State v. Voegele, 89-632
| Decision Date | 07 June 1990 |
| Docket Number | No. 89-632,89-632 |
| Citation | 793 P.2d 832,243 Mont. 222 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Walter John VOEGELE, Jr., Defendant and Appellant. |
| Court | Montana Supreme Court |
Byron W. Boggs, Missoula, for defendant and appellant.
Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Robert L. Deschamps III, County Atty., Betty Wing, Deputy County Atty., Missoula, for plaintiff and respondent.
Walter John Voegele, Jr., appeals the judgment of the District Court for the Fourth Judicial District, Missoula County, revoking his suspended prison sentence. We reverse.
The issue is whether the imposition of sentence on August 24, 1989, was void for lack of jurisdiction.
In August 1987, Voegele pled guilty to third offense DUI and operating a motor vehicle while his license was suspended or revoked. On September 24, 1987, he was sentenced to serve one year in jail on the first count, with credit given for one day of jail time previously served, and six months in jail on the second count. The sentences were to run consecutively. The balances of the sentences not served were suspended on conditions including parole, abstention from alcohol, completion of alcobol counseling, payment of a $750 fine, and spending sixty days in jail, to be arranged to occur primarily on weekends.
On March 24, 1989, the Missoula County Attorney's office petitioned for revocation of Voegele's probation and for imposition of sentence. Voegele and his attorney made no objection to the petition and on April 20, 1989, Voegele admitted to violations of his probation including failing to do community service in lieu of jail time and failing to meet with his probation officer. On August 24, 1989, the District Court sentenced Voegele to sixty days in jail with credit given for time already served. The sentence has been stayed pending this appeal.
Section 46-18-203(2), MCA, provides:
A petition seeking revocation of a suspended sentence ... must be filed with the sentencing court during the period of suspension.... Expiration of the period of suspension ... after the petition is filed does not deprive the court of jurisdiction to rule on the petition.
Voegele's appellate counsel contends that because Voegele's suspended sentence had expired when the petition to revoke was filed, the District Court no longer had jurisdiction over this matter. Voegele's suspended sentence on Count I began on September 24, 1987, and expired one year less one day later, on September 22, 1988. His suspended sentence on Count II began on September 23, 1988, and expired on March 22, 1989. The revocation petition was not filed until two days later, March 24, 1989.
The State counters that absent objection below, Voegele is barred from now challenging the court's jurisdiction. Section 46-20-701(2), MCA, states:
... No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
(c) material and...
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...existence of common law plain error review in the face of the restrictive requirements of § 46-20-701(2), MCA. In State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832, the defendant pleaded guilty to his third offense DUI. The Missoula County Attorney's office petitioned for revocation of t......
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State v. Arlington
...to this claim. Moreover, the "plain error" doctrine is invoked only in rare cases to prevent manifest injustice. State v. Voegele (1990), 243 Mont. 222, 224, 793 P.2d 832, 834. In this case, the prosecutor did not state that there is a duty to retreat in Montana; she merely questioned wheth......
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...assault is not a lesser included offense of sexual intercourse without consent. Furthermore, unlike cases such as State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832, the parties to this case have not raised or argued the plain error doctrine, in either its statutory or judicially-created ......
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State v. Hembd, 91-314
...this plain error doctrine is invoked only in extraordinary circumstances when it is necessary to ensure a fair trial. State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832. The record herein does not contain any extraordinary circumstances calling the plain error doctrine into play. Therefor......