Speldrich v. McCormick, 90-102
| Decision Date | 07 June 1990 |
| Docket Number | No. 90-102,90-102 |
| Citation | 243 Mont. 238,794 P.2d 339 |
| Parties | Lawrence E. SPELDRICH, Petitioner, v. Jack McCORMICK, Warden, Respondent. |
| Court | Montana Supreme Court |
Lawrence E. Speldrich has filed in this cause a petition for writ of habeas corpus in which he states that he is seeking restoration of good time but is not appealing his sentence or conviction in this petition. Jack McCormick, Warden, has filed his response admitting that petitioner is in his custody at Montana State Prison in Deer Lodge, Montana, and further contending that petitioner is not entitled to a writ of habeas corpus. Counsel for Mr. McCormick contends that the Legislature has changed the Montana statutes in such a manner that there is no good time credit earned on a suspended sentence and that petitioner therefore is not entitled to any good time.
By order dated August 5, 1985, the District Court of the Seventh Judicial District for Richland County entered its judgment on plea of guilty and order suspending sentence. Petitioner was found guilty of the offense of aggravated assault, a felony and was sentenced to five years in Montana State Prison, with the further provision that all five years of the sentence were suspended upon described conditions. After an appropriate petition, by order and judgment dated December 4, 1989, the same District Court ordered that the defendant's suspended sentence of August 5, 1985 was revoked and vacated. The District Court thereupon ordered that the defendant was sentenced to five years in Montana State Prison with two years suspended upon certain conditions. The District Court stated that the reason for the sentence was because of the seriousness of the crime committed by the defendant and the violations of probation.
This Court was concerned whether there was any limitation upon the power of the District Court to reimpose the original five year sentence after completion of four and one-half years of the suspended sentence. The Attorney General of the State of Montana was ordered to respond to that question.
Having reviewed the response by the Attorney General, and relevant statutory and case law, this Court concludes that the District Court had jurisdiction to revoke the suspended sentence and to impose the original sentence of five years with two years suspended.
In the revocation and resentencing the District Court made no reference to Sec. 46-18-201, MCA, which provides:
46-18-201. Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:
(a) defer imposition of sentence, excepting sentences for driving under the influence of alcohol or drugs, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition....
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State v. Docken, 95-128
...sentence and impose a second suspended sentence. The State asserts that this Court should follow its reasoning in Speldrich v. McCormick (1990), 243 Mont. 238, 794 P.2d 339; and State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394, to hold that the District Court had the authority to reimpose......
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State v. Frazier, 99-617.
...no greater than the length of the original sentence. Docken, 274 Mont. at 302, 908 P.2d at 216. See also, Speldrich v. McCormick (1990), 243 Mont. 238, 240, 794 P.2d 339, 340, where we directed courts to expressly allow or reject elapsed time in suspension as credit against the sentence. Th......
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State v. Williams, 02-549.
...as a result of the revocation of an individual's suspended sentence. Section 46-18-201(4), MCA (1997). In Speldrich v. McCormick (1990), 243 Mont. 238, 240, 794 P.2d 339, we applied this statute and held that a district court must, upon revocation of a suspended sentence, consider the time ......