State v. Drader, Cr. N
Decision Date | 06 December 1988 |
Docket Number | Cr. N |
Citation | 432 N.W.2d 553 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Terrance DRADER, Defendant and Appellant. o. 880085. |
Court | North Dakota Supreme Court |
Lyle Witham, State's Attorney, Towner, for plaintiff and appellee.
Swain Benson, Benson Law Office, Bottineau, for defendant and appellant.
This is an appeal from an order revoking probation and imposition of a suspended sentence and sentencing Terrance Drader to the Penitentiary. Because we conclude that the trial court erred in revoking probation, the order is reversed.
On January 7, 1985, Terrance Drader was sentenced to 15 years' hard labor at the North Dakota State Penitentiary. 1 The trial court ordered that upon service of five years, the remaining ten years of the sentence was to be suspended upon certain conditions. The sentence provisions relevant to this appeal are:
Drader served his five-year sentence 2 at the Penitentiary and was released on probation on February 19, 1988. The day before Drader was released the State requested the trial court to clarify its sentence and revoke Drader's probation. A hearing was held on March 16, 1988, and the trial court found that Drader violated his suspended-sentence conditions; it therefore revoked the suspension and ordered Drader confined to the Penitentiary for the remainder of the 15-year sentence.
On appeal Drader argues that the first condition of release relates only to the five years imposed and is only a condition of parole and not probation; that is, the sentence mandated that he would have to serve the full five years if he did not complete the sex-offender program, but if he did complete the program he could get out early on parole. Therefore, he asserts, he has fulfilled the first condition by serving the full five years imposed and should be released on probation subject to the remaining conditions. He also argues that if this court determines that the language of the sentence is ambiguous it should be construed in favor of the defendant.
The State contends that completion of the sex-offender program was a condition of probation and, because Drader did not complete the program, the suspended sentence was correctly revoked.
When revocation of probation is challenged, the prosecution bears the burden of proving a violation by a preponderance of the evidence. Rule 32(f), N.D.R.Crim.P. Our standard of review of a probation revocation encompasses a two-step analysis in which we first review the trial court's factual determination that the defendant violated the terms of his probation and then we review the trial court's discretionary determination that the violation warrants revocation. State v. Saavedra, 406 N.W.2d 667 (N.D.1987). Here, however, we must first decide if the trial court 3 was correct in interpreting the original sentence to require Drader to complete the sex-offender program at the State Penitentiary as a condition of probation.
The State relies on Davidson v. Nygaard, 78 N.D. 141, 48 N.W.2d 578 (1951), and other cases which stand for the proposition that a sentence is to be construed according to the usual canons of construction in order to give effect to the intent of the sentencing court. However, none of the cases cited by the State involve conditions in the sentence that the offender must understand in order to comply therewith; rather, they concerned matters which were not dependent upon the possible interpretation of the language of the sentence by the offender. See, e.g., Davidson, supra [ ].
It is a well-settled rule of statutory construction that penal statutes should be strictly construed in favor of the accused. State v. Hogie, 424 N.W.2d 630 (N.D.1988). Likewise, we believe conditions of probation are to be strictly construed in favor of the offender, for "[t]he benefit of the doubt as to a sentence which is not certain, definite, and free from ambiguity should be given to accused, and serious uncertainty in the sentence must be resolved in favor of liberty." 24 C.J.S. Criminal Law Sec. 1585. [Footnotes omitted.] See also 21 Am.Jur.2d Criminal Law Sec. 536. Therefore, if conditions of probation are capable of two constructions, we will construe the conditions in favor of the offender. 4
The courts have cast interpretation of conditions of probation in terms of giving fair notice to the offender. For example, in United States v. Simmons, 812 F.2d 561 (9th Cir.1987), the trial court suspended Simmons's sentence on condition that he voluntarily commit himself to an institution for psychiatric care and treatment. Simmons was admitted to the...
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State v. Murphy
...multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment.” See also State v. Drader, 432 N.W.2d 553, 555 (N.D.1988) (holding conditions of probation are to be strictly construed in favor of the offender). Applying the rule of lenity with the......
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State v. Wardner
...quotations and citations omitted). The question is: "Was the offender given fair notice of the proscribed conduct?" State v. Drader, 432 N.W.2d 553, 555 (N.D. 1988). [¶ 24] The record is replete with admonitions to Wardner by the probation division and the district court regarding the condi......
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State v. Causer, 20030124.
...the State must prove by a preponderance of the evidence that the probationer violated the terms of his probation. State v. Drader, 432 N.W.2d 553, 554 (N.D.1988); N.D.R.Crim.P. 32(f)(2). If the trial court establishes a violation of probation, the trial court "may revoke an order suspending......
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State v. Ballensky, 980108
...and capable of being understood by the offender in order that he knows exactly what is expected of him." Id. (quoting State v. Drader, 432 N.W.2d 553, 554 (N.D.1988)). Ballensky's condition of probation that he "not violate any Federal, State, County, or Municipal criminal law or ordinance ......