No. 13721
I N THE SUPREME COURT OF THE STATE OF MONTANA
1977
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable C h a r l e s Luedke, J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant:
W. A r t Graham, L e g a l I n t e r n , a r g u e d , M i s s o u l a ,
Montana
David J. P a t t e r s o n a r g u e d , M i s s o u l a , Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Allen Chronister argued, A s s i s t a n t Attorney General,
Helena, Montana
H a r o l d H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
Submitted: A p r i l 1 5 , 1977
Decided: JuN - 2 1 n
91
Filed: ~ U .N2 '5;-
Mr. Justice Frank I, Haswell delivered the Opinion of the Court.
This is an application for post-conviction relief by an
inmate of the Montana State Prison. He seeks to void an order
of the district court, Yellowstone County, revoking a Sentence
Review Division suspension of his sentence.
On December 13, 1972, petitioner Robert John Ratzlaff was
convicted of the crime of robbery by jury verdict in the district
court of the thirteenth judicial district, County of Yellowstone,
Billings, Montana. On January 3, 1973, Hon. Charles Luedke,
district judge, sentenced petitioner to 25 years in Montana State
Prison with credit given for time already served.
Petitioner sought reduction of his sentence from the Sentence
Review Division. On November 7, 1974, the Sentence Review Division
ordered that "* * * THE LAST 10 YEARS OF SAID SENTENCE IS HEREBY
SUSPENDED." An amended judgment and commitment conforming thereto
was ordered on November 21 by Hon. Robert J. Boyd, district judge,
third judicial district, which encompasses Powell County, where
the state prison is located and the Sentence Review Division sits.
On June 9, 1975, petitioner was paroled from Montana State
Prison. While on parole in August 1976, petitioner was charged with
violating the conditions of his parole. In a preliminary hearing
held by a hearing officer for the Montana Board of Probation and
Parole, probable cause that violations had occurred was found.
The Yellowstone County attorney petitioned the district court
of Yellowstone County to revoke the suspension of sentence previously
granted by the Sentence Review Division. At the hearing, petitioner
objected to the jurisdiction of the district court to determine the
matter. On October 4, 1976, Judge Luedke entered a finding that
petitioner had violated his parole and ordered the suspension of
sentence by the Sentence Review Division revoked.
Subsequently, the Montana Board of Pardons revoked peti-
tioner's parole following a hearing. Petitioner is now incarcerated
at Montana State Prism under his original 25 year sentence.
Petitioner has applied to this Court seeking to have the
district court's order revoking suspension of his sentence declared
void.
Three issuesof law are presented for decision:
(1) Does the district court have jurisdiction to revoke a
suspension of sentence granted by the Sentence Review Division?
(2) Does the district court have jurisdiction to revoke a
suspension of sentence for violation of parole conditions imposed
by the Board of Pardons?
(3) Does revocation of a suspension of sentence by the district
court after petitioner had begun serving a lawfully suspended sentence
violate the double jeopardy provisions of the federal and state
constitutions?
Petitioner argues the district court has no jurisdiction to
revoke suspension of a sentence granted by the Sentence Review
Division. He points out that section 95-2503, R G M
... 1947, expressly
provides that the decision of the Sentence Review Division is final;
that revocation of such suspension of sentence is contrary to the
purpose of the Sentence Review Division in that it permits the
original sentencing court, with a potential for vindictive treatment
of the offender, to nullify the decision of the Division; and, that
only the court which suspended the sentence has power to revoke the
suspension under section 95-2206, R.C.M. 1947.
Section 95-2503 provides in pertinent part that the "decision
of the review division in each case shall be final." This is not'
equivalent to a prohibition against revocation of its suspension of
sentence by reason of defendant's subsequent conduct violating the
conditions of suspension. The conditions of suspension, although
not expressed in the Division's order or the amended judgment,
sentence and commitment of Judge Boyd in conformity therewith, are
necessarily implied as the power to suspend without probation has
been held not to exist. State ex rel. Foot v. Dist. Ct., 72 Mont.
374, 233 P. 957. The conditions are found in the regulations of the
Board of Pardons, MAC 20-3.10(6) - S10060, and it is these conditions
that Judge Luedke found petitioner had violated. which form the
basis for revocation of the suspension. Thus the Division's deci-
sion was not nullified by the action of the district court, but
on the contrary was recognized and given effect in conformity with
its conditions.
The potential for vindictive treatment of the offender at a
revocation hearing appears no greater here than where the suspen-
sion was granted by the original sentencing court under section
95-2206, both before and after its amendment in 1974. There is
nothing in this record to even remotely suggest the presence of
such factor. Nor do we find such abstract potential to contravene
the purposes of the Sentence Review Division. The Division consists
of three district judges who are simply not in an adversary position
v h m d s - their colleagues whose sentences they review.
