No. 14289
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID OPPELT,
Defendant and Appellant.
Appeal from: District Court of the Eighth Judicial District,
Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
For Appellant:
James A. Lewis, Public Defender, argued, Great Falls,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Richard Larson, Assistant Attorney General, argued,
Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted: September 10, 1979
Decided :
Filed: ~ T ? J
1972.
Mr. Chief Justice Frank I Haswell delivered the Opinion of
.
the Court.
Defendant, David Oppelt, appeals from revocation of a
suspended sentence by the Cascade County District Court.
In 1975, Oppelt was convicted of burglary upon entry of
a guilty plea. He was given a 10 year sentence which was
suspended on condition he abide by customary probation rules.
In May 1977, a jury found Oppelt guilty of aggravated
assault, aggravated burglary and attempted theft. He was
sentenced to 10 years in prison but released on bail pending
appeal. The conviction was affirmed by this Court on June 8,
1978. State v. Oppelt (1978), Mont . , 580 P.2d 110,
35 St.Rep. 727.
On October 7, 1977, a petition for revocation of the
April 1975 suspended sentence was filed. It incorporated a
district parole officer's report of violations which alleged
that Oppelt assaulted Donna and Harold McClure; that he
messed up and partially burned Donna McClure's house; that he
intimidated April McClure; and that he had been seen drinking
heavily. The "summary" contained on page two of the report
listed the May, 1977 convictions as additional violations.
Defense counsel and the county attorney each had complete
copies of the report. However, page two of the report was
missing from the petition filed in the District Court. As a
result, the contents of that page, specifically, the convictions
for aggravated burglary, aggravated assault and attempted theft
were unknown to the District Judge. Likewise, defendant was
not personally aware of their inclusion in the petition.
Oppelt was brought before the court on October 14 and defense
counsel obtained a continuance.
Defendant obtained a second continuance and on November
22, 1977, a hearing was held. In addition to a fire inspector's
testimony, affidavits regarding the assault and the burning
were submitted subject to a later determination of admissibility
The s t a t e o f f e r e d t h e May 1 9 7 7 c o n v i c t i o n s and d e f e n d a n t
o b j e c t e d o n t h e b a s i s t h e y were o n a p p e a l . The c o u r t n e i t h e r
admitted nor refused t h e evidence. C o u n s e l were a s k e d t o ,
and d i d f i l e b r i e f s o n t h e a d m i s s i b i l i t y o f t h e a f f i d a v i t s
and t h e c o n v i c t i o n s . N o d e c i s i o n was r e n d e r e d o n t h e f i r s t p e t i t i o n .
On F e b r u a r y 1, 1 9 7 8 , a n o t h e r p e t i t i o n f o r r e v o c a t i o n o f
t h e s u s p e n d e d s e n t e n c e was f i l e d . I t incorporated a second
r e p o r t o f v i o l a t i o n s w h i c h c l e a r l y l i s t e d t h e May 1 9 7 7
convictions a s infractions. On t h e same d a y , d e f e n d a n t was
b r o u g h t b e f o r e t h e c o u r t w i t h o u t h i s a t t o r n e y , who a p p a r e n t l y
r e c e i v e d no n o t i c e o f t h e h e a r i n g . The c o u r t a s c e r t a i n e d t h a t
O p p e l t d i d n o t know t h e f i r s t p e t i t i o n was i n p a r t b a s e d o n
t h e May, 1 9 7 7 c o n v i c t i o n s . D e f e n d a n t was i n f o r m e d t h e s e c o n d
p e t i t i o n was b a s e d o n t h e s e c o n v i c t i o n s and t h a t t h e f i r s t
p e t i t i o n was d i s m i s s e d . H e was f u r t h e r a d v i s e d t h a t s i n c e
h i s a t t o r n e y was n o t p r e s e n t , t h e h e a r i n g was c o n t i n u e d .
A h e a r i n g o n t h e s e c o n d p e t i t i o n was h e l d on F e b r u a r y
1 0 , 1978. D e f e n d a n t moved t o q u a s h t h e p e t i t i o n o n g r o u n d s
h e was d e n i e d c o u n s e l when h e was b r o u g h t b e f o r e t h e c o u r t on
F e b r u a r y 1 and f u r t h e r t h a t h e w a s b e i n g s u b j e c t e d t o d o u b l e
jeopardy. The m o t i o n was d e n i e d . The o n l y e v i d e n c e i n t r o d u c e d
by t h e s t a t e were c e r t i f i e d c o p i e s o f t h e May 1 9 7 7 c o n v i c t i o n s .
