State v. Nelson, No. 97-306
| Docket Nº | No. 97-306 |
| Citation | 966 P.2d 133, 291 Mont. 15, 1998 MT 227 |
| Case Date | September 10, 1998 |
| Court | United States State Supreme Court of Montana |
Page 133
v.
Glenn NELSON, Defendant/Appellant.
Decided Sept. 10, 1998.
Carrie L. Garber, Deputy Public Defender, Billings, for Appellant.
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana; Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, for Respondent.
NELSON, Justice.
¶1 Glenn Nelson (Nelson) appeals from the April 23, 1997 order of the Thirteenth Judicial District Court, Yellowstone County, revoking his suspended sentence. We reverse and remand for further proceedings and for entry of an order consistent with this opinion.
Background
¶2 On September 18, 1990, Nelson pleaded guilty to the offenses of sexual intercourse without consent, a felony (Count I), sexual assault, a felony (Count II), and unlawful transactions with children, a misdemeanor (Count III), in cause number DC 90-261. He also pleaded guilty to domestic abuse, a felony, in cause number DC 90-101. On December 7, 1990, as to DC 90-261, the District Court sentenced Nelson to thirty years at the Montana State Prison (MSP)
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with twenty years suspended on Count I; ten years at MSP on Count II; and six months in the county jail on Count III. As to DC 90-101, the court sentenced Nelson to five years at MSP. All sentences in both causes were ordered to run concurrently.¶3 As part of the sentencing order the court required, among other things, that Nelson not be considered for parole until he had successfully completed the sexual offender program at MSP. However, Nelson was never paroled from MSP. Rather, on April 15, 1996, he was discharged from MSP and began the suspended portion of his sentence in Hardin, Big Horn County, Montana.
¶4 On July 1, 1996, the Big Horn County Attorney filed a petition for revocation of Nelson's suspended sentence alleging that Nelson had violated and disregarded the rules and regulations of his probation. In support of his petition, the County Attorney attached and incorporated by reference a "report of violation" from Nelson's probation officer. In relevant part, this report stated:
SPECIAL COURT CONDITION # 6:
The Defendant shall not be considered for parole until he has successfully completed the sexual offender program at the Montana State Prison.
SPECIAL CONDITION # 7:
The Defendant shall, as a condition [sic] from the Montana State Prison enroll and maintain an aftercare program. He shall also continue out-patient treatment for his illness for as long as his mental health professionals or other professionals feel that it is necessary.
On 6-4-96, the Defendant met with Mike Sullivan of South Central Treatment Associates in an effort to enroll in sex offender treatment program. Mr. Sullivan entered into a contract which was signed by the Defendant outlining the conditions set forth for his treatment obligations (see attached).
One of the conditions specified by Mr. Sullivan is that the Defendant be placed on intensive supervision in the Billings area.
On 6-12-96, the Defendant's file was screened by the Intensive Supervision programs screening committee and was denied (see attached).
ADJUSTMENT TO SUPERVISION:
The Defendant failed to enter into and complete A Sex Offender program, due to his supervision denial by the Intensive Supervision program in Billings, Mt.
According to the referenced attachment to the probation officer's report, Nelson was denied admission to the Intensive Supervision Program (ISP)because his residence was not approved by the ISP screening process.
¶5 On July 22, 1996, the Yellowstone County Attorney filed an amended petition for revocation, along with an amended affidavit in support of the petition, alleging that:
Since on or before the 4th day of June, 1996, the defendant has failed to enroll in an aftercare program, failed to participate in outpatient treatment and failed to participate in sex offender treatment program.
¶6 On August 2, 1996, Nelson appeared with court-appointed counsel from the Yellowstone County Public Defender's Office. Nelson admitted that the facts alleged in the petition for revocation were true but asserted that these facts did not constitute grounds for a revocation of his suspended sentence. The State requested an evidentiary hearing and counsel discussed the necessity for submitting briefs in support of their respective positions in advance of the hearing. Accordingly, on August 6, 1996, the trial court ordered the parties to submit legal memoranda supporting their respective positions concerning whether the facts admitted to by Nelson constituted grounds for revocation of his suspended sentence. Briefs were submitted, and on October 4, 1996, the District Court entered an order denying the State's petition for revocation.
¶7 In pertinent part, the court's order provides as follows:
IT IS HEREBY ORDERED that the Petition for Revocation of the Order Suspending Sentence dated the 7th day of December, 1990, be denied upon the following additional conditions:
1. The defendant shall participate in, successfully complete and abide by the rules of the Intensive Supervision Program
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(I.S.P.), follow the contract provisions of all three phases, including independent living situation. Defendant understands that any violation of the program rules and contract can result in revocation of the suspended sentence and the defendant will face the...To continue reading
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Pena v. State, No. 03-595.
...is defined and constrained by statute." State v. Yorek, 2002 MT 74, ¶ 15, 309 Mont. 238, ¶ 15, 45 P.3d 872, ¶ 15 (citing State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ 24). Indeed, "a district court has no power to impose a sentence in the absence of specific statut......
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State v. Damon, No. 04-294.
...in the absence of specific statutory authority. State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029; State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ ¶ 68 In the case at bar, Damon's offense was committed on December 8, 2002. We have held that the law in......
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State v. Holt, No. DA 10–0060.
...MT 71, ¶ 41, 331 Mont. 471, 133 P.3d 206; State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, 112 P.3d 1001; Pena, ¶ 24; State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133. Indeed, it is well established that a court's “authority to impose a criminal sentence is defined and constra......
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State v. Micklon, No. 02-415.
...in the absence of specific statutory authority. State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029. Accord State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ 24; State v. Lenihan (1979), 184 Mont. 338, 342-43, 602 P.2d 997, ¶ 16 Here, the court's impositi......
-
Pena v. State, No. 03-595.
...is defined and constrained by statute." State v. Yorek, 2002 MT 74, ¶ 15, 309 Mont. 238, ¶ 15, 45 P.3d 872, ¶ 15 (citing State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ 24). Indeed, "a district court has no power to impose a sentence in the absence of specific statut......
-
State v. Damon, No. 04-294.
...in the absence of specific statutory authority. State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029; State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ ¶ 68 In the case at bar, Damon's offense was committed on December 8, 2002. We have held that the law in......
-
State v. Holt, No. DA 10–0060.
...MT 71, ¶ 41, 331 Mont. 471, 133 P.3d 206; State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, 112 P.3d 1001; Pena, ¶ 24; State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133. Indeed, it is well established that a court's “authority to impose a criminal sentence is defined and constra......
-
State v. Micklon, No. 02-415.
...in the absence of specific statutory authority. State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029. Accord State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ 24; State v. Lenihan (1979), 184 Mont. 338, 342-43, 602 P.2d 997, ¶ 16 Here, the court's impositi......