No. 01-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 38
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID WAYNE KIME,
Defendant and Appellant.
APPEAL. FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mike Salvagni, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jennifer Went Bordy, The Angel Law Firm, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney; Gary Balaz, Deputy
County Attorney, Bozeman, Montana
Submitted on Briefs: December 13,200l
Decided: March 5, 2002
Filed:
ChiefJusticc Karla M. Gray delivered the Opinion of the Court
ill David Wayne Kime (Kime) appealsfrom the judgment entered by the Eighteenth
Judicial District Court, Gallatin County, on his convictions and sentencesfor felony theft,
driving under the influence of alcohol (DUI) and driving while his license was suspended.
We affirm.
12 The issue on appeal is whether the District Court abusedits discretion in sentencing
Kime by failing to give him sufficient credit for preconviction time served in jail.
BACKGROUND
lI3 On November 26, 2000, Kime was arrested and placed in the Gallatin County
Detention Center (Jail) on charges of felony theft, DUI and driving while his license was
suspended. On the following day, he appearedbefore the Gallatin County Justice Court,
which set bail in the amount of $25,000. Kime did not post bail and remained incarcerated
in the Jail.
ll4 At the time of his arrest, Kime was participating in a supervisedreleaseprogram as
part of a prior sentencefor a felony assaultconviction. The prior sentencecommitted Kime
to the custody of the Montana Department of Corrections (DOC) for a period of ten years,
with five years suspended. On December 5, 2000, the DOC removed Kime from the
supervisedreleaseprogram and he was transferred from the Jail to the Montana StatePrison
(MSP) to serve the remainder of his felony assaultsentence.
2
115 On Dcccmber 12, 2000, the State of Montana (State) charged Kimc by information
in the District Court with felony theft, secondoffense DUI and driving while his licensewas
suspended. At Kime’s initial appearance,the District Court continued the $25,000 bail
amount previously set by the JusticeCourt. Kime subsequentlypleadedguilty to the charges
pursuant to a plea agreement and, at sentencing,requested the court to credit his sentence
with the time he was incarcerated between the dates of his arrest and the April 2, 2001,
sentencing. The District Court, however, credited Kime’s sentenceonly with 20 days time
served between his arrest and December 5,2000, when he was transported from the Jail to
the MSP. The court enteredjudgment on the convictions and sentenceand Kime appeals.
STANDARD OF REVIEW
ll6 We review a district court’s sentencefor legality. State v. Horton, 2001 MT 100,y
17,305 Mont. 242,y 17,25 P.3d 886,117 (citations omitted). Our standardofreview ofthe
legality of a sentenceis whether the district court abusedits discretion. Horton, 1 17.
DISCUSSION
17 Did the District Court abuseits discretion in sentencing Kime by failing to give him
sufficient credit for preconviction time served in jail?
78 In refusing to credit Kime’s sentencewith the time he was incarcerated subsequent
to his transfer to the MSP on December 5,2000, the District Court concluded that, after that
point, Kime was incarceratedbecauseof his prior felony offense rather than the offenses for
which it was imposing sentence. Kime contendsthat the District Court abusedits discretion.
3
1P Section 46 I S-403( I), MCA, provides that “[a]ny person incarcerated on a bailable
offense and against whom a judgment of imprisonment is rendered must be allowed credit
for each day of incarceration prior to or after conviction _” Kime arguesthat, becauseall
three of the offenses with which he was charged in this case are bailable offenses and the
District Court imposed a sentenceof imprisonment, § 46-l 8-403( l), MCA, requires that his
sentence be credited with the entire time he was incarcerated between the date he was
arrestedand the datehe was sentenced,notwithstanding the fact that he was also incarcerated
at the MSP as a result of his prior felony conviction during a portion of that time. He relies
on Horton in support of his argument.
110 In Horton, the defendant was arrestedand chargedwith four offenses. Horton, 117-
10. Shortly after his arrest, the State petitioned to revoke his suspendedsentenceimposed
on an earlier offense. Horton, 7 9. Horton subsequently pleaded guilty to three of the
offenses for which he had beenarrestedandthe district court scheduleda sentencinghearing.
Horton, 1 12. At sentencing, Horton requestedthe district court to credit his sentenceswith
the time he served in jail from the time of his arrest through his sentencing. The court orally
stated that Horton would be given credit for time served, but the later written sentence
provided that he would not be given such credit becausehe also had been held in jail as a
result of the revocation petition. Horton, 1 15.
