State v. Garvin, Cr. N

• Decision Date: 10 February 1983
• Docket Number: Cr. N
• Citation: 329 N.W.2d 621
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Francis GARVIN, Defendant and Appellant. o. 882.
• Court: North Dakota Supreme Court

Page 621

329 N.W.2d 621

STATE of North Dakota, Plaintiff and Appellee, v. Francis GARVIN, Defendant and Appellant.

Cr. No. 882.

Supreme Court of North Dakota.

Feb. 10, 1983.

Melody R.J. Jensen, Asst. States Atty., and Robert G. Hoy, State's Atty., Fargo, for plaintiff and appellee; argued by Melody R.J. Jensen.

George E. Duis, Fargo, for defendant and appellant.

ERICKSTAD, Chief Justice.

This is an appeal by the defendant, Francis Wesley Garvin, from a modified sentence, dated July 7, 1982, by the County Court with Increased Jurisdiction of Cass County. We reverse and remand so that the original sentence may be reinstated.

The facts in this case are not in dispute and thus can be briefly summarized. Garvin was arrested for driving while under the influence of intoxicating liquor in violation of Section 39-08-01, N.D.C.C. Subsequent thereto, Garvin plead guilty to the DWI charge and voluntarily underwent treatment from October 27, 1981, through November 19, 1981, at the Chemical Dependency Unit of the North Dakota State Hospital.

The county court ultimately sentenced Garvin for this offense on February 24, 1982:

"THE COURT: Mr. Duis, I'm going to do one thing right now as a part of the sentence and we'll save you another trip out there because as a part of the sentence it is ordered that the defendant forfeit his driver's license for the rest of his natural life.

* * *

* * *

"THE COURT: And that he not drive an automobile or any motor vehicle.

* * *

* * *

"THE COURT: Whether that sentence is illegal or legal you can test, Mr. Duis, but that's part of it.

"MR. DUIS: Well, all right.

"THE COURT: That's part of his probation.

* * *

* * *

"THE COURT: All right. I'm going to do something a little bit differently. I'm going to sentence you to one year in the Cass County jail. I'm going to stay the execution of the running of that sentence for an indefinite period of time. And I'm going to sentence you to pay a fine of $1,000 and the payment of that fine can be worked out on a monthly basis if need be.

"I want you to reappear in 30 days."

On July 7, 1982, the county court modified the sentence it had imposed on February 24, 1982:

"... I'm going to continue with the modification of sentence ... and it will be three months confinement with the balance of nine suspended for a period of two years. The fine of $1,000 to continue and the driver's license to be forfeited to the State until, for life or until further order of this or some other Court of competent jurisdiction."

The issues presented by this factual situation are twofold:

(1) Whether or not the county court's modified sentence, dated July 7, 1982, constituted an increase of Garvin's original sentence; and

(2) Whether or not Garvin's sentence as modified was valid.

In order to adjudicate the questions raised on appeal, we must first analyze Garvin's original sentence. During the court proceedings on February 24, 1982, the sentencing court unequivocally stated: "... That's part of his probation ... I'm going to sentence you to one year in the Cass County jail. I'm going to stay the execution of the running of that sentence for an indefinite period of time."

In the case at bar, the facts indicate that Garvin relied upon and interpreted these statements to mean the court had suspended his sentence and placed him on probation. As a result, Garvin contends that he reappeared on a monthly basis so that the court could ascertain if he was abiding by the terms of his probation. ¹ In addition, Garvin participated in Antabuse, utilized the AA facilities, and was evaluated by Southeast Human Services in accordance with the court's request.

We are of the opinion that Garvin was correct in believing the statements in question implied that the county court intended to suspend Garvin's one-year jail sentence pursuant to Section 12-53-03, N.D.C.C. ² Consequently, taking into consideration both the sentencing court's comments and Garvin's actions in reliance thereon, we conclude that the court proceedings on February 24th should be interpreted as...