State v. Martinez, DA 07-0083.

• Decision Date: 02 July 2008
• Docket Number: No. DA 07-0083.,DA 07-0083.
• Citation: 188 P.3d 1034,344 Mont. 394,2008 MT 233
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jose MARTINEZ, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

188 P.3d 1034

2008 MT 233

344 Mont. 394

STATE of Montana, Plaintiff and Appellee, v. Jose MARTINEZ, Jr., Defendant and Appellant.

No. DA 07-0083.

Supreme Court of Montana.

Submitted on Briefs April 30, 2008.

Decided July 2, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender, David Avery, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney, Mark Murphy, Deputy County Attorney, Billings, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Jose Martinez, Jr. (Martinez) appeals the revocation of his suspended sentence in the Thirteenth Judicial District, Yellowstone County. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On or about April 4, 2003, Martinez led police officers on a high-speed chase through Yellowstone County. Martinez was subsequently arrested and on September 13, 2003, pled guilty to one count of criminal endangerment, a felony in violation of § 45-5-207, MCA (2001). On March 8, 2005, Martinez was given a seven year suspended sentence, subject to twenty-five conditions, and assigned to the standard rules and regulations of the Adult Probation and Parole Bureau of the Department of Corrections.

¶ 3 Of the standard conditions imposed upon Martinez, only the following are relevant to the current appeal: Condition No. 1, which required Martinez to notify his probation/parole officer if he changed his residence; Condition No. 2, which prohibited Martinez from traveling outside of Yellowstone, Carbon, Stillwater, Big Horn, Golden Valley, and Musselshell counties without obtaining written permission from his probation/parole officer; Condition No. 4, which required Martinez to personally report to his probation/parole officer as directed and submit monthly written reports; Condition No. 6, which required Martinez to obtain permission from his probation/parole officer before financing or purchasing a vehicle, property, or engaging in a business; Condition No. 8, which required Martinez to comply with all city, county, state, and federal laws, conduct himself as a good citizen, and report any arrests or contacts with law enforcement within 72 hours of their occurrence; and Condition No. 10, which required Martinez to pay supervision fees under § 46-23-1031, MCA.

¶ 4 Martinez violated the terms of his probation on numerous occasions. On May 11, 2005, probation officer Paul Wild (Wild) conducted a home visit to Martinez' residence, and was informed he had moved. On May 13, 2005, Martinez reported to Wild that he had moved to a new address, although he had failed to obtain prior permission to do so.

¶ 5 On July 29, 2005, Martinez reported to his supervising officer that he had received a ticket for driving without a license and having no insurance. He was advised that a second offense would result in an intervention hearing. Additionally, between August and November of 2005, Martinez failed to report to his probation officer or submit written reports as required under Condition No. 4. On February 28, 2006, Martinez reported to his probation officer that he had received a second citation for driving without a license on February 17, 2006.

¶ 6 On March 3, 2006, an intervention hearing was held based on his traffic citations, per § 46-23-1015, MCA. Under this statute, a probation officer "who reasonably believes that a probationer has violated a probation condition, may initiate an informal probation violation intervention hearing to gain the probationer's compliance with the conditions of probation without a formal revocation hearing under 46-18-203." Section 46-23-1015(1), MCA. If a hearings officer determines by a preponderance of the evidence that the probationer has violated the conditions of his probation, he or she may order appropriate sanctions, including requiring the probationer to serve up to thirty days in jail. Section 46-23-1015(2) and (3), MCA. After Martinez' hearing, an administrative hearings officer ordered a total of six sanctions for Martinez based on the violation of his probation conditions.

¶ 7 On March 23, 2006, Martinez' probation officer Lisa Hjelmstad (Hjelmstad) received a report that Martinez was violating the terms of a travel permit issued to him. On April 25, 2006, Martinez acknowledged to Hjelmstad that he had done so, thus violating the terms of Condition No. 2. In February, April, and May of 2006, Martinez failed to report or submit reports to his probation officer as required under Condition No. 4. In May 2006, Hjelmstad learned that Martinez had purchased a vehicle without receiving prior permission from his probation officer, in violation of Condition No. 6. Additionally, between November 2005 and June 2006, Martinez failed to pay his monthly rent and utilities. On March 30 and April 7, 2006, Hjelmstad received a report that Martinez was continuing to drive without a license. On May 4, 2006, Martinez was arrested for driving without a license and jailed for three days. On May 9, 2006, a second intervention hearing was held. At the conclusion of this hearing, an administrative hearings officer imposed a total of five sanctions on Martinez.

