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IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-775
2001 MT 259
______________
OPINION AND ORDER
JULIAN LOUIS GONZALES,
Petitioner,
v.
MIKE MAHONEY, Warden of Montana
State Prison; JUDICIAL DISTRICT COURT;
and THE STATE OF MONTANA,
Respondents.
______________
¶1 Julian Louis Gonzales has filed a petition for writ of habeas corpus asserting that his
detention on a probation revocation warrant violates double jeopardy protections and § 46-
23-1012, MCA (2001). On November 2, 2001, the Court granted Gonzales' motion to
proceed in forma pauperis, and ordered the Respondents to file a response, which has been
filed. Respondents' supplemental response to the petition has also been filed.
¶2 According to his petition, Gonzales received five suspended sentences for offenses he
committed between 1996 and 1998. In 2000, Gonzales was arrested for probation
violations pursuant to a bench warrant. He was not afforded a hearing within 36 hours of
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his arrest, as required by § 46-23-1012(4), MCA (1999). Gonzales' probation was then
revoked, and he was sentenced to various terms of incarceration at the Montana State
Prison.
¶3 Respondents acknowledge that Gonzales' revocation in 2000 was void pursuant to State
v. Goebel, 2001 MT 73, 305 Mont. 53, 31 P.3d 335, and State v. Giddings, 2001 MT 76,
305 Mont. 74, 29 P.3d 475. Following this Court's order denying rehearing in State v.
Goebel and State v. Giddings, 2001 MT 155, 306 Mont. 83, 31 P.3d 340, probation
revocation proceedings in Gonzales' five cases were reinitiated. Three bench warrants
were served upon Gonzales on October 11, 2001, and two more on October 22, 2001.
Gonzales was transferred from Montana State Prison to the Great Falls Regional Prison on
November 27, 2001, in anticipation of further revocation proceedings, and a hearing on all
five causes has been set for December 13, 2001.
¶4 Gonzales asserts that he has not been arraigned, had a hearing or otherwise made any
court appearance since he was served with the new warrant. He asserts that the State and
District Court intend to conduct another revocation hearing on the same allegations which
were the basis of the original revocation proceeding, which he contends violates the
double jeopardy provisions of the Montana Constitution. Further, he contends that the
District Court is without jurisdiction to conduct the revocation proceeding because the
provisions of § 46-23-1012, MCA (2001), have not been complied with.
¶5 In response to Gonzales' double jeopardy claim, Respondents offer that "[c]ontrary to
Petitioner's argument, this Court in Giddings specifically authorized the State to proceed
with a new revocation proceeding, and to hold inmates at a state facility pursuant to a
bench warrant until the Petitioner was transported for further proceeding," and that,
therefore, Petitioner's incarceration is legal.
¶6 In State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394, a petition to revoke Oppelt's
probationary sentence was first dismissed, then refiled based upon the same factual
allegations. Oppelt challenged the second petition, contending it subjected him to double
jeopardy under both the United States and Montana Constitutions. First, the Court
discussed the applicability of double jeopardy provisions to sentence revocation
proceedings generally:
Defendant contends that revocation of the suspended sentence enhances his
punishment and thus subjects him to double jeopardy. We disagree. Even though a
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defendant must live with the conditions of probation throughout the period of
suspension and even though he must serve the entire sentence if the suspension is
revoked, there is no double jeopardy. . . .
...
"[R]evocation of suspension of a sentence does not constitute a second punishment
for the same offense. A defendant under a suspended sentence lives with the
knowledge that 'a fixed sentence for a definite term hangs over him.' [Citations
omitted.] The defendant's subsequent conduct, not his original offense, forms the
basis of revocation and reinstates the original sentence. Petitioner is not being
punished for the same offense." State v. Ratzlaff, 564 P.2d at 1316. See also Paul v.
State (Alaska 1977), 560 P.2d 754; 22 C.J.S. Criminal Law §§ 239, p. 623.
Oppelt, 184 Mont. at 51-53, 601 P.2d at 396-97. The Court then addressed the double
jeopardy implications of the second revocation petition filed against Oppelt:
Defendant next asserts, and we will assume, that both proceedings to revoke the
suspended sentence were based on the May, 1977, convictions. His argument that
this subjects him to double jeopardy fails because it ignores the basic nature of
proceedings to revoke a suspended sentence.
