State v. Oppelt

• Decision Date: 17 October 1979
• Docket Number: No. 14289,14289
• Citation: 184 Mont. 48,601 P.2d 394,36 St.Rep. 1832
• Parties: The STATE of Montana, Plaintiff and Respondent, v. David OPPELT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 394

601 P.2d 394

184 Mont. 48

The STATE of Montana, Plaintiff and Respondent, v. David OPPELT, Defendant and Appellant.

No. 14289.

Supreme Court of Montana.

Submitted Sept. 10, 1979.

Decided Oct. 17, 1979.

James A. Lewis (argued), Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Richard A. Larson, Asst. Atty. Gen. (argued), Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant, David Oppelt, appeals from revocation of a suspended sentence by the Cascade County District Court.

In 1975, Oppelt was convicted of burglary upon entry of a guilty plea. He was given a 10 year sentence which was suspended on condition he abide by customary probation rules.

In May 1977, a jury found Oppelt guilty of aggravated assault, aggravated burglary and attempted theft. He was sentenced to 10 years in prison but released on bail pending appeal. The conviction was affirmed by this Court on June 8, 1978. State v. Oppelt (1978), Mont., 580 P.2d 110, 35 St.Rep. 727.

On October 7, 1977, a petition for revocation of the April 1975 suspended sentence was filed. It incorporated a district parole officer's report of violations which alleged that Oppelt assaulted Donna and Harold McClure; that he messed up and partially burned Donna McClure's house; that he intimidated April McClure; and that he had been seen drinking heavily. The "summary" contained on page two of the report listed the May, 1977 convictions as additional violations. Defense counsel and the county attorney each had complete copies of the report. However, page two of the report was missing from the petition filed in the District Court. As a result, the contents of that page, specifically, the convictions for aggravated burglary, aggravated assault and attempted theft were unknown to the District Judge. Likewise, defendant was not personally aware of their inclusion in the petition. Oppelt was brought before the court on October 14 and defense counsel obtained a continuance.

Defendant obtained a second continuance and on November 22, 1977, a hearing was held. In addition to a fire inspector's testimony, affidavits regarding the assault and the burning were submitted subject to a later determination of admissibility. The state offered the May 1977 convictions and defendant objected on the basis they were on appeal. The court neither admitted nor refused the evidence. Counsel were asked to, and did file briefs on the admissibility of the affidavits and the convictions. No decision was rendered on the first petition.

On February 1, 1978, another petition for revocation of the suspended sentence was filed. It incorporated a second report of violations which clearly listed the May 1977 convictions as infractions. On the same day, defendant was brought before the court without his attorney, who apparently received no notice of the hearing. The court ascertained that Oppelt did not know the first petition was in part based on the May, 1977 convictions. Defendant was informed the second petition was based on these convictions and that the first petition was dismissed. He was further advised that since his attorney was not present, the hearing was continued.

A hearing on the second petition was held on February 10, 1978. Defendant moved to quash the petition on grounds he was denied counsel when he was brought before the court on February 1 and further that he was being subjected to double jeopardy. The motion was denied. The only evidence introduced by the state were certified copies of the May 1977 convictions. They were admitted over defendant's objection.

The suspended sentence was revoked by court order on February 14, 1977, and defendant appeals. The following issues are before the Court.

1. Was defendant subjected to double jeopardy?

2. Was defendant denied his right to counsel?

3. Was defendant denied due process of law?

4. Was defendant afforded a hearing without unnecessary delay?

At the outset, we note that a suspended sentence may be revoked on the basis of a felony conviction, even though the conviction is awaiting appellate review. Roberson v. State of Connecticut (2nd Cir. 1974), 501 F.2d 305, 308; United States v. Carrion (9th Cir. 1972), 457 F.2d 808; See generally, Anno. 76 A.L.R.3d 588; State v. Radi (1978), Mont., 578 P.2d 1169, 1181, 35 St.Rep. 489, 503, holds that persistent offender status is not avoided where previous conviction is pending on appeal at the time of sentencing.

