Rose v. McCormick
| Decision Date | 12 May 1992 |
| Docket Number | No. 92-021,92-021 |
| Parties | William Newton ROSE, Plaintiff and Appellant, v. Jack McCORMICK, Warden Montana State Prison, Defendant and Respondent. |
| Court | Montana Supreme Court |
William Newton Rose, pro se.
James B. Obie and David L. Ohler, Attorneys at Law, Dept. of Corrections and Human Services, Helena, for defendant and respondent.
William Newton Rose (Rose) appeals a September 13, 1991 opinion and order of the Third Judicial District, Powell County, which dismissed his petition for declaratory judgment requesting that he be designated a nondangerous offender for parole eligibility purposes. We affirm.
We rephrase the issues presented on appeal as follows:
Did the District Court err when it determined that Rose could not be designated as nondangerous and therefore must serve one-half of his sentence before becoming eligible for parole under Sec. 95-2206.16, R.C.M. (1947)?
Rose was convicted by a jury of burglary in 1978. At the time he committed this offense, he was on parole. The District Court sentenced Rose to twenty-five years imprisonment and held that he was ineligible for parole "because of his (Defendant's) past criminal record and his conduct while released on parole or furlough," under Sec. 95-2206(3)(b), R.C.M. (1947).
In 1984, the Sentence Review Board amended Rose's sentence to ten years for burglary and fifteen years for being a persistent felony offender, these sentences to run consecutively, and removed his designation of being ineligible for parole.
Both the original sentence and amended sentence were silent as to whether Rose was to be designated as a nondangerous offender. Because neither sentence designated him as nondangerous, Montana Prison Warden Jack McCormick (McCormick) determined that he must serve one-half of his sentence before becoming eligible for parole under Sec. 95-2206.16, R.C.M. (1947).
In February 1991, Rose petitioned the District Court for declaratory judgment alleging that McCormick improperly designated him as a dangerous offender because he had never been charged nor sentenced as a dangerous offender. In an opinion and order dated September 13, 1991, the District Court dismissed Rose's petition holding that because Rose was convicted of two felony offenses in a five-year period, he could not be designated as nondangerous and therefore must serve one-half of his sentence before becoming eligible for parole under Sec. 95-2206.16(1)(a), R.C.M. (1947).
Thereafter, Rose filed an objection to the District Court's opinion and order. The District Court did not rule on Rose's objection. Rose then filed this appeal.
Did the District Court err when it determined that Rose could not be designated as nondangerous and therefore must serve one-half of his sentence before becoming eligible for parole under Sec. 95-2206.16, R.C.M. (1947)?
In 1978, an offender was required to serve one-half of his or her sentence less good time allowance before becoming eligible for parole. A nondangerous offender designation required an offender to serve one-fourth of his or her sentence less good time allowance before becoming eligible for parole. See Sec. 95-3214(1), R.C.M. (1947).
In 1978, Sec. 95-2206.16, R.C.M. (1947), provided in pertinent part:
(1) The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under 95-3214 if:
(a) during the 5 years preceding commission of the offense for which the offender is being sentenced, the offender was...
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