State v. Docken, 95-128

• Decision Date: 11 January 1996
• Docket Number: No. 95-128,95-128
• Citation: 274 Mont. 296,908 P.2d 213
• Parties: STATE of Montana, Plaintiff and Respondent, v. Lynn W. DOCKEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 213

908 P.2d 213

274 Mont. 296

STATE of Montana, Plaintiff and Respondent, v. Lynn W. DOCKEN, Defendant and Appellant.

No. 95-128.

Supreme Court of Montana.

Submitted on Briefs Aug. 17, 1995.

Decided Dec. 19, 1995.

Rehearing Denied Jan. 11, 1996.

[274 Mont. 297] Jeffrey T. Renz, Montana Defender Project, University of Montana Law School, Missoula, for Appellant.

Joseph P. Mazurek, Attorney General, Pat Jordan, Assistant Attorney General, Helena, Deborah Butler, Acting Jefferson County Attorney, Boulder, for Respondent.

NELSON, Justice.

On June 1, 1989, the District Court for the Fifth Judicial District, Jefferson County, sentenced defendant Lynn W. Docken (Docken) to five years imprisonment, all of which was suspended. Upon petition, the District Court revoked the suspended sentence and imposed another five-year suspended sentence. Upon a second petition, the District Court revoked the second suspended sentence and imposed a five-year prison term. Docken appeals from the judgment imposing the prison term. We affirm.

Docken raises the following issue on appeal:

Did the District Court have jurisdiction to revoke Docken's five-year suspended sentence and impose a second five-year suspended sentence?

BACKGROUND

On February 8, 1989, the State charged Docken with one count of forgery and, alternatively, with one count of forgery through common scheme. The District Court sentenced Docken to five years imprisonment for forgery through common scheme and suspended her sentence under certain conditions.

Approximately four years later, the State petitioned to revoke Docken's suspended sentence for probation violations including possession of a firearm, failure to pay fines, misdemeanor offenses, and responding violently to law enforcement officers. Docken admitted the allegations of the petition. Concerned about the well-being of Docken's child, the probation officer recommended probation. The District Court revoked Docken's suspended sentence, stated that she was not to be given credit for time served, and imposed the original five-year suspended sentence.

Two and one-half months later, the State again petitioned to revoke Docken's suspended sentence, alleging violations of her probation for use of unlawful drugs, possession of alcoholic beverages, failure to make restitution, and failure to maintain employment. The District Court revoked Docken's second suspended sentence, did not allow credit for her time already spent on probation, and ordered her imprisoned at the Women's Correctional Facility for five years. Docken appeals the District Court's revocation of her suspended sentence and her sentence of imprisonment for five years.

DISCUSSION

Did the District Court have jurisdiction to revoke Docken's five-year suspended sentence and impose a second five-year suspended sentence?

Section 46-18-203(1), MCA, gives the sentencing judge the discretion to revoke a suspended sentence. State v. Ottwell (1989), 240 Mont. 376, 377, 784 P.2d 402, 403. We will not overturn "a District Court's revocation of a suspended or deferred sentence absent a showing that the court abused that discretion." State v. Stangeland (1988), 233 Mont. 230, 234, 758 P.2d 776, 778 (citing State v. Robinson (1980), 190 Mont. 145, 149, 619 P.2d 813, 815). However, where, as here, the issue involves the existence of the court's jurisdiction to exercise the discretion conferred by the statute, our review is plenary.

Docken's arguments are two-fold. She claims that the District Court did not have jurisdiction to impose a suspended sentence and then revoke it and impose a second suspended sentence. Because she argues that the District Court lacked jurisdiction to impose the second suspended sentence, Docken also claims that the subsequent revocation of the second suspended sentence and imposition of a sentence of five years in the Women's Correctional Facility is void.

Docken relies on our decision in State v. Downing (1979), 181 Mont. 242, 593 P.2d 43, to assert that the District Court lacked jurisdiction to revoke her suspended 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 the suspended sentence and retain jurisdiction.