¶ 8 On May 19, 2006, Martinez was searched during an arrest and was found to be carrying a concealed switchblade knife on his person, in violation of Condition No. 5. On June 5, 2006, Hjelmstad received a report that Martinez had recently been observed driving a car. On June 6, 2006, Martinez was confronted with these allegations and admitted to Hjelmstad that the vehicle he had been driving was taken from its owner without permission. At that time, he was jailed again for three days.

¶ 9 On June 9, 2006, a third intervention hearing was held concerning Martinez' violations of Conditions 5, 8, and 10, based upon his various driving offenses after the second intervention hearing, his possession of a concealed weapon, his failure to pay rent, and his failure to pay supervision and court fees. At the conclusion of that hearing, an administrative hearings officer imposed a total of seven sanctions on Martinez, including a thirty day jail sanction.

¶ 10 On August 2, 2006, Martinez was released from federal prison and sentenced to thirty-four months of supervised release by federal authorities, for a federal conviction of unlawful possession of a firearm. On August 7, 2006, Martinez reported to Hjelmstad that he was living at the Montana Rescue Mission (Mission). On August 9, 2006, Hjelmstad was notified by Martinez' federal probation officer that Martinez was not in fact staying at that location. On August 10, 2006, Martinez reported again to Hjelmstad that he was staying at the Mission. That same day, Hjelmstad received a report that Martinez was simply checking into the Mission every night and then leaving. Hjelmstad confirmed this with the staff at the Mission, and then confronted Martinez about this allegation on August 15, 2006. Martinez admitted that he had not been staying at the Mission, but was instead staying at another person's home. According to Hjelmstad, Martinez acknowledged that he had been dishonest in concealing this information.

¶ 11 On August 25, 2006, Hjelmstad filed a report violation with the District Court describing Martinez' multiple violations and the three interventions. In the report, Hjelmstad recommended Martinez be brought before the District Court and have his suspended sentence revoked due to his multiple violations. On August 28, 2006, the State filed a petition with the District Court to revoke Martinez' suspended sentence. A hearing was held by the District Court on February 5, 2007. Prior to the hearing, Martinez had filed a motion in limine, seeking to exclude from the District Court's consideration any of the violations for which Martinez had already received interventions. He sought to limit the District Court to considering only the August 2006 violations concerning his dishonest reporting that he was living at the Mission. The District Court denied the motion from the bench, and proceeded with the hearing.

¶ 12 At the revocation hearing, the District Court heard testimony from Hjelmstad and Wild concerning Martinez' repeated violations of his probation conditions. At the conclusion of the hearing, the District Court concluded there were substantial violations of the probation conditions justifying a disposition hearing and ordered Martinez returned to jail. A disposition hearing was held on March 5, 2007. At the conclusion of that hearing, the District Court revoked Martinez' suspended sentence, and committed Martinez to the Department of Corrections to a term of seven years, with the last three years suspended.

¶ 13 Martinez now appeals the revocation of his suspended sentence. Martinez argues the District Court erred in revoking his suspended sentence because the probation officer lacked the statutory authority to seek a revocation of his sentence for conduct addressed by the three intervention hearings, and because the revocation of his suspended sentence violated his right to be free from double jeopardy under Article II, Section 25 of the Montana Constitution. Martinez presents the following issue on appeal:

¶ 14 Did the District Court err in revoking Martinez' suspended sentence?

STANDARD OF REVIEW

¶ 15 We review a district court's decision to revoke a suspended sentence for an abuse of discretion. State v. Senn, 2003 MT 52, ¶ 19, 314 Mont. 348, ¶ 19, 66 P.3d 288, ¶ 19. A district court has statutory authority to revoke a suspended sentence under § 46-18-203(7), MCA. "Even a single violation of the terms and conditions of a suspended sentence is sufficient to support a district court's revocation of that sentence." State v. Rudolph, 2005 MT 41, ¶ 13, 326 Mont. 132, ¶ 13, 107 P.3d 496, ¶ 13.

¶ 16 The issue of whether a district court has acted within its statutory authority in...