State v. Sullivan, 81-347

Docket NºNo. 81-347
Citation642 P.2d 1008, 197 Mont. 395
Case DateFebruary 25, 1982
CourtUnited States State Supreme Court of Montana

Page 1008

642 P.2d 1008
197 Mont. 395
STATE of Montana, Plaintiff and Respondent,
v.
Anthony D. SULLIVAN, Defendant and Appellant.
No. 81-347.
Supreme Court of Montana.
Submitted on Briefs Oct. 29, 1981.
Decided Feb. 25, 1982.

[197 Mont. 396]

Page 1009

Patrick D. McGee, Butte, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Robert McCarthy, County Atty., Butte, for plaintiff and respondent.

[197 Mont. 397] SHEEHY, Justice.

Anthony D. Sullivan appeals from an order of the District Court, Second Judicial District, Silver Bow County, revoking a previously suspended sentence.

On August 20, 1975, Sullivan was charged with burglary and after his consultation with court-appointed counsel, Sullivan entered a plea of guilty to the charge on October 7, 1975.

A judgment of conviction was entered, and the District Court deferred his sentence for three years and placed Sullivan on probation.

Sullivan's record indicates that he was twice placed on probation, and his probation has been twice revoked. He has been paroled three times, and three times his parole has ended in failure. In each instance, the revocation or reimprisonment of Sullivan was due to his violation of one or the other of two conditions of his release: (1) abstention from alcohol, and (2) submission to alcohol treatment and counseling.

The following table of events gives an outline of Sullivan's record following conviction:

October 7, 1975 Defendant pled guilty to
                 charge of burglary;
                 judgment of conviction;
                 sentence deferred for
                 three years; defendant
                 on probation.
                August 19, 1977 Hearing on petition to
                 revoke deferred sentence
                 on probation violations;
                 court deferred
                 imposition of sentence
                 for additional three
                 years; defendant
                 ordered to return to
                 alcohol treatment centers
                 at Galen and Kellogg,
                 Idaho; thereafter to
                 report to probation
                 officer in Butte.
                October 18, 1977 Defendant arrested
                 for breaking into home of his
                 former wife.
                October 28, 1977 Court sentenced
                 defendant on the original
                 burglary conviction to
                 ten years in prison, with
                 five years suspended.
                 Defendant to be under
                 supervision of Butte
                 office of Board of
                 Pardons when he is not
                 in prison.
                October 2, 1978 Defendant paroled to
                 Helena.
                June 1979 Defendant returned to
                 prison on parole
                 revocation.
                February 1, 1980 Defendant paroled
                 upon condition that he
                 complete certain alcohol
                 treatment programs.
                June 18, 1980 Defendant returned to
                 prison on parole
                 revocation.
                February 24, 1981 Defendant paroled to
                 Butte area under
                 supervision of
                 parole officer.
                April 14, 1981 Defendant arrested for
                 parole violations.
                April 16, 1981 Defendant agreed to
                 admit himself to Galen
                 State Hospital for
                 alcoholic treatment; left
                 Galen next morning.
                April 20, 1981 Defendant again
                 arrested for drinking.
                April 27, 1981 Court revoked the five
                 year suspended sentence
                 and ordered defendant
                 returned to prison to
                 serve the remainder of
                 his sentence.
                

[197 Mont. 398]

Page 1010

Without belaboring the record with details, it is enough to say that over the course of his post-conviction history, [197 Mont. 399] Sullivan has shown no disposition to abide by the conditions of his deferred imposition of sentence, or of his parole as they relate to his use of alcohol.

The defendant now appeals from the court's order of April 27, 1980, revoking his suspended sentence. He raises the following issues:

1. May Sullivan's suspended sentence be revoked before he actually begins serving it?

2. May the sentencing court revoke his suspended sentence for violation of parole conditions imposed by the Board of Pardons where a suspended sentence follows a term of imprisonment?

3. May the District Court require a probationer to abstain from alcohol when the probationer is an alcoholic and is powerless to control his drinking?

4. Did Sullivan receive due process in the revocation of his probation?

5. Did the District Court lose jurisdiction to defer imposition of a sentence for an additional three years under its order of August 19, 1977?

