No. 13774 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

TONY M. KNAPP, 

Defendant and Appellant. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Schulz, Davis and Warren, Dillon, Montana 

John Warren argued, Dillon, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, F4ontana 

Daniel Kernmis argued, Missoula, Montana 

W. G. Gilbert, 111, argued, County Attorney, Dillon, 

Montana 

Submitted: September 29, 1977 

Filed: ' . . -. 

6~,--, lerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court: 

Defendant appeals from an order of the District Court, 

Beaverhead County, revoking a deferred imposition of sentence 

for failure to make regular reports to a probation officer, 

and sentencing the defendant to two concurrent 10-year terms 

in prison for two counts of robbery. 

On appeal defendant alleges the district judge abused his 

discretion when he revoked defendant's deferred imposition of 

sentence. He claims the judge was unduly influenced by public 

opinion when he revoked, that he mistook the defendant for another defendant being sentenced the same day in the same court, 

that the judge misunderstood the offenses involved in the 

defendant's own case, and that he based his decision on insufficient evidence. 

Because of the apparent confusion as to the crimes involved, 

which confusion may have existed before the revocation order, 

we are compelled to set aside the revocation and sentencing. 

We find no merit in defendant's other allegations of abuse of 

discretion. 

Defendant was charged with two counts of robbery and one 

count of burglary by Information filed March 13, 1975. He pled 

guilty to the two robbery counts on arraignment May 20, 1975. 

The court dismissed the burglary count on motion of the county 

attorney. On June 17, 1975, the court imposed a three year 

deferred imposition of sentence on both counts of robbery. As 

a condition of the deferred imposition, the court required defendant to abide by the rules and regulation~ of the State Board 

of Pardons. One of the rules required defendant to make monthly 

reports to a parole officer. 
Defendant reported regularly to a parole officer from 

June 17, 1975 to June 15, 1976, but then failed to report for 

the next four months, at which point the probation department 

issued a report of violation .and issued an arrest warrant. 

Defendant was arrested February 28, 1977, and appeared with 

counsel March 10, 1977, at a hearing on the state's motion to 

revoke the defendant's deferred imposition of sentence. The 

probation officer testified to the failure to make monthly 

reports and his violation report was admitted in evidence. Defendant did not explain his failure to report. 

After granting the motion to revoke, the district judge 

commented that he was "subject to untold criticism" for his 

original decision to defer the defendant' s imposition of sentence. 

Although he commented on the two counts of robbery before he 

revoked the deferred sentence, almost immediately after the 

order of revocation he sentenced defendant to six months in 

jail and a $500 fine for misdemeanor theft, and 10 years in 

prison for felony theft. Counsel for defendant pointed out 

to the judge that the offenses to which the defendant had pled 

guilty were two counts of robbery. At that point the judge 

reexamined the Information charging the defendant, and sentenced 

him to 10 years on felony theft and 10 years on burglary. Counsel 

for defendant again corrected the judge as to the offenses involved, and the judge imposed a sentence of 10 years in prison 

on each count of robbery, the terms to run concurrently. 

We do not agree with defendant's contention that the judge 

was unduly influenced by public opinion. His comment that he had 

been "subjected to untold criticism" by imposing the original 
sentence was made in the permissible context that the judge 

originally had conf idence in defendant but defendant had 

not upheld that; confidence. Such comment is not necessarily 

an indication of passion or prejudice as defendant asserts. 

In Commonwealth ex rel. Hendrickson v. Myers, 182 Pa.Super. 

169, 126 A.2d 485, 488 (1956), the reviewing court stated 

in a similar situation: 

'"Judge ~oyer's remarks * * * were characteristically 

phrased in terms of almost personal concern that 

relator had not seen fit to profit by the prior consideration given him by the juvenile court probation. 

We cannot believe that there was any element of * * * 

or unfairness present in his mind. It1 

The same is true in the instant case. Here, the trial judge 

as much as stated he had confidence in defendant and compassion for his wife and child, but defendant did not uphold 

his confidence. 