They were a d m i t t e d o v e r d e f e n d a n t ' s o b j e c t i o n .
The s u s p e n d e d s e n t e n c e was r e v o k e d by c o u r t o r d e r o n
F e b r u a r y 1 4 , 1977, and d e f e n d a n t a p p e a l s . The f o l l o w i n g
i s s u e s a r e before t h e Court.
1. Was d e f e n d a n t s u b j e c t e d t o d o u b l e j e o p a r d y ?
2. Was d e f e n d a n t d e n i e d h i s r i g h t t o c o u n s e l ?
3. Was d e f e n d a n t d e n i e d d u e p r o c e s s o f l a w ?
4. Was d e f e n d a n t a f f o r d e d a h e a r i n g w i t h o u t u n n e c e s s a r y
delay?
A t t h e o u t s e t , w e n o t e t h a t a s u s p e n d e d s e n t e n c e may b e
revoked on t h e b a s i s of a f e l o n y c o n v i c t i o n , even though t h e
c o n v i c t i o n is a w a i t i n g a p p e l l a t e review. Roberson v. S t a t e
of Connecticut (2nd C i r . 1 9 7 4 ) , 5 0 1 F.2d 3 0 5 , 3 0 8 ; U n i t e d
S t a t e s v. C a r r i o n ( 9 t h C i r . 1 9 7 2 ) , 457 F.2d 808; See g e n e r a l l y ,
Anno. 76 ALR3d 588; S t a t e v. Radi ( 1 9 7 8 ) , Mont. , 578
P.2d 1 1 6 9 , 1 1 8 1 , 35 S t . R e p . 4 8 9 , 503, h o l d s t h a t p e r s i s t e n t
o f f e n d e r s t a t u s i s n o t a v o i d e d w h e r e p r e v i o u s c o n v i c t i o n is
pending on a p p e a l a t t h e t i m e of s e n t e n c i n g .
Defendant contends t h a t r e v o c a t i o n of t h e suspended
s e n t e n c e e n h a n c e s h i s p u n i s h m e n t and t h u s s u b j e c t s him t o
double jeopardy. We disagree. Even t h o u g h a d e f e n d a n t m u s t
l i v e with the conditions of probation throughout the period
of s u s p e n s i o n and even though he must s e r v e t h e e n t i r e s e n t e n c e
i f t h e s u s p e n s i o n is r e v o k e d , t h e r e is no d o u b l e j e o p a r d y .
The l e g i s l a t u r e h a s p r o v i d e d :
I' (1) Whenever a p e r s o n h a s b e e n f o u n d g u i l t y o f
a n o f f e n s e upon a v e r d i c t o r a p l e a o f g u i l t y ,
t h e c o u r t may:
" ( b ) s u s p e n d e x e c u t i o n o f s e n t e n c e u p t o t h e maximum
sentence allowed f o r t h e p a r t i c u l a r offense. The
s e n t e n c i n g j u d g e may i m p o s e o n t h e d e f e n d a n t a n y rea-
sonable r e s t r i c t i o n s d u r i n g t h e p e r i o d of suspended
sentence. S u c h r e a s o n a b l e r e s t r i c t i o n s may i n c l u d e :
... (iii)conditions f o r probation;
" ( 2 ) I f any r e s t r i c t i o n s or c o n d i t i o n s imposed
u n d e r s u b s e c t i o n ( l ) ( a ) or ( l ) ( b ) a r e v i o l a t e d , a n y
e l a p s e d t i m e , e x c e p t j a i l t i m e , s h a l l n o t be a c r e d i t
against the sentence unless the court orders other-
wise." S e c t i o n 46-18-201, MCA.
Montana case l a w i s c l e a r l y t o t h e same e f f e c t .
"The r e v o c a t i o n o f a s u s p e n s i o n o f s e n t e n c e l e a v e s
the defendant subject t o execution of the orig-
i n a l s e n t e n c e , as t h o u g h i t h a d n e v e r b e e n s u s p e n d e d . "
Matter o f R a t z l a f f ( 1 9 7 7 ) , Mont - 1 . 564 P. 2d
1 3 1 2 , 1 3 1 5 , 34 S t . Rep. 4 7 0 , 473, c i t i n g R o b e r t s v.