111 On appeal, Horton argued that the district court had erred in issuing a written
sentencingorder which contradicted its oral sentence. The State concededin responsethat,
pursuant to 5 46-l 8-403(l), MCA, Horton was entitled to credit for time served betweenhis
4
arrest and sentencing. Horton, 1132. The State further conceded that, pursuant to State v.
Lane, 1998 MT 76,258 Mont. 286, 957 P.2d 9, a court’s oral pronouncement of sentence
controls over a subsequent written sentence when there is a conflict between the two.
Horton, 133. As a result, we held “that basedupon 5 46-l S-403(1), MCA, and our holding
in Lane, the sentence the District Court orally pronounced from the bench in Horton’s
presenceis the ‘legally effective sentence,“’ andstruck from Horton’s sentencethe provision
that he would not be given credit for time served. Horton, 7 34.
112 Contrary to Kime’s argument that Horton requires that a defendant receive credit
against a sentence of imprisonment for each day served prior to sentencing on a bailable
offense, regardlessof the fact that he or shealso may have beenincarceratedduring the same
period for some other reason, we concludethat our holding in Horton was basedon the rule
that an oral pronouncement of sentencecontrols over a subsequentcontradictory written
sentence. Becausethe State concededwithout argument that Horton was statutorily entitled
to credit for time served in jail, we were not presentedwith--and, thus, did not address--the
issueofwhether § 46-l 8-403( l), MCA, requiresthat a defendant’s sentencebe credited with
time served on an offense notwithstanding the fact that he or she was concurrently
incarcerated as a result of proceedings relating to a different offense. We conclude,
therefore, that Horton is of no assistanceto Kime here. Moreover, Kime does not cite, nor
have we found, any case in which we have addressedthis issue.
113 Notwithstanding the absenceofcase authority, Kime contendsthat, as long asthe two
prerequisites of 5 46-18-403(l), MCA, are met--that is, the defendant hasbeen incarcerated
5
on a bailable offense for which he or she rcccivcs a sentenceof imprisonment--the plain
language of the statute requires that the de’fendant’ssentencebe credited for time served.
The State responds that the statute provides for credit only for time a defendant is
“incarcerated on a bailable offense” and that, once Kime was transported to the MSP on
December 5, 2000, he was incarcerated on--and serving his sentence for--his nonbailable
prior felony offense. Thus, according to the State, after December 5, 2000, Kime was no
longer incarcerated on a bailable offense and is not entitled to credit for time served on the
chargesstemming from his arrest in November of 2000. In other words, the Statearguesthat
a defendant should only be credited for time served prior to sentencing where the
incarceration is directly related to the offense for which the defendant subsequently is
sentencedand that, after December 52000, Kime’s incarceration was related to his sentence
on the prior felony, not the offenses at issue in the present case. We agree.
714 Kime was transported to the MSP on December 5, 2000, to complete serving his
sentenceon the prior felony conviction. After that point, even if Kime had beenable to post
bail to secure his releaseon the charges in this case,he would not have been releasedfrom
the MSP. Thus, each day he served in the MSP between that date and the date of his
sentencing on the convictions at issue in this casewas directly attributable to, and credited
against, that prior conviction.
715 Moreover, the general purpose of § 46-l X-403(I), MCA, is to eliminate the disparity
of treatment between indigent and nonindigent defendants. In other words, credit for time
servedis given so as not to penalizeindigent defendantswho are unableto post bail and must
6
remain in custody until they are sentencedwhen nonindigent defendants may secure their
releaseand remain free during that time period. That purpose is not served by crediting a
defendant’s sentencefor time servedwhere the defendantwould not havebeenreleasedfrom
custody had he or she been able to post bail in any event as a result of being held on a
sentencerelated to an earlier offense.
116 We conclude that, pursuant to § 46-18-403(l), MCA, a defendant’s sentencemay be
credited with the time he or she was incarcerated only if that incarceration was directly
related to the offense for which the sentence is imposed. Here, the time Kime was
incarcerated at the MSP between December 5, 2000, and the date of his sentencing was
related to his prior felony conviction and not the charges of which he was convicted in the
present case. As a result, we further conclude that the District Court correctly refused to
credit Kime’s sentencewith the time servedbetween those dates. We hold, therefore, that
the District Court did not abuse its discretion in sentencing Kime by failing to give him
sufficient credit for preconviction time served in jail.
717 Affirmed.