State v. Nelson, Cr. N

• Decision Date: 29 December 1987
• Docket Number: Cr. N
• Citation: 417 N.W.2d 814
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Larry A. NELSON, Defendant and Appellant. o. 870088.
• Court: North Dakota Supreme Court

Page 814

417 N.W.2d 814

STATE of North Dakota, Plaintiff and Appellee, v.Larry A. NELSON, Defendant and Appellant.

Cr. No. 870088.

Supreme Court of North Dakota.

Dec. 29, 1987.

Lyle R. Bopp, Sargent County State's Atty., Forman, for plaintiff and appellee.

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

VANDE WALLE, Justice.

Larry A. Nelson appealed from an order revoking the suspension of a jail sentence based upon a violation of the terms of Nelson's probation.We reverse and remand to the trial court for resentencing.

Larry Nelson pleaded guilty in the county court of Sargent County to the crime of operating a vehicle while under the influence of intoxicating liquor, in violation of Section 39-08-01, N.D.C.C.A judgment was issued by the trial court on September 3, 1986, sentencing Nelson as a first-time offender.The sentence provided that Nelson pay a fine of $250 and court costs of $100, that he be imprisoned for 30 days in the county jail, and that he submit himself "to the Southeast Human Service Center for addiction evaluation relative to [his] use of alcohol, and that [he] obey all requirements prescribed for [him] by them."The trial court then suspended 28 days of the jail sentence subject to certain conditions.One such condition was that if the court required medical or psychiatric treatment, Nelson must submit to such treatment.The judgment provided that Nelson's probation would terminate on March 3, 1987.

Subsequently Nelson underwent an addiction evaluation.The evaluator recommended that Nelson undergo inpatient treatment for alcohol addiction.Nelson refused to undergo inpatient treatment.

On March 6, 1987, the trial court issued an order to show cause why the suspended jail sentence of 28 days should not be revoked because Nelson had refused to undergo inpatient treatment.At a subsequent hearing the trial court did revoke the suspension of sentence.It is this order from which Nelson appealed.

I

Nelson first argues that the trial court lacked jurisdiction to revoke the suspension of his sentence.The basis for this argument is that the judgment provided that Nelson's probation would end on March 3, 1987, but that the proceedings to revoke the suspension were not initiated until March 6, 1987, or accomplished until March 20, 1987.Thus Nelson argues that the trial court could not revoke a probation which had already terminated.We disagree.

In Decker v. State, 209 N.W.2d 879(N.D.1973), this court considered whether a trial court lacks jurisdiction to revoke a suspension of the imposition of sentence when the petition to revoke was not filed until the period of probation established by the trial court had elapsed.We concluded that the trial court had jurisdiction,

"notwithstanding that the petition to revoke the suspension of the imposition of sentence was not filed and the order revoking the suspension was not made within the period of probation established by the court, when the action to revoke was taken with reasonable promptness and within the five-year period authorized by Section 12-53-13, N.D.C.C."209 N.W.2d at 885.

Although Decker concerned a revocation of the suspension of imposition of sentence in relation to Section 12-53-13, N.D.C.C., ¹we think that its reasoning also applies to a revocation of probation pursuant to a sentence under Sections 12.1-32-06(1)²and12-53-03, N.D.C.C.³In this case, the action to revoke Nelson's probation was taken three days after that probation ended.We believe that this is clearly an action "taken with reasonable promptness," and the trial court thus had jurisdiction to revoke Nelson's probation.

II

Nelson next argues that the trial court's sentence was erroneous in that it exceeded the punishment established in Section 39-08-01 for first-time offenders.The trial court's sentence required Nelson to pay a fine of $250 and court costs of $100, to be imprisoned for 30 days, and to submit to an addiction evaluation and to follow any requirements prescribed by the evaluator.Nelson argues that punishment for a first-time DUI offender may be only a $250 fine and an order for addiction evaluation.

Nelson bases his argument upon Section 39-08-01(4)(a), N.D.C.C.That section provides that a person convicted of driving a vehicle while under the influence of intoxicating liquor must be sentenced so that:

"For a first offense, the sentence must include both a fine of at least two hundred fifty dollars and an order for addiction evaluation by an appropriate licensed addiction treatment program."

Nelson argues that by requiring a $250 fine and an order for addiction evaluation, the Legislature intended to limit punishment solely to these two things.We disagree.

The penalties encapsulated in Section 39-08-01(4)(a) were established by the Legislature in 1983.A review of the legislative history of the section indicates that the penalties set forth were designed to be "mandatory minimum penalties."As a summary of the penalty provisions of Section 39-08-01 in the legislative history states:

"The above minimum penalties do not prevent a court from penalizing an offender with the maximum sentences allowed under the current law: 30 days in jail and a $500 fine for a 'first offender' and 1 year in jail and a $1000 fine for a 'subsequent offender.' "Senate Judiciary Committee Minutes (March 2, 1983).

Thus the punishments set forth in Section 39-08-01(4)(a) are mandatory minimum penalties and because a first-time offender is guilty of a Class B misdemeanor under Section 39-08-01(2), he may be punished in accordance with the punishments specified for a Class B misdemeanor in Section 12.1-32-01(6), N.D.C.C.--up to a $500 fine, 30 days' imprisonment, or both.Thus the trial court was not limited to sentencing the defendant to pay a fine of $250 and to undergo an addiction evaluation.

III

Finally, Nelson argues that the trial court improperly delegated its authority to sentence Nelson to an addiction evaluator.We agree.

Part of the trial court's sentence required Nelson to submit himself "to the Southeast Human Service Center for addiction evaluation relative to your use of alcohol, and that you obey all requirements prescribed for you by them."Thus the trial court required Nelson to undergo an addiction evaluation and that he follow the treatment prescribed by the addiction evaluator.In doing this the trial court delegated its authority to sentence Nelson to the addiction evaluator.This is improper.

We recently considered the issue of the propriety of a court's delegation of authority to a probation officer to set the conditions of probation for a convicted defendant in State v. Saavedra, 406 N.W.2d 667(N.D.1987).In Saavedrathe trial court ordered the defendant to obey the conditions of probation in a standard probation agreement the trial court had helped to formulate.However, certain conditions in the agreement were optional and the probation officer decided which of these were to be imposed on the defendant.We concluded that "it was error for the trial court to delegate the authority to impose the conditions of probation ..."406 N.W.2d at 673.We reached that conclusion because we determined that "It is the trial judge, and not the probation officer, who is authorized under our statutory scheme to establish conditions of probation."406 N.W.2d at 670.

In this casewe are concerned with a trial court's delegation of the authority to sentence a defendant.Our statutory scheme authorizes the trial court to determine sentences.This is readily borne out by a few examples.Rule 32(a), N.D.R.Crim.P., plainly envisions that the trial court will sentence a defendant in that it places on the trial court various duties during the sentencing process--(1) that the court determine that the defendant has had an opportunity to review a presentence report, (2) that the court afford defendant's counsel an opportunity to speak for the defendant, (3) that the court personally address the defendant and listen to any statement he...