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IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 01-775 

2001 MT 259 

______________ 

OPINION AND ORDER

JULIAN LOUIS GONZALES, 

Petitioner, 

v. 

MIKE MAHONEY, Warden of Montana

State Prison; JUDICIAL DISTRICT COURT;

and THE STATE OF MONTANA, 

Respondents.

______________ 

¶1 Julian Louis Gonzales has filed a petition for writ of habeas corpus asserting that his 

detention on a probation revocation warrant violates double jeopardy protections and § 46-

23-1012, MCA (2001). On November 2, 2001, the Court granted Gonzales' motion to 

proceed in forma pauperis, and ordered the Respondents to file a response, which has been 

filed. Respondents' supplemental response to the petition has also been filed.

¶2 According to his petition, Gonzales received five suspended sentences for offenses he 

committed between 1996 and 1998. In 2000, Gonzales was arrested for probation 

violations pursuant to a bench warrant. He was not afforded a hearing within 36 hours of 

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his arrest, as required by § 46-23-1012(4), MCA (1999). Gonzales' probation was then 

revoked, and he was sentenced to various terms of incarceration at the Montana State 

Prison. 

¶3 Respondents acknowledge that Gonzales' revocation in 2000 was void pursuant to State 

v. Goebel, 2001 MT 73, 305 Mont. 53, 31 P.3d 335, and State v. Giddings, 2001 MT 76, 

305 Mont. 74, 29 P.3d 475. Following this Court's order denying rehearing in State v. 

Goebel and State v. Giddings, 2001 MT 155, 306 Mont. 83, 31 P.3d 340, probation 

revocation proceedings in Gonzales' five cases were reinitiated. Three bench warrants 

were served upon Gonzales on October 11, 2001, and two more on October 22, 2001. 

Gonzales was transferred from Montana State Prison to the Great Falls Regional Prison on 

November 27, 2001, in anticipation of further revocation proceedings, and a hearing on all 

five causes has been set for December 13, 2001.

¶4 Gonzales asserts that he has not been arraigned, had a hearing or otherwise made any 

court appearance since he was served with the new warrant. He asserts that the State and 

District Court intend to conduct another revocation hearing on the same allegations which 

were the basis of the original revocation proceeding, which he contends violates the 

double jeopardy provisions of the Montana Constitution. Further, he contends that the 

District Court is without jurisdiction to conduct the revocation proceeding because the 

provisions of § 46-23-1012, MCA (2001), have not been complied with.

¶5 In response to Gonzales' double jeopardy claim, Respondents offer that "[c]ontrary to 

Petitioner's argument, this Court in Giddings specifically authorized the State to proceed 

with a new revocation proceeding, and to hold inmates at a state facility pursuant to a 

bench warrant until the Petitioner was transported for further proceeding," and that, 

therefore, Petitioner's incarceration is legal.

¶6 In State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394, a petition to revoke Oppelt's 

probationary sentence was first dismissed, then refiled based upon the same factual 

allegations. Oppelt challenged the second petition, contending it subjected him to double 

jeopardy under both the United States and Montana Constitutions. First, the Court 

discussed the applicability of double jeopardy provisions to sentence revocation 

proceedings generally:

Defendant contends that revocation of the suspended sentence enhances his 

punishment and thus subjects him to double jeopardy. We disagree. Even though a 

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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. . . . 

. . .

"[R]evocation 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.' [Citations 

omitted.] The defendant's subsequent conduct, not his original offense, forms the 

basis of revocation and reinstates the original sentence. Petitioner is not being 

punished for the same offense." State v. Ratzlaff, 564 P.2d at 1316. See also Paul v. 

State (Alaska 1977), 560 P.2d 754; 22 C.J.S. Criminal Law §§ 239, p. 623. 

Oppelt, 184 Mont. at 51-53, 601 P.2d at 396-97. The Court then addressed the double 

jeopardy implications of the second revocation petition filed against Oppelt: 

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. 

. . . 

"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 P.2d 385. We recognize there may be a limit on how many times the same 

operative facts may be used as a basis for a petition to revoke. However, we do not 

reach the issue of the effect of a dismissal on the merits on a second petition based 

on the same facts. [Citations omitted.] 

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Oppelt, 184 Mont. at 53-54, 601 P.2d at 397-98. 

¶7 The question left open by the Oppelt Court-whether the facts alleged in a revocation 

petition which is dismissed on its merits can be the basis of a second petition to revoke-is 

again not at issue here. The first revocation petition filed against Gonzales was voided 

under our holding in Giddings without a determination regarding the merits of that 

petition. Thus, pursuant to Oppelt, the State's second revocation petition against Gonzales 

alleging the same facts does not violate the prohibition against double jeopardy under the 

Montana Constitution.

¶8 In the order denying rehearing in Goebel and Giddings, we held that the State must 

"proceed anew as if no District Court proceedings had occurred." Goebel and Giddings, 

¶ 30. Moreover, we held that to proceed anew, the State and District Court must follow the 

procedure outlined in § 46-23-1012, MCA (2001). Gonzales alleges that this statutory 

procedure has not been followed. He asserts that he has not appeared before a magistrate 

to set bail, pursuant to § 46-23-1012(3)(c), MCA, nor had an intervention hearing pursuant 

to § 46-23-1012(3)(b), MCA, or a revocation hearing under § 46-23-1012(5), MCA, which 

references the procedure set forth in § 46-18-203, MCA. Thus, Gonzales contends his 

incarceration is unlawful.

¶9 Respondents offer that Gonzales' reading of the statutes at issue is incorrect. They 

explain that § 46-23-1012, MCA, authorizes two distinct methods of commencing 

revocation proceedings, including a formal proceeding outlined in § 46-23-1012(1), MCA, 

and § 46-18-203, MCA, and an abbreviated proceeding initiated by detention by the 

probation and parole office, known as the probation violator prison diversion program, and 

set forth in § 46-23-1012(3), (4) and (5), MCA. A diversion revocation proceeding 

initiated by a probation and parole officer under these provisions may be converted to a 

formal revocation proceeding pursuant to §46-23-1012(5), MCA. 

¶10 Respondents argue that the time requirements and procedures which Gonzales alleges 

were violated relate to the diversion revocation proceeding, not to a formal proceeding. 

Respondents explain that, pursuant to § 46-18-203(3), MCA, bail was set for Gonzales in 

the new bench warrants issued by the District Court, and the time requirement that applies 

to the hearing under a formal proceeding is set forth in § 46-18-203(4), MCA, requiring an 

offender to be brought before the court "without unnecessary delay." Respondents argue 

that the delay incurred in returning Gonzales to Cascade County and scheduling his 

appearance in the District Court was necessary in light of the 65 Cascade County 

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offenders who are being processed for new revocation appearances, and the 75 felony jury 

trials set per month in that county.

¶11 Gonzales has not asserted that the delay in his appearance before the District Court 

since service of the new bench warrants violates the "unnecessary delay" requirement of 

§ 46-18-203, MCA, and therefore, we do not reach that issue here. However, Respondents 

correctly argue that the statute contemplates dual revocation proceedings, and that a 

formal proceeding initiated pursuant to § 46-23-1012(1), MCA, and § 46-18-203, MCA, is 

not subject to the time and procedural requirements set forth in § 46-23-1012(3), (4), and 

(5), MCA. Consequently, Gonzales' claims must fail. Therefore,

IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED.

The Clerk is directed to mail copies hereof to petitioner personally and to counsel of 

record for respondent. 

DATED this 12th day of December, 2001. 

/S/ KARLA M. GRAY

/S/ JIM RICE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

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