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No. 00-263
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 170
STATE OF MONTANA,
Plaintiff and Respondent,
v.
AUDREY A. WALKER,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and for the County of Big Horn,
The Honorable Blair Jones, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James L. Vogel, Attorney at Law, Hardin, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana
Christine A. Cooke, Big Horn County Attorney; Curtis Bevolden,
Deputy County Attorney, Hardin, Montana
Submitted on Briefs: August 17, 2000
Decided: August 23, 2001
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Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray, delivered the Opinion of the Court.
¶1 Audrey Walker (Walker) appeals from an order entered by the Twenty-Second Judicial
District Court, Big Horn County, revoking her probationary sentence. We affirm.
¶2 The issue on appeal is whether the District Court erred in rejecting Walker's
constitutional challenge to § 61-8-731, MCA, on double jeopardy grounds when it revoked
her probation and committed her to the Department of Corrections for the remainder of the
original probationary period.
BACKGROUND
¶3 In June of 1998, Walker was sentenced to six months in prison, to be followed by two
years of supervised probation, for a felony driving under the influence of alcohol (DUI)
conviction; in addition, she was fined $1,000. Walker was released from confinement in
October of 1998, at which time her two-year probationary sentence began.
¶4 In December of 1999, based on a Report of Violation of conditions of probation, the
Big Horn County Attorney filed a Petition for Revocation. Walker appeared before the
District Court and admitted violating her probation by failing to comply with numerous
laws, failing to report these violations to her probation officer and consuming alcohol.
¶5 During the revocation proceedings, Walker argued she could not be incarcerated for
probation violations, since she had served the entirety of her six-month prison term. Under
her theory, any additional commitment to the Department of Corrections (DOC) would
constitute multiple punishments for the same offense, thereby violating constitutional
prohibitions against double jeopardy.
¶6 After briefing by the parties, the District Court determined incarceration imposed as a
consequence of Walker's probation violations would not constitute double jeopardy,
revoked her probation and committed her to the DOC for the time remaining on her
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original two-year probation. Walker appeals.
STANDARDS OF REVIEW
¶7 We review a district court's conclusions of law to determine whether they are correct.
School Trust v. State, ex rel. Bd. Com'rs, 1999 MT 263, ¶ 11, 296 Mont. 402, ¶ 11, 989
P.2d 800, ¶ 11 (citation omitted). Under the Montana Constitution, courts are vested with
the exclusive power to construe and interpret acts of the Legislature, as well as provisions
of the Constitution; inherent in that power is the responsibility to determine whether a law
conforms to the Constitution. State v. Guillaume, 1999 MT 29, ¶ 14, 293 Mont. 224, ¶ 14,
975 P.2d 312, ¶ 14 (citations omitted). Statutes are presumed to be constitutional and a
party challenging the constitutionality of a statute bears the burden of proving it
unconstitutional beyond a reasonable doubt. Any doubt is to be resolved in favor of the
statute. School Trust, ¶ 11 (citations omitted).
DISCUSSION
¶17 Did the District Court err in rejecting Walker's constitutional challenge to § 61-8-731,
MCA, on double jeopardy grounds when it revoked her probation and committed her to
the DOC for the remainder of the original probationary period?
¶18 Walker was sentenced on her felony DUI conviction pursuant to § 61-8-731, MCA,
which provides in pertinent part:
(1) On the fourth or subsequent conviction [of DUI] the person is guilty of a felony and
shall be punished by:
(a) imprisonment for a term of not less than 6 months or more than 13 months, for
which the imposition or execution of the first 6 months may not be suspended, and
during which the person is not eligible for parole;
(b) probation for a term of not less than 1 year or more than 4 years; and (c) a fine of
not less than $1,000 or more than $10,000.
....
(3) The sentencing judge may impose upon the defendant any reasonable restrictions
or conditions during the period of probation . . . .
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....
(5) If a violation of the restrictions or conditions of the probation is established, the
court may continue the period of probation or may require the defendant to serve the
remainder of the probation sentence in [a state prison or other correctional facility].
As set forth above, the sentencing court sentenced Walker under all three subsections of §
61-8-731(1), MCA, by imprisoning her for the minimum term of 6 months, placing her on
probation under specified conditions thereafter for 2 years, and fining her $1,000. Upon a
later determination that Walker violated the terms of her probation, the District Court
required her to serve the remainder of her probationary sentence under a commitment to
the DOC pursuant to § 61-8-731(5), MCA.