...
"Because a revocation proceeding is not a criminal adjudication, does not require
proof of a criminal offense, does not impose punishment for any new offense, and is
an act in the performance of the duty of judicial supervision of probationary
liberty . . . the Double Jeopardy Clause . . . is [not] applicable." State v. Eckley, 579
P.2d at 293.
In this case, the first petition was dismissed without any determination on the merits.
Under these circumstances and in recognition of the essence of revocation
proceedings, the prohibitions against double jeopardy do not preclude the state from
filing a second petition alleging the same facts. See State v. Rios (1977), 114 Ariz.
505, 562 P.2d 385. We recognize there may be a limit on how many times the same
operative facts may be used as a basis for a petition to revoke. However, we do not
reach the issue of the effect of a dismissal on the merits on a second petition based
on the same facts. [Citations omitted.]
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Oppelt, 184 Mont. at 53-54, 601 P.2d at 397-98.
¶7 The question left open by the Oppelt Court-whether the facts alleged in a revocation
petition which is dismissed on its merits can be the basis of a second petition to revoke-is
again not at issue here. The first revocation petition filed against Gonzales was voided
under our holding in Giddings without a determination regarding the merits of that
petition. Thus, pursuant to Oppelt, the State's second revocation petition against Gonzales
alleging the same facts does not violate the prohibition against double jeopardy under the
Montana Constitution.
¶8 In the order denying rehearing in Goebel and Giddings, we held that the State must
"proceed anew as if no District Court proceedings had occurred." Goebel and Giddings,
¶ 30. Moreover, we held that to proceed anew, the State and District Court must follow the
procedure outlined in § 46-23-1012, MCA (2001). Gonzales alleges that this statutory
procedure has not been followed. He asserts that he has not appeared before a magistrate
to set bail, pursuant to § 46-23-1012(3)(c), MCA, nor had an intervention hearing pursuant
to § 46-23-1012(3)(b), MCA, or a revocation hearing under § 46-23-1012(5), MCA, which
references the procedure set forth in § 46-18-203, MCA. Thus, Gonzales contends his
incarceration is unlawful.
¶9 Respondents offer that Gonzales' reading of the statutes at issue is incorrect. They
explain that § 46-23-1012, MCA, authorizes two distinct methods of commencing
revocation proceedings, including a formal proceeding outlined in § 46-23-1012(1), MCA,
and § 46-18-203, MCA, and an abbreviated proceeding initiated by detention by the
probation and parole office, known as the probation violator prison diversion program, and
set forth in § 46-23-1012(3), (4) and (5), MCA. A diversion revocation proceeding
initiated by a probation and parole officer under these provisions may be converted to a
formal revocation proceeding pursuant to §46-23-1012(5), MCA.
¶10 Respondents argue that the time requirements and procedures which Gonzales alleges
were violated relate to the diversion revocation proceeding, not to a formal proceeding.
Respondents explain that, pursuant to § 46-18-203(3), MCA, bail was set for Gonzales in
the new bench warrants issued by the District Court, and the time requirement that applies
to the hearing under a formal proceeding is set forth in § 46-18-203(4), MCA, requiring an
offender to be brought before the court "without unnecessary delay." Respondents argue
that the delay incurred in returning Gonzales to Cascade County and scheduling his
appearance in the District Court was necessary in light of the 65 Cascade County
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offenders who are being processed for new revocation appearances, and the 75 felony jury
trials set per month in that county.
¶11 Gonzales has not asserted that the delay in his appearance before the District Court
since service of the new bench warrants violates the "unnecessary delay" requirement of
§ 46-18-203, MCA, and therefore, we do not reach that issue here. However, Respondents
correctly argue that the statute contemplates dual revocation proceedings, and that a
formal proceeding initiated pursuant to § 46-23-1012(1), MCA, and § 46-18-203, MCA, is
not subject to the time and procedural requirements set forth in § 46-23-1012(3), (4), and
(5), MCA. Consequently, Gonzales' claims must fail. Therefore,
IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk is directed to mail copies hereof to petitioner personally and to counsel of
record for respondent.
DATED this 12th day of December, 2001.
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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