (citing
State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025; State v. Lenihan (1979),
184 Mont. 338, 602 P.2d 997).
2. ¶As the State concedes, this case falls within the foregoing exception. Waters argues
that certain portions of the written judgment conflict with the oral pronouncement of
sentence and, thus, that the conflicting portions of the written sentence are "invalid."
Waters alleges in essence that the extra sentencing conditions contained in the
written judgment are illegal under the authority of Lane. For that reason, his claim
comes within the exception discussed in Nelson. We hold that Waters' sentencing
claim is not procedurally barred by §§ 46-20-104 and 46-20-701, MCA, and is
therefore reviewable by this Court.
3. ¶The State acknowledges that the oral pronouncement of Waters' sentence is the
legally valid final judgment pursuant to the new rule of Lane, which is applicable on
direct review here. Under Lane, the written sentence is "mere evidence" of the oral
sentence. See Lane, ¶¶ 35-40. Thus, "in the event of a conflict between the oral

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pronouncement of sentence and the written judgment and commitment, the oral
pronouncement controls." Lane, ¶ 48. The "conflict" at issue in Lane was direct: the
sentence, as orally pronounced, had ordered that the defendant would not be paroled
until he had completed the prison's sex offender treatment program; however, the
district court, in its written judgment, only recommended that the defendant not be
eligible for parole until he completed the sex offender program. See Lane, ¶¶ 7, 9.
Hence, we held that the district court's entry of a nunc pro tunc order to correct the
conflict, arising from a "clerical error," was within the district court's authority
pursuant to § 46-18-117, MCA. Lane, ¶ 49.
4. ¶The alleged "conflict" in this case is the inclusion of conditions in the District
Court's written judgment that were not expressly enumerated at the oral
pronouncement of sentence. While we did not distinguish between the types of
conflict which would trigger application of the Lane rule, we agree with the State
that the holding of Lane "logically extends to omitted provisions as well as to
conflicting provisions," since that holding was premised upon the defendant's
constitutional and statutory rights to be present at the time of sentencing. See Lane,
¶ 40 (adopting the new rule as "more consistent with Montana's constitutional and
statutory provisions that allow for a defendant to be present at sentencing and be
afforded an opportunity to respond . . . "). Therefore, " 'a defendant is sentenced in
absentia when the judgment and commitment order is allowed to control when there
is a conflict.' " Lane, ¶ 38 (quoting United States v. Villano (10th Cir. 1987), 816
F.2d 1448, 1452-53).
5. ¶As mentioned previously, the District Court orally imposed only the following
conditions on Waters' sentence: (1) a term of five years with two years suspended;
(2) restitution; and (3) joint and several liability for his co-defendant's issuance of
bad checks. However, there are numerous sentencing conditions in the District
Court's Sentencing Order borrowed from either or both the PSI and Plea Agreement
which were omitted from the oral pronouncement of sentence, as well as two extra
conditions in the written Sentencing Order which were neither contained in the PSI
or Plea Agreement nor imposed orally by the court. Regarding the conditions of
parole contained in either or both the PSI and Plea Agreement, the State suggests
that since the District Court's oral pronouncement of sentence expressly
"incorporated by reference" the Plea Agreement and PSI and since those documents
contained the parole conditions imposed by the court in its written judgment, this
Court should find no "conflict" under Lane.
6. ¶We are troubled by the implications of the State's contention that "[w]here, as here,
the document is part of the record and is known to the defendant, there is no