The District Court on October 28, 1977, sentenced Sullivan to ten years imprisonment with the last five years suspended. The record is not clear as to the date when Sullivan would make the transition from parole status to probation status, that is, when the date of suspended sentence would begin. This is because the record does not clearly show the accumulation of "good time" by Sullivan during the term of his sentence. The probation officer in Butte determined that the transition date was April 16, 1981, probably influenced by our decision in Crist v. Segna (1981), Mont., 622 P.2d 1028, 38 St.Rep. 150. The Department of Institutions takes the position that the transition date was May 25, 1981. It appears therefore that Sullivan was technically on parole at the time that his suspended sentence was revoked because he had not yet passed the transition date from parole to suspended sentence time.

Section 46-18-203, MCA, authorizes the original sentencing judge who has suspended a sentence, to revoke that suspension[197 Mont. 400] "during the period of the suspended sentence." It is Sullivan's contention that the District Court is without jurisdiction to revoke the suspended sentence before the period of the suspended sentence begins.

Sullivan's contention is answered in spirit if not factually, by our decision in Matter of Ratzlaff (1977), 172 Mont. 439, 564 P.2d 1312. There the parole violation occurred before the defendant began serving his suspended sentence. In that case the defendant had been sentenced to 25 years imprisonment for robbery. The final 10 years of that sentence was later suspended. After serving approximately three years in prison, the defendant was paroled. He was later charged with violating the conditions of his parole and revocation proceedings were instituted.

At the same time a petition for the revocation of his 10-year suspended sentence was filed before the original...

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24 practice notes
  • Patuxent Inst. Bd. of Review v. Hancock, 5
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...of probation for conduct occurring after entry of order of probation but before service of probation begins); State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982) (revocation of probation for violation occurring before commencement of probation term but after imposition of sentence); Lee ......
  • State v. Parr, 26898.
    • United States
    • Supreme Court of West Virginia
    • July 7, 2000
    ...(8th Cir.1984) ("Rule 614(a) simply codifies a judge's well-established common law authority to call witnesses."); State v. Sullivan, 197 Mont. 395, 404, 642 P.2d 1008, 1012 (1982) (recognizing right of trial court to call witness); State v. Hagen, 574 N.W.2d 585, 588 (N.D.1998) (same); Sta......
  • State Of Mont. v. Haagenson, DA 09-0471.
    • United States
    • Montana United States State Supreme Court of Montana
    • May 4, 2010
    ...State filed a petition to revoke Haagenson's suspended sentence-which, as noted, he had not yet begun to serve. See State v. Sullivan, 197 Mont. 395, 400-01, 642 P.2d 1008, 1010-11 (1982) (a suspension of sentence may be revoked for acts done by the offender after sentence is imposed but be......
  • State v. Morrison, DA 06-0262.
    • United States
    • Montana United States State Supreme Court of Montana
    • January 22, 2008
    ...sentence prior to commencement of that portion of his sentence. Although acknowledging our holdings to the contrary in State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), and. Matter of Ratzlaff, 172 Mont. 439, 564 P.2d 1312 (1977), Morrison notes the language of § 46-18-203(2), MCA, re......
  • Request a trial to view additional results
24 cases
  • Patuxent Inst. Bd. of Review v. Hancock, No. 5
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...of probation for conduct occurring after entry of order of probation but before service of probation begins); State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982) (revocation of probation for violation occurring before commencement of probation term but after imposition of sentence); Lee ......
  • State v. Parr, No. 26898.
    • United States
    • Supreme Court of West Virginia
    • July 7, 2000
    ...(8th Cir.1984) ("Rule 614(a) simply codifies a judge's well-established common law authority to call witnesses."); State v. Sullivan, 197 Mont. 395, 404, 642 P.2d 1008, 1012 (1982) (recognizing right of trial court to call witness); State v. Hagen, 574 N.W.2d 585, 588 (N.D.1998) (same); Sta......
  • State Of Mont. v. Haagenson, No. DA 09-0471.
    • United States
    • Montana United States State Supreme Court of Montana
    • May 4, 2010
    ...State filed a petition to revoke Haagenson's suspended sentence-which, as noted, he had not yet begun to serve. See State v. Sullivan, 197 Mont. 395, 400-01, 642 P.2d 1008, 1010-11 (1982) (a suspension of sentence may be revoked for acts done by the offender after sentence is imposed but be......
  • State v. Morrison, No. DA 06-0262.
    • United States
    • January 22, 2008
    ...sentence prior to commencement of that portion of his sentence. Although acknowledging our holdings to the contrary in State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), and. Matter of Ratzlaff, 172 Mont. 439, 564 P.2d 1312 (1977), Morrison notes the language of § 46-18-203(2), MCA, re......
  • Request a trial to view additional results

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