October 2 2007
DA 06-0607
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 251N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CINDY JO CONVERSE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-05-1061
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kelly J. Varnes, Hendrickson, Everson, Noennig & Woodward, P.C. Billings,
Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney
General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Sheila Kolar, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: May 23, 2007
Decided: October 2, 2007
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, 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. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Appellant Cindy Jo Converse (Converse) appeals from an order of the Thirteenth
Judicial District Court, Yellowstone County, denying her motion to dismiss.
¶3 On September 24, 2002, Converse was convicted of misprision of a felony, in
violation 18 U.S.C. § 4 in United States District Court, District of Montana. Converse’s
sentence included one year of supervised release.
¶4 During Converse’s supervised release, on or about June 18, 2004, a United States
Probation Officer requested Billings Police to assist with a probation search. A search of
Converse’s residence revealed 2.1 grams of methamphetamine. Converse stated the drugs
were hers.
¶5 Upon receipt of the Probation Officer’s report, the U.S. Attorney filed a petition to
issue an arrest warrant, in part, for Converse’s violation of probation. The U.S. District
Court revoked Converse’s supervised release and committed her to the custody of the Bureau
of Prisons for twelve months. The U.S. Attorney did not charge Converse with a federal
offense for possessing the 2.1 grams of methamphetamine. Converse was released from
federal custody on June 18, 2005.
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¶6 On November 21, 2005, the State of Montana charged Converse with felony
possession of dangerous drugs, methamphetamine, under § 45-9-102, MCA. The
methamphetamine she was alleged to have unlawfully possessed was the same
methamphetamine which resulted in the revocation of her federal probation. Converse
moved to dismiss the charge, arguing the United States had already punished her for that
offense when it revoked her probation. The District Court denied her motion. Converse pled
guilty reserving the right to appeal the denial of her motion to dismiss. Converse was
sentenced and this appeal followed.
¶7 Converse argues that the District Court erred by not granting her motion to dismiss
because the revocation of her federal supervised release and the criminal charge filed by the
State result in double punishment for the same crime. However, the revocation of a
probationary sentence does not constitute new punishment for the previous criminal offense.
Revocation is the consequence of violating probationary conditions. State v. Walker, 2001
MT 170, ¶ 12, 306 Mont. 159, ¶ 12, 30 P.3d 1099, ¶ 12. Charging Converse with a criminal
offense for possessing the methamphetamine in question does not constitute charging her
with an offense for which she has already been punished.
¶8 The facts in this case are not contested. It is manifest on the face of the briefs and
record before us that settled Montana law clearly controls the legal issues and that the
District Court correctly interpreted the law.
¶9 Affirmed.
/S/ JOHN WARNER
We Concur:
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/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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