State v. Savaria, 95-098

• Decision Date: 21 November 1995
• Docket Number: No. 95-098,95-098
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard A. SAVARIA, Defendant and Appellant.
• Court: Montana Supreme Court

Page 215

906 P.2d 215

274 Mont. 197

STATE of Montana, Plaintiff and Respondent, v. Richard A. SAVARIA, Defendant and Appellant.

No. 95-098.

Supreme Court of Montana.

Submitted on Briefs Oct. 19, 1995.

Decided Nov. 21, 1995.

William F. Hooks, Appellate Defender, Helena, for Appellant.

Joseph Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Betty Wing, Missoula County Deputy County Attorney, Missoula, for Respondent.

HUNT, Justice.

Appellant, Richard Savaria was sentenced in the Fourth Judicial District Court, Missoula County to a term of ten years in the Montana State Prison on seven counts of felony theft.

We affirm the conviction and remand for resentencing.

The issue on appeal is whether the District Court erred in failing to consider the alternatives to imprisonment at the Montana State Prison for a non-violent felony offender, pursuant to §§ 46-18-201(10) and 46-18-225, MCA.

It is undisputed that the appellant is a non-violent felony offender pursuant to the statutory definition contained in § 46-18-104(3), MCA, and the court should have considered § 46-18-201(10), MCA, which imposes certain obligations on a court sentencing such an offender:

In sentencing a non-violent offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment the court shall examine the sentencing criteria contained in § 46-18-225, MCA. If the offender is subsequently sentenced to the state prison or a women's correctional facility, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

See State v. Pence (1995), --- Mont. ----, 902 P.2d 41, 52 St.Rep. 937; State v. LaMere (1995), 272 Mont. 355, 900 P.2d 926; State v. Stevens (1993), 259 Mont. 114, 115-16, 854 P.2d 336, 337-38.

The Attorney General has filed herein a Notice of Concession, conceding that the matter should be remanded to the District Court for resentencing.

We hold that the District Court failed to properly sentence the defendant under applicable sentencing statutes.

We affirm the conviction and remand for resentencing.

NELSON, TRIEWEILER, LEAPHART and ERDMANN, JJ., concur.