Defendant contends that revocation of the suspended sentence enhances his punishment and thus subjects him to double jeopardy. We disagree. Even though a defendant must live with the conditions of probation throughout the period of suspension and even though he must serve the entire sentence if the suspension is revoked, there is no double jeopardy. The legislature has provided:

"(1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:

" "(b) suspend execution of sentence up to the maximum sentence allowed for the particular offense. The sentencing judge may impose on the defendant any reasonable restrictions during the period of suspended sentence. Such reasonable restrictions may include: . . . (iii) conditions for probation;

" . . .

"(2) If any restrictions or conditions imposed under subsection (1)(a) or (1) (b) are violated, any elapsed time, except jail time, shall not be a credit against the sentence unless the court orders otherwise." Section 46-18-201, MCA.

Montana case law is clearly to the same effect.

"The revocation of a suspension of sentence leaves the defendant subject to execution of the original sentence, as though it had never been suspended." Matter of Ratzlaff (1977), Mont., 564 P.2d 1312, 1315, 34 St.Rep. 470, 473, citing Roberts v. United States (1943), 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; see also State ex rel. Bottomly v. District Court (1925), 73 Mont. 541, 546, 237 P.2d 525, 526.

Speaking directly to the question, we have said:

"The Fifth Amendment to the United States Constitution provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb.' This prohibition is applicable to state action under the 'due process' clause of the Fourteenth Amendment to the United States Constitution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It protects offenders from multiple punishment for the same offense. Ex parte Lange, (85 U.S. (18 Wall) 163, 21 L.Ed. 872); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354. Montana's constitutional provision is substantially similar providing that 'No person shall be again put in jeopardy for the same offense . . . ' Art. II, Section 25, 1972 Montana Constitution.

"However, revocation of suspension of a sentence does not constitute a second punishment for the same offense. A defendant under a suspended sentence lives with the knowledge that 'a fixed sentence for a definite term hangs over him.' Roberts v. United States, supra; State ex rel. Bottomly v. District Court, supra (73 Mont. 541, 237 P. 525). The defendant's subsequent conduct, not his original offense, forms the basis of revocation and reinstates the original sentence. Petitioner is not being punished twice for the same offense." State v. Ratzlaff, 564 P.2d at 1316, 34 St.Rep. at 474. See also Paul v. State (Alaska 1977), 560 P.2d 754; 22 C.J.S. Criminal Law § 239, p. 623.

Defendant's reliance on Flint v. Hocker (9th Cir. 1972), 462 F.2d 590, is misplaced. There, the court held that a probationer has the right to counsel when revocation of probation could result in the execution of the original sentence. The decision did not condemn the execution of the original sentence upon revocation.

Defendant next asserts, and we will assume, that both proceedings to revoke the suspended sentence were based on the May, 1977, convictions. His argument that this subjects him to double jeopardy fails because it ignores the basic nature of proceedings to revoke a suspended sentence.

After conviction, the decision to suspend a sentence is a "decision to forego complete denial of liberty by incarceration in favor of a judicially-supervised period of restricted liberty in the hope that the purposes of rehabilitation of defendant and the protection of the public can be achieved by the lesser deprivation of liberty." State v. Eckley (1978), 34 Or.App. 563, 579 P.2d 291, 293. In essence, the trial court retains jurisdiction over the defendant by imposing conditions on defendant's freedom to which he agrees to abide. Marutzky v. State (Okla.Cr.1973), 514 P.2d 430, 431.

The revocation hearing is not a criminal trial. Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190.

" . . . (It) is an exercise of the court's supervision over a probationer "There is no adjudication of guilt or innocence upon the court's entry of its order upon an application to revoke. The court has only made a factual determination involving the existence of a violation of the terms of the suspended sentence." Marutzky, 514 P.2d at 431. See also Petition of Meidinger, 168 Mont. at 15, 539 P.2d at 1190; State v. Ratzlaff, supra, 34 St.Rep. at 474, 564 P.2d 1316.

"Because a revocation proceeding is not a criminal adjudication, does not require proof of a criminal offense, does not impose punishment for any new offense, and is an act in the performance of the duty of judicial supervision of probationary liberty . . . the Double Jeopardy Clause . . . is (not) applicable." State v. Eckley, 579 P.2d at 293.

In this case, the first petition was dismissed without any determination on the merits. Under these circumstances and in recognition of the essence of revocation proceedings, the prohibitions against double jeopardy do not preclude the state from filing a second petition alleging the same facts. See State v. Rios (1977), 114 Ariz. 505, 562...