U n i t e d S t a t e s ( 1 9 4 3 ) , 320 U.S. 2 6 4 , 64 S . C t . 1 1 3 ,
88 L.Ed. 41; see a l s o S t a t e e x r e l . B o t t o m l y v.
D i s t r i c t C o u r t ( 1 9 2 5 ) , 7 3 Mont. 5 4 1 , 5 4 6 , 237 P.2d 5 2 5 , 526.
Speaking d i r e c t l y t o t h e q u e s t i o n , w e have s a i d :
"The F i f t h Amendment t o t h e U n i t e d S t a t e s C o n s t i -
t u t i o n p r o v i d e s t h a t no person s h a l l ' b e s u b j e c t
f o r t h e same o f f e n s e t o b e twice p u t i n j e o p a r d y
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, [85 U.S. (18 Wall) 163,
21 L.Ed 8721; United States v. Benz 282 U.S. 304,
51 S.Ct. 114, 75 L.Ed. 354. Montana's constitu-
tional 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 a suspension of a sentence
does not constitute a second punishment for the
same offense. A defendant under a suspended sen-
tence lives with the knowledge that 'a fixed sen-
tence for a definite term hangs over him.' Roberts
v. United States, supra; State ex rel. Bottomly v.
District Court, supra. 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." State v. Ratzlaff, 564 P.2d at 1316,
34 St.Rep. at 474. See also Paul v. State (Alaska
1977), 560 P.2d 754; 22 C.J.S. Criminal Law 8239,
p. 623.
Defendant's reliance on Flint v. Hocker (9th Cir. 1972), 462 F.2d
590, is misplaced. There, the court held that a probationer has
the right to counsel when revocation of probation could result in
the execution of the original sentence. The decision did not con-
demn the execution of the original sentence upon revocation.
Defendant next asserts, and we will assume, that both pro-
ceedings to revoke the suspended sentence were based on the May,
1977, convictions. His argument that this subjects him to double
jeopardy fails because it ignores the basic nature of proceedings
to revoke a suspended sentence.
After conviction, the decision to suspend a sentence is a
"decision to forego complete denial of liberty by incarceration in
favor of a judicially-supervised period of restricted liberty in
the hope that the purposes of rehabilitation of defendant and the
protection of the public can be achieved by the lesser deprivation
of liberty." State v. Eckley (1978), 34 0r.App. 563, 579 P.2d 291,
293. In essence, the trial court retains jurisdiction over the
defendant by imposing conditions on defendant's freedom to which
he agrees to abide. Marutzky v. State (0kla.Cr. 1973), 514 P.2d
The revocation hearing is not a criminal trial. Petition
of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190.
" ... It is an exercise of the court's supervision
over a probationer . . .
"There is no adjudication of guilt or innocence
upon the court's entry of its order upon an appli-
cation to revoke. The court has only made a factual
determination involving the existence of a violation
of the terms of the suspended sentence." Marutzky,
514 P.2d at 431. See also Petition of Meidinger,
168 Mont. at 15, 539 P.2d at 1190; State v. Ratzlaff,
supra, 34 St.Rep. at 474, 564 P.2d 1316.
"Because a revocation proceeding is not a criminal
adjudication, does not require proof of a criminal
offense, does not impose punishment for any new
offense, and is an act in the performance of the duty
of judicial supervision of probationary liberty ...
the Double Jeopardy Clause is [not] applicable." State
v. Eckley, 579 P.2d at 293.
In this case, the first petition was dismissed without any
determination on the merits. Under these circumstances and in recog-
nition of the essence of revocation proceedings, the prohibitions
against double jeopardy do not preclude the state from filing a
second petition alleging the same facts. See State v. Rios (1977),
114 Ariz. 505, 562 P.2d 385. We recognize there may be a limit on
how many times the same operative facts may be used as a basis for
a petition to revoke. However, we do not reach the issue of the
effect of a dismissal on the merits on a second petition based on
the same facts. Cf. Davenport v. State (Tex. 1978), 574 S.W.2d 73;
State v. Simmerman (1978), 118 Ariz. 298, 576 P.2d 157; State v.
Eckley, supra; Marutzky v. State, supra.
The record belies defendanva contention that he was denied
counsel. On February 1, 1978, Oppelt briefly appeared in court
without his attorney. The court dismissed the first petition for
revocation and informed defendant that a second petition, based on
the May 1977 convictions, had been filed. The court noted that counsel
was not present and continued the hearing.