¶10 Walker concedes that § 61-8-731, MCA, authorized her original sentence, the
revocation of her probation and her commitment to the DOC to serve the remaining
probation time. She contends, however, that the statute is unconstitutional as applied to
her. We address her arguments in turn.
¶11 Walker argues first, although not with particular clarity, that there is a distinction
between the revocation of a suspended sentence and the revocation of a probationary
sentence. While acknowledging our cases rejecting double jeopardy arguments in relation
to the revocation of suspended sentences, she maintains those cases--which interpret § 46-
18-203, MCA, providing for the revocation of suspended or deferred sentences--"do not
support the action taken here."
¶12 In State v. Lange (1989), 237 Mont. 486, 775 P.2d 213, we considered whether the
revocation of a suspended sentence pursuant to § 46-18-203, MCA, for violations of
probationary conditions implicated constitutional double jeopardy concerns. In holding
that the revocation of a suspended sentence does not violate rights against double
jeopardy, we determined that the subsequent conduct, not the original offense, forms the
basis for revocation and the sentencing court "retains jurisdiction over defendant during
the period of probation." Lange, 237 Mont. at 489, 775 P.2d at 215 (citations omitted).
These principles appear equally applicable in the present case notwithstanding that we
addressed § 46-18-203, MCA, there and Walker challenges § 61-8-731, MCA, here. Like
§ 46-18-203, MCA, § 61-8-731(5), MCA, provides by its terms for incarceration upon
violation of conditions of probation. Furthermore, the revocation in both situations is not
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new punishment for the criminal offense, it constitutes the consequence of violating
probationary conditions. Thus, while Walker argues for a distinction for double jeopardy
purposes between revocation based on a suspended or deferred sentence under § 46-18-
203, MCA, and revocation based on a legal probationary sentence under § 61-8-731,
MCA, she fails to explain how such a distinction might manifest itself or provide any
authority for such a distinction. She appears to suggest that a court must stand idly--and
futilely--by while a probationer violates conditions of probation. No cited authority
compels such a result.
¶13 Walker next argues that the additional period of incarceration resulting from her
probation violations constitutes double jeopardy under our decision in Guillaume, because
she received two sentences for the same offense. We disagree.
¶14 There, the defendant was sentenced to 10 years in prison for committing the offense of
felony assault, a statutory element of which is the use of a weapon. His sentence was
enhanced by 5 years pursuant to a statute providing for such an additional sentence upon a
conviction of an offense in which the person knowingly uses a dangerous weapon.
Guillaume, ¶ 9. The defendant argued on appeal that the weapon enhancement statute was
unconstitutional as applied to him because he received two sentences for the use of a
weapon, thereby violating the double jeopardy prohibition in Article II, Section 25 of the
Montana Constitution by imposing multiple sentences for the same act of using a weapon.
See Guillaume, ¶¶ 10, 12. We agreed, determining he was subjected to double punishment
for use of a weapon. Guillaume, ¶¶ 16, 18.
¶15 Walker contends that, like the defendant in Guillaume, her right against double
jeopardy has been violated in the present case. She argues that the only difference between
her situation and that in Guillaume is that, there, the "double sentence" was imposed at the
time of the original sentence and, here, the alleged "double sentence" was imposed at the
time her probationary sentence was revoked nearly two years later. Walker fails to
recognize, however, that the very basis for our conclusion in Guillaume was the double
sentence that defendant received for the same act, the use of a weapon. It was that double
punishment that violated the constitutional prohibition against double jeopardy. The
revocation of Walker's probationary sentence for violations of conditions of probation is
not a second punishment for her original DUI offense; the revocation is the consequence
of her later acts of violating probation conditions.
¶16 Walker bears the burden of proving § 61-8-731, MCA, unconstitutional beyond a
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reasonable doubt as applied to her. See School Trust, ¶ 11 (citations omitted). She has not
met her burden. We hold, therefore, that the District Court did not err in rejecting Walker's
constitutional challenge to § 61-8-731, MCA, on double jeopardy grounds when it revoked
her probation and committed her to the DOC for the remainder of the original
probationary period.
¶17 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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