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ambiguity in the oral pronouncement of the sentence, and the defendant has not
been sentenced in absentia." As Waters asserts, the State's position would
"effectively gut" the holding of Lane. The State would have this Court hold that a
trial court is not required under Lane to "read aloud each parole or probation
condition" at the oral pronouncement of sentence so long as the court expressly
referred to an "incorporated document" containing the condition or conditions.
Under this interpretation of Lane, a district court could simply pronounce that a
defendant would be sentenced according to conditions contained in an outside
document without putting the defendant on notice as to which particular sentencing
conditions were being imposed, thereby denying the defendant his or her
constitutional and statutory rights to be present at the time of sentencing and to
respond to the court's sentence. This would clearly result in a defendant being
sentenced in absentia.
7. ¶As we noted in Lane, the oral pronouncement of sentence controls "even if
contrary to the trial judge's intent." Lane, ¶ 36 (citing United States v. Munoz-Dela
Rosa (9th Cir. 1974), 495 F.2d 253, 256). Therefore, " '[i]t is incumbent upon a
sentencing judge to choose his [or her] words carefully so that the defendant is
aware of his [or her] sentence when he [or she] leaves the courtroom.' " Lane, ¶ 38
(quoting Villano, 816 F.2d at 1452-53) (emphasis added).
8. ¶We cannot agree, however, with Waters' contention, pursuant to Lane, that the
District Court's oral pronouncement of a term of years, restitution, and joint and
several liability are the only sentencing conditions which can be lawfully imposed
upon him. According to Waters, he should be excused from his two-year suspended
sentence since the court failed to orally enumerate his specific parole conditions,
and he should also be excused from having to pay restitution within six months of
the discharge of sentence since the court failed to orally mention any specific
conditions for the payment of restitution. Being mindful of the need to apply Lane in
a principled manner and yet reach a reasonable result in this appeal, we determine
that the District Court's oral pronouncement of sentence was ambiguous. Under
Lane, a written judgment may "help clarify an ambiguous oral sentence by
providing evidence of what was stated at sentencing." Lane, ¶ 37 (citing Villano,
816 F.2d at 1452). Consequently, we hold that the written enumeration of the
specific parole conditions and the amount and terms of paying restitution in the
District Court's Sentencing Order were merely clarifications of ambiguous
sentencing conditions imposed orally.
9. ¶Regarding the ambiguous conditions, the District Court orally pronounced that
Waters would receive a suspended sentence and be liable for restitution, but failed

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to elaborate on the specific parole conditions to which he would be subject or the
terms and conditions for paying restitution. Nevertheless, we note that during the
course of the sentencing hearing, Waters acknowledged that he had "read and
discussed" the PSI and the Addendum to the PSI, and further testified that he would
be "happy to follow" any of the conditions of probation or parole set forth in the
Plea Agreement. At the oral pronouncement of sentence, the District Court clearly
put Waters on notice that he was receiving a suspended sentence subject to the
parole conditions listed in the PSI and Plea Agreement and that he was liable for
restitution under the sentence. There is no indication that, when the District Court
orally pronounced sentence, Waters was denied an opportunity to respond to the
sentence at that time and ask for clarification. While it would be far preferable,
under the authority of Lane, for a sentencing judge to elaborate the specific
conditions and sub-conditions at the oral pronouncement of sentence, where, as
here, a defendant was clearly put on notice of sentencing conditions and given a
sufficient opportunity to respond to those conditions and ask for clarification, that
defendant should not be heard to complain.
10. ¶As noted before, there were two extra conditions in the District Court's Sentencing
Order which were not contained in either or both the PSI and Plea Agreement: (1)
payment of supervision fees; and (2) submission to Texas authorities. Regarding the
payment of supervision fees, the State argues that even though that condition was
not included in the oral pronouncement of sentence, the collection of probation and
parole supervision fees by the clerk of court is statutorily mandated and would be
imposed on a defendant regardless of whether a court ordered that condition. We
cannot agree with the State's absolutist argument. The statute in question provides
that a district court "may reduce or waive the fee or suspend the monthly payment of
the fee if it determines that the payment would cause the probationer or parolee a
significant financial hardship." Section 46-23-1031(1)(b), MCA. There is no
evidence that Waters was put on notice by the District Court's oral pronouncement
of sentence that he would be required to pay supervision fees, nor offered an
opportunity to respond to that condition and request that the court reduce or waive
those fees on account of financial hardship. Thus, that condition must be stricken
from the written sentence unless the District Court determines on remand that
payment of supervision fees would not impose a "significant financial hardship" on
Waters.
11. ¶Regarding submission to Texas authorities, that sentencing condition was
contained in neither the PSI nor Plea Agreement and was never mentioned by the
District Court at the oral pronouncement of sentence. We hold that this condition

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falls squarely within the rule of "conflict" announced in Lane and, therefore, that
Waters was effectively sentenced in absentia as to that condition. Hence, the oral
pronouncement of sentence controls and that condition must be stricken from
Waters' written sentence.
12. ¶We remand this case for entry of a nunc pro tunc order amending the written
sentence pursuant to § 46-18-117, MCA, to conform with this opinion.
13. ¶Reversed and remanded.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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