Defendant argues if counsel were present, he would have
objected to the second petition on double jeopardy grounds, As
demonstrated above there was no double jeopardy and defendant
was not prejudiced by the absence of an objection on that ground.
There was no denial of fundamental fairness or due process. We
find no error. Petition of Doney (1974), 164 Mont. 330, 522 P.2d 92.
Defendant next argues he was denied due process of law by
the absence of witness confrontation and the lack of a two-step hear-
ing process. We disagree.
Defendant's guilt or innocence of the original crime is not
at issue in revocation proceedings and he is not afforded the full
range of constitutional rights available at trial. Gagnon v. Scarpelli
(1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L Ed 2d 656; Davenport v.
State, supra, 574 S.W.2d at 75. This is not to say defendant has
no rights in such proceedings; in Gagnon the United States Supreme
Court likened revocation of probation to revocation of parole and
held a probationer was entitled to a preliminary and a final hearing.
See Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L Ed 2d
484, requiring preliminary and final hearings in parole revocation.
"At the preliminary hearing, a probationer or parolee
is entitled to notice of the alleged violations of
probation or parole, an opportunity to appear and to
present evidence in his own behalf, a conditional right
to confront adverse witnesses, an independent decision-
maker, and a written report of the hearing. 408 U.S.
at 487. The final hearing is a less summary one be-
cause the decision under consideration is the ultimate
decision to revoke rather than a mere determination of
probable cause, but the 'minimum requirements of due
process' include very similar elements:
"'(a) written notice of the claimed violations of [pro-
bation or] parole; (b) disclosure to the [probationer
or] parolee of evidence against him; (c) opportunity
to be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation); (e) a 'neutral and detachedH hearing
body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f)
a written statement by the factfinders as to the evidence
relied on and reasons for revoking [probation or]
parole.' Morrissey v. Brewer, supra at 489."
Gagnon v. Scarpelli, 411 U.S. at 786, 93 S.Ct. at
1761-1762, 36 L Ed 2d at 664.
The February 1 hearing was not intended to be, but became a pre-
liminary hearing in that there was a "minimal inquiry" into the
basis of the petition. On that date defendant was given notice of
the basis of the petition and was before an impartial magistrate.
As there was no issue of fact, the giving of evidence was not nec-
essary and there was no need to confront witnesses. Likewise,
fundamental fairness did not require a written report of this hear-
ing. At the February 10 hearing, which was in effect the final
hearing, defendant was afforded notice, had an opportunity to be
heard, was before a neutral hearing body and was given written notice
of the revocation and the reason therefor. The only witness against
him, the prosecutor, was subjected to cross-examination. As the only
basis for revocation was the entry of the May 1977 conviction, it was
not necessary for him to present witnesses. Defendant's argument that
he was denied his right to confront witnesses at the hearing on the
first petition (November 22, 1977) is not germane to the order issued
on the second petition.
Defendant's argument that he was denied his constitutional
right to a speedy trial lacks merit. A speedy trial under the Sixth
Amendment to the United States Constitution and section 24, Article
I1 of the Montana Constitution is guaranteed only in "criminal prose-
cutions." As discussed, revocation of probation is not a criminal
prosecution or proceeding. See Paul v. State, supra.
In the alternative defendant notes he has a right to a hear-
ing "as promptly after arrest as possible" under section 46-23-1013,
MCA. See also Morrissey v. Brewer, 408 U.S. at 485, 92 S.Ct. at 2602,
33 L Ed 2d at 496. This is a determination to be made on the basis
of the facts of the particular case. Here, defendant was initially
brought before the court on October 14, 1977. Although the record
is not clear as to the exact date of arrest, we know it occurred
between October 7, the date the arrest warrant was issued, and
October 14, the date of the initial hearing. There is no claim that
an unreasonable time elapsed between arrest and this first hearing.
Thereafter, defendant caused substantial delays and did not at any
time assert his right to a hearing without unnecessary delay. We
are also mindful of the dismissal of the first petition and the neces-
sity of filing the second petition. Under the facts of this case
there was no unnecessary delay. Defendant's argument the delay prej-
udiced him by causing him to lose the premium on his appeal bond is
without merit. The bond was lost as a result of his arrest, not as
a result of any delay, necessary or otherwise.
Affirmed.
Chief Justice
We concur:
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