In Downing the defendant pleaded guilty to burglary of a motor vehicle, a felony, and was sentenced to three years imprisonment, suspended on various conditions. Two and one-half years later, on petition of the county attorney, the district court revoked the defendant's suspended sentence and entered another judgment whereby Downing was sentenced to spend sixty days in the county jail and thirty-four months on suspended sentence status. Over a year and a half later (after the defendant had served his sixty days) the county attorney filed a petition to revoke the suspended portion of the defendant's sentence. The district court denied the defendant's motion to dismiss the petition and, granting the petition, ordered him to serve the remaining thirty-four months of his suspended sentence. Downing, 593 P.2d at 44.

On appeal, Downing conceded that the district court had the power to revoke his suspended sentence and order him to serve a three-year term in prison. However, he argued that the district court did not have the statutory authority to revoke his suspended sentence and then modify the original sentence. Downing, 593 P.2d at 44. We noted that "[o]nce a valid sentence is imposed, the court lacks jurisdiction to vacate or modify it unless specifically authorized by statute." Downing, 593 P.2d at 44.

Section 95-2206(6), RCM (1947), the statute in effect at the time the crime was committed, provided that any judge who has suspended the execution of a sentence may:

revoke such suspension or impose sentence and order such person committed, or may, in his discretion, order the prisoner placed under the jurisdiction of the state board of pardons as provided by law, or retain such jurisdiction with this court.

We determined that this section allowed the sentencing court three mutually exclusive alternatives in dealing with a defendant who has violated the conditions of probation. We stated that the sentencing court may " '... revoke such suspension ... and order such person committed ... [or] retain such jurisdiction with this court.' " Downing, 593 P.2d at 45.

We concluded that, on the first petition to revoke, the court exercised the first alternative under the statute, i.e., to revoke the suspended sentence and order the defendant committed. We determined that the court erred, however, in going beyond simply revoking Downing's suspended sentence and committing him by instead requiring him to serve sixty days in the county jail and another thirty-four months on suspended sentence. We held that there was no statutory authority for the district court to grant the county attorney's second petition to revoke Downing's suspended sentence and that the district court no longer had jurisdiction to impose a second sentence. Downing, 593 P.2d at 45.

Notwithstanding Downing and without reference to our decision in that case, we subsequently held that a district court had jurisdiction to revoke a suspended sentence and impose a term of incarceration plus a second suspended sentence when the length of the original sentence remained the same. Speldrich, 794 P.2d at 340 (remanding for the district court to state its reasons for allowing or rejecting elapsed time as credit against the sentence).

In Speldrich, the defendant was found guilty of aggravated assault, a felony, and was sentenced to five years in the Montana State Prison, suspended on conditions. Over four years later, on petition, the district court revoked and vacated the suspended sentence and ordered the defendant to serve five years in prison, two of those years suspended on conditions. Speldrich, 794 P.2d at 339.

In reviewing the defendant's petition for writ of habeas corpus, we stated our concern as being 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." Speldrich, 794 P.2d at 340. After reviewing "relevant statutory and case law" we concluded, however, that "the District Court had jurisdiction to revoke the suspended sentence and to impose the original sentence of five years with two years suspended." Speldrich, 794 P.2d at 340.

While it might be argued that in Downing we focused on the district court's modification of the defendant's original sentence and that in Speldrich we upheld the district court's imposition of a second suspended sentence because the original sentence was not altered, a careful reading of both cases reveals that such an argument is semantics. In Downing, the court revoked the original thirty-six month suspended sentence and then imposed sixty days of incarceration and thirty-four months suspended; in Speldrich, the court revoked the original five years suspended sentence and imposed three years incarceration and two years suspended. In neither case was the length of the original sentence modified; in both cases the first revocation of suspension was followed by a combination of incarceration and suspension. Finally, notwithstanding that the pertinent language in statutes in effect when each case was decided--s 95-2206(6), RCM 1947 (Downing ) and § 46-18-203(1), MCA (Speldrich )--is virtually the same, the results of the two cases are irreconcilable. Under such circumstances, it is again appropriate that we examine the language of the statute.

In reviewing the District Court's jurisdiction in this case we look to § 46-18-203(1) (1987), MCA, because it was the statute in effect at the time the crime was committed. See State v. Azure (1978), 179 Mont....