November 4 2009
DA 09-0169
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 372N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES DAVID LANE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 05-480
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Eric Bunn; Assistant Public Defender, Office of the State Public Defender,
Billings, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Ingrid Rosenquist, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: September 3, 2009
Decided: November 3, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 2006, 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 Lane appeals from the order of the District Court denying his motion to dismiss
the State’s petition to revoke his probationary sentence. We affirm.
¶3 Lane was convicted of felony DUI and was sentenced on February 13, 2006, to 13
months with the Department of Corrections (DOC), provided that if he completed a
residential alcohol treatment program during that time the remainder of the 13 months
would be served on probation. This was followed by a consecutive sentence of three
years with DOC, suspended. The judgment ordered that Lane comply with 25 express
conditions “during said term of probation.”
¶4 Lane did not complete a residential alcohol treatment program and so was
incarcerated for the first 13 months of the sentence. He was released in March, 2007 and
signed the rules of his suspended sentence, including the 25 conditions of probation. In
December, 2007, Lane wrote to Judge Baugh, asking for a review of his sentence and
contending that the conditions of probation applied only if he were released during the
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initial 13-month portion of the sentence. Judge Baugh responded by letter, stating that
“without doubt” Lane was on probation for the three suspended years of his sentence.
¶5 Among the conditions of probation in Lane’s sentence was that he not drive a
motor vehicle without permission of his probation officer, and that any vehicle he drove
must be equipped with an ignition interlock system as required by § 61-8-731(4), MCA.
The revocation proceedings from which this case arose were based upon Lane’s driving a
car without permission and without an ignition interlock device.
¶6 Lane moved to dismiss the probation revocation proceeding. He contended that
the 25 conditions of probation in his sentence applied only if he were released on
probation during the initial 13 months. Lane argued that he was under no conditions
during the suspended three years of the sentence because the word “probation” was not
mentioned in that paragraph of the order. Therefore, Lane contended that he could not
have been the subject of a probation revocation proceeding for violating the terms of
probation.
¶7 The District Court denied Lane’s motion to dismiss the probation revocation
proceeding and subsequently found that he had violated the conditions of probation that
restricted his driving. The District Court revoked Lane’s probation and sentenced him to
three years, suspended, and imposed the same conditions listed in the original sentence.
On appeal Lane does not contest the finding that he drove without permission and
without an ignition interlock.
¶8 Lane contends that there is a technical error in the February 13, 2006 sentencing
order, and therefore that he was not subject to any conditions during the three-year
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suspended portion of the sentence. This contention is based on the presence of the word
“probation” in connection with the initial 13-month portion of the sentence, and the
absence of that word from the portion of the sentence describing the suspended three
years.
¶9 The District Court’s original 2006 sentence closely follows the format of § 61-8-
731, MCA, establishing the mandatory provisions of a sentence for felony DUI upon a
fourth or subsequent offense. A person convicted of a fourth or subsequent DUI must be
sentenced to an initial term of 13 months but is eligible for probation if he completes a
residential alcohol treatment program. That must be followed by a subsequent
consecutive suspended sentence of up to five years. Section 61-8-731(1), MCA. The
statute also requires “as a condition of probation” that the court impose conditions on the
convicted person, including prohibiting operation of a motor vehicle without permission
of the probation officer and use of an ignition interlock system if permission to drive is
granted. Section 61-8-731(4), MCA.
¶10 The District Court’s original 2006 sentence in Lane’s case followed the statutory
requirements, using language almost identical to the language in the statute. We construe
the statute the same way we construe Lane’s sentence: that the mandatory suspended
sentence imposed by § 61-8-731(1), MCA, is served on probation as required by § 61-8-
731(4), MCA. Construing the statute and Lane’s sentence in any other way would render
meaningless the mandatory suspended sentence required by the statute. The consecutive
suspended sentence required by § 61-8-731, MCA, must be served on probation. State v.
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Kampf, 2008 MT 198, ¶ 25, 344 Mont. 69, 186 P.3d 223. We decline to construe Lane’s
February 13, 2006, sentence in a manner that would violate § 61-8-731, MCA.
¶11 The District Court therefore properly rejected Lane’s motion to dismiss the
probation revocation proceeding.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. The issues are clearly controlled by settled Montana law.
¶13 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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