No. 04-075
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 182N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROSITA IVA FISHELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DC 99-13954
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rosita Iva Fishell, pro se, Billings, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
Assistant Attorney General, Helena, Montana; Fred VanValkenburg,
Missoula County Attorney, Dale Mrkich, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: April 13, 2004
Decided: July 13, 2004
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. The decision shall
be filed as a public document with the Clerk of the Supreme Court and shall be reported by
case title, Supreme Court cause number, and result to the State Reporter Publishing
Company and to West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Rosita Iva Fishell (Fishell) appeals the judgment of the Fourth Judicial District Court,
Missoula County, denying her motion for a bond hearing and her motion to amend her
sentence.
¶3 We address the following issues on appeal and affirm:
¶4 1. Did Fishell properly preserve for appeal the argument that she was denied a
bond hearing, as required by statute?
¶5 2. Did the District Court err in denying Fishell’s motion to amend her sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 In July 2000, Fishell pled guilty to two felony drug offenses and to two misdemeanor
offenses. In exchange for her pleas, Fishell received five years suspended on both felony
counts, to run concurrent, and six months suspended on both misdemeanor counts.
¶7 In September 2002, Fishell violated the terms of her probation, being charged with
two felony drug offenses and with one misdemeanor disorderly conduct offense. These
charges were brought in Ravalli County, and Fishell pled guilty to each offense.
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¶8 On February 13, 2003, the Deputy County Attorney of Missoula County then filed
a petition to revoke, requesting that Fishell be arrested and ordered to appear before the
District Court of Missoula County for revocation of probation and imposition of sentence.
¶9 The District Court issued a bench warrant on February 19, 2003, for the arrest of
Fishell, admitting Fishell to bail in the amount of $20,000. Fishell could not post bond.
¶10 On May 20, 2003, a status hearing was held, wherein the District Court of Missoula
County revoked Fishell’s probation and sentenced her on each of the felony drug offenses
to which she had previously pled guilty in July 2000. Fishell was sentenced to the Montana
State Women’s Prison for a term of five years, with her sentences to run concurrently. The
District Court also found the following:
Due to the Defendant’s [Fishell] failure to comply with the terms and
conditions of her suspended sentence while under the supervision of the
Department of Probation and Parole, the Court finds that she is not entitled to
receive, and shall not receive, credit for any elapsed time between the date of
her conviction and the date of this Order, except that Defendant requested that
she receive credit for fifty-eight (58) days jail time which she has previously
served . . . to be applied to the remainder of the fines, which request was not
opposed and granted.
¶11 In August 2003, Fishell requested that the Sentence Review Division (the Division)
of the Montana Supreme Court review her sentence. At this time, Fishell was advised that
the Division had the authority not only to reduce or affirm her sentence, but also to increase
it. She was also advised that no appeal existed from the Division’s decision. Fishell, being
represented at the time, stated that she understood as much and wished to proceed.
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¶12 On September 26, 2003, the Division found, having reviewed Fishell’s reasoning
behind the modification of her sentence, that such reasoning was “insufficient” to hold that
the sentence imposed by the District Court was “inadequate or excessive.”
¶13 On October 24, 2003, Fishell filed a pro se motion with the District Court of Missoula
County to amend the May 20, 2003 Judgment. The District Court denied this motion. To
date, Fishell has not filed a petition for postconviction relief.
¶14 Fishell now appeals the District Court’s denial of her motion to amend.
STANDARD OF REVIEW
¶15 We review a district court’s denial of a motion to amend for an abuse of discretion.
Kills on Top v. State (1996), 279 Mont. 384, 390, 928 P.2d 182, 186.
DISCUSSION
¶16 1. Did Fishell properly preserve for appeal the argument that she was denied
a bond hearing, as required by statute?
¶17 Fishell argues that because she was not afforded a bond hearing within 72 hours of
the service of her bench warrant, “she was denied the opportunity of access to counsel on
the pending Missoula County petition for revocation of . . . [her] suspended sentence.”
Consequently, Fishell argues that she “did not have the opportunity to answer to the
suspected violations of her probationary sentence in the Missoula County Court until May
20, 2003, ninety-eight (98) days after she was served” with the bench warrant.
¶18 The State of Montana (the State) argues that Fishell raises for the first time now on
appeal her argument that “she was held without a bond hearing, and that there was
unnecessary delay in resolving the petition for revocation of her suspended sentence.” As
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such, the State argues that this Court should not now review her postconviction claims, as
these claims should have been previously raised. We agree.
¶19 Fishell acknowledged her rights and pled guilty to two of the probation violation
charges against her at a hearing held on May 20, 2003. At that time, Fishell could have
raised her bond hearing argument, but she did not. We have repeatedly held that we will not
consider issues raised for the first time on appeal, as a district court cannot be faulted for
something which it never had opportunity to decide. In re Marriage of Gerhart, 2003 MT
292, ¶ 31, 318 Mont. 94, ¶ 31, 78 P.3d 1219, ¶ 31. Therefore, we decline to address
Fishell’s bond hearing argument here.
¶20 2. Did the District Court err in denying Fishell’s motion to amend her
sentence?
¶21 Fishell argues that she was not granted all of her pre-sentence jail time that is required
by the concurrent sentence imposed by the District Court of Missoula County.
¶22 The State argues that because the District Court has discretion in granting or denying
credit for time served on probation, this Court should not disturb Judge Harkin’s rulings in
granting 58 days for jail time served awaiting disposition of Fishell’s motion to amend and
in declining to grant Fishell any credit for time served on probation. We agree.
¶23 Under § 46-18-203(7)(b), MCA, “[i]f a suspended sentence . . . is revoked, the judge
shall consider any elapsed time and either expressly allow all or part of the time as credit
against the sentence or reject all or part of the time as a credit.” In addition, “[c]redit must
be allowed for time served in a detention center or home arrest time already served.” Section
46-18-203(7)(b), MCA.
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¶24 Here, again, Judge Harkin, under the discretion afforded him by statute, granted
Fishell credit for jail time served awaiting disposition of her motion to amend while he
declined to grant credit for time served on probation. The District Court acted within the
discretion afforded it by statute, namely § 46-18-203(7)(b), MCA, and did not abuse its
discretion in rendering that judgment. Therefore, we hold that the District Court did not err
in denying Fishell’s motion to amend.
¶25 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE
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