No. 04-634
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 291N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOSHUA BITTIKOFER,
Defendant and Appellant.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADC 97-360,
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lawrence LaFountain, Attorney at Law, Great Falls, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Brant S. Light, County Attorney, Great Falls, Montana
Submitted on Briefs: October 19, 2005
Decided: November 22,
2005
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. Its case title, Supreme Court cause number and disposition shall be included
in this Court’s quarterly list of nonciteable cases published in the Pacific Reporter and
Montana Reports.
¶2 Joshua Bittikofer (Bittikofer) appeals from the judgment entered by the Eighth
Judicial District Court, Cascade County, on its order revoking his suspended sentence and
resentencing him on his conviction for felony sexual assault. We affirm.
¶3 The issue before us is whether the District Court erred in denying street time credit
toward Bittikofer’s sentence.
BACKGROUND
¶4 In May of 1998, Bittikofer pleaded guilty to one count of felony sexual assault and
the following month the District Court sentenced Bittikofer to the Montana Department of
Corrections (DOC) for a term of eight years. The sentence was suspended subject to
Bittikofer’s compliance with 22 conditions set forth in the sentencing order. In May of 2004,
the State of Montana (State) petitioned the District Court to revoke Bittikofer’s suspended
sentence based on a report of violations, as well as an addendum report, prepared by his
probation officer alleging that Bittikofer violated a total of nine of his probation conditions.
Following an evidentiary hearing, the District Court determined Bittikofer had committed
eight of the nine violations as alleged by the probation officer, including that he had been
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terminated from his sex offender treatment program for noncompliance and he had
unsupervised contact with a minor female. The court then scheduled the case for a
dispositional hearing.
¶5 At the close of the dispositional hearing, the State recommended the District Court
commit Bittikofer to the DOC for eight years with two years suspended. The State further
recommended that the court not give Bittikofer credit for “street time,” meaning time served
in the community on probation. Bittikofer did not request that the District Court impose any
specific sentence, but did request the court to credit his sentence with the time he spent on
probation between his June of 1998 sentencing and October of 2003, when the first alleged
probation violation occurred. The District Court orally sentenced Bittikofer to the DOC for
eight years, with two years suspended, and credited the sentence with 85 days which
Bittikofer spent in the county jail. The court refused to give Bittikofer any credit for street
time. The District Court subsequently entered its written order and judgment revoking
Bittikofer’s suspended sentence and resentencing him in accordance with its prior oral
pronouncement of sentence. Bittikofer appeals.
DISCUSSION
¶6 Did the District Court err in denying street time credit toward Bittikofer’s sentence?
¶7 Section 46-18-203(7)(b), MCA, provides that
[i]f a suspended or deferred sentence is revoked, the judge shall consider any
elapsed time and either expressly allow all or part of the time as a credit
against the sentence or reject all or part of the time as a credit. The judge shall
state the reasons for the judge’s determination in the order. Credit must be
allowed for time served in a detention center or home arrest time already
served.
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Bittikofer contends that the District Court erred in denying him credit for street time because
the court failed to set forth any reason for its refusal to grant him such credit as required by
the above statute.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that the appeal is without
merit because there was no abuse of judicial discretion and the issues are clearly controlled
by settled Montana law which the District Court correctly interpreted.
¶9 Here, the District Court’s written order on the revocation and resentencing expressly
stated that Bittikofer would be given credit toward his sentence for 85 days he spent in the
county jail, but would not be given credit for street time. The court further expressly stated
in its order that the reason for its sentence was Bittikofer’s failure to comply with his
probation conditions. As the District Court stated more specifically at the dispositional
hearing:
[W]hen we give an opportunity [such as a suspension of the entire eight-year
sentence], we expect people to take advantage of it. And by taking advantage
of an opportunity, it means following all the conditions to a T. This is not a
game where following part of the conditions is acceptable or following all the
conditions some of the time. It means you’ve got to follow the conditions all
the time. It’s for your benefit, but equally or more important, it’s for the
community’s benefit.
¶10 We conclude that the District Court satisfied the requirements of § 46-18-203(7)(b),
MCA. We hold, therefore, that the District Court did not err in denying street time credit
toward Bittikofer’s sentence.
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¶11 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE
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