Section 95-2206 provides in pertinent part:
"Any judge who has suspended the execution of a
sentence * * * of imprisonment under this section,
or his successor, is authorized thereafter, in his
discretion, during the period of such suspended
*
sentence * * * to revoke such suspel~sion * I'.*
Although this statute grants the power of revocation to a district
judge who has suspended a sentence of imprisonment, it does not
necessarily withhold such power where the suspension is granted
by the Sentence Review Division. We note there is no grant of the
power of revocation to the Division. Sections 95-2501 through
95-2504, R C M
... 1947. As the Division operates only on petition
of the defendant (section 95-2502), constitutional due process and
double jeopardy problems would arise if the state were permitted
to initiate proceedings there. These considerations persuade us
to adopt the view that the Division lacks jurisdiction over a revo-
cation proceeding initiated by the state.
If the Division lacks jurisdiction to hear the state's petition
to revoke a Division-imposed suspension of sentence, who but the
district court has that power? The district court is a court of
general jurisdiction. The revocation of a suspension of sentence
leaves the defendant subject to execution of the original sentence,
as though it had never been suspended. Roberts v. United States,
320 U S 264, 64 S.Ct. 113, 88 L ed 41.
.. If the district court has
no jurisdiction to revoke, a suspension ordered by the Division would
amount to a pardon rather than a suspended sentence as the conditions
of suspension would be a nullity for lack of power to enforce them.
In the absence of an express statute governing revocation of sus-
pended sentences imposed by the Division, we hold the original sen-
tencing court has the implied power and jurisdiction to hear and
decide revocation petitions concerning Division-imposed suspensions.
Petitioner further contends the Board of Pardons, not the
district court, has jurisdiction to revoke a suspension of sentence
for violation of parole conditions imposed by the Board of Pardons.
He argues that where the court imposes no conditions upon suspension
of sentence, the Board of Pardons gained the power to impose
conditions of probation and to supervise the defendant's proba-
tionary period and as a consequence the power to determine viola-
tions is clearly in the Board of Pardons.
Petitioner overlooks the dual nature of the conditions imposed
by the Board of Pardons. The conditions found in the regulations
of the Board of Pardons, MAC 20-3.10(6) - S10060, were conditions
of suspension of sentence as well as parole conditions. Section
94-9830, R C M
... 1947, since repealed,was in effect when the
Sentence Review Board suspended the sentence of petitioner and
provided :
"The board [of pardons] may adopt general rules or
regulations concerning the conditions of probation
or suspension of sentence. Such conditions shall
apply in the absence of any specific or inconsistent
conditions imposed by a court. Nothing herein con-
tained shall limit the authority of the court to impose
or modify any generhl or specific conditions of probation
or of suspension of sentence." (Bracketed words supplied.)
Petitioner concedes that this statute caused the conditions set
forth in MAC 20-3.10(6) - S10060 to be imposed upon him when the
Sentence Review Division suspended sentence.
We do not dispute petitioner's claim that the Board of
Pardons has discretion to determine when parole violators should
be returned to the Montana State Prison. In fact, the Board has
done- this in petitioner's case. But the ~oard's supervisory powers
over petitioner do not divest the district court of jurisdiction to
hear and determine whether petitioner has also violated the condi-
tions of suspension of his sentence and revoke such suspension where
violation has occurred. For reasons heretofore noted, this juris-
diction is vested in the district court. Here the district court
acted in conformity with this jurisdiction rather than for
violation of parole.
The final issue is whether the district court's revocation
of the suspension of sentence contravened double jeoparty prohi-
bitions in the federal and state constitutions. Petitioner argues
that after he had commenced serving the 25 year sentence with 10
years suspended, the sentence was increased to the full 25 years
and this imposed a second punishment for the same offense, citing
Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L ed 872 and Kohlfuss v.
Warden, 149 Conn. 692, 183 A.2d 626.
The Fifth Amendment to the United States Constitution provides
that no person shall "be subject for the same offense to be twice
put in jeopardy of life or limb." This prohibition is applicable
to state action under the "due process" clause of the Fourteenth
Amendment to the United States Constitution. North Carolina v.
Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L ed 2d 656. It protects
offenders from multiple punishment for the same offense. Ex parte
Lange, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113,
75 L ed 354. Montana' s constitutional provision is substantially
similar providing that "No person shall be again put in jeopardy
for the same offense * * *." Art. 11, Section 25, 1972 Montana
Constitution.
However, revocation of suspension of a sentence does not
constitute a second punishment for the same offense. A defendant
under a suspended sentence lives with the knowledge that "a fixed
sentence for a definite term hangs over him." Roberts v United
.
States, supra; State ex rel. Bottomly v. District Court, 73 Monte
541, 237 P. 525. The defendant's subsequent conduct, not his original
offense, forms the basis of revocation and reinstates the original
sentence. Petitioner is not being punished twice for the same
offense. For these reasons Lange and Kohlfuss are inapplicable.
Petitioner' s application for post-conviction relief is
denied and this proceeding is dismissed.
Justice
. ?: ( >2
- '-
Hon. James M. Salansky, ~ist)i?ict
~ u d g e ,sitting for Chief J u d i c e
Paul G. Hatffeld.