Furthermore, the evidence clearly showed a violation of 

the probation conditions. Defendant admitted he agreed to 

follow the rules and regulations of the parole board, one of 

which required regular reports to a probation officer. Montana 

Administrative Code 55 20-3.10(18)-S10150; 20-3.10(6)-S10060 

(1) (f) . Section 95-3305, R.C.M. 1947, provides that failure to 

abide by a condition of probation is grounds for revocation of 

probation. A failure to report is sufficient grounds for 

revocation. People v. McCaster, 19 111.App.3d 824, 313 N.E.2d 

308,309 (1974); Moore v. State, 0kla.Cr. 1971, 489 P.2d 1359, 

1360. 

While revoking solely m that ground should be sparingly 

used, here there was an 8 month period between defendant's 

failure to report and ultimate arrest. Moreover, at the hearing 
he did not explain his failure to report, nor his conduct 

during those 8 months. One of the reasons for requiring a 

report is to have at least some idea of what defendant had been 

doing during the interim period. The probation office had no 

idea. In fact, it did not even know where he was during that 

time. Section 95-2206(1), R.C.M. 1947, gives the court discretion 

to revoke a deferred sentence and we cannot say that discretion 

was abused under the above facts. 

Even though a district court has the discretionary power 

to revoke a deferred sentence, that discretion must be exercised 

in such manner that the sentencing judge knows who the defendant 

is and the charges upon which the state is seeking to have a 

sentence imposed. In the present case we cannot say with any 

certainty that the district judge before he revoked the deferred 

sentence, knew defendant had pled guilty only to two counts of 

robbery. 

Here, immediately after the judge revoked the deferred 

sentence, he sentenced the defendant for misdemeanor theft and 

felony theft. For misdemeanor theft he sentenced defendant to 

the maximum, 6 months in the county jail and a $500 fine. For 

felony theft he sentenced defendant to 10 years in prison. 

Defendant was never convicted of misdemeanor theft. A charge of 

felony theft, filed along with the robbery charges, was dismissed. 

It was only after a prolonged discussion between defense counsel, 

the prosecutor, and the judge that the judge realized the only 

charges before the court were 2 counts of robbery. Defendant 

was then sentenced to 10 years on each count of robbery, the 

sentences to run concurrently. 

-5- 
Although the record does not reveal what was in the 

judge's mind before he revoked the deferred sentence, we 

can only speculate as to whether his mistaken impression 

that defendant had been convicted of felony theft and misdemeanor theft influenced his decision to revoke the deferred 

sentence. Since defendant had been convicted of neither, 

the order of revocation, and consequently, the sentencing, 

must be set aside. 

Incorrect or misunderstood information regarding a defendant may be grounds for vacating a sentence imposed upon 

him on the basis of that information. Townsend v. Burke, 334 

U.S. 736, 68 S.Ct. 1252, 92 L ed 1690,1693 (1948); United 

States ex rel. Jackson v. Myers, 374 F.2d 707 (3rd Cir. 1967); 

United States v. Weston, 448 F.2d 626 (9th Cir. 1971) ; United 

States v. Espinoza, 481 F.2d 553 (5th Cir. 1973); State v. 

Gowin, 97 Idaho 146, 540 P.2d 808*(1975). In Townsend the 

sentencing court considered two dismissed charges against the 

defendant and two charges of which the defendant had been acquitted. 

On setting aside the sentence and remanding for resentencing, 

the United States Supreme Court stated: 

"* * * We are not at liberty to assume that items 

given such emphasis by the sentencing court, did not 

influence the sentence which the prisoner is now serving. 

"We believe that on the record before us, it is 

evident that this uncounseled defendant was either 

overreached by the prosecution's submission of misinformation to the court or was prejudiced by the 

court's own misreading of the record. * * * Consequently * * * this prisoner was sentenced on the 

basis of assumptions concerning his criminal record 

which were materially untrue. Such a result, whether 

caused by carelessness or design, is inconsistent with 

due process of law, and such a conviction cannot stand." 

92 L ed 1693." 
We recognize that counsel was not present in Townsend, but 

was present in the instant case, and the initial hearing in 

this case was a revocation hearing, as opposed to a sentencing 

hearing. However, not much could be done here by counsel to 

correct an erroneous impression in the judge's mind that could 

have existed before his revocation order. The information did 

not come out until after the revocation order. Surely a defendant can be prejudiced as much by mistaken assumptions 

concerning his criminal background when a deferred sentence is 

revoked, as he can when he is sentenced, In United States v. 

Weston, supra, the court stated: 

"In Townsend v. Burke * * * the Supreme Court 

made it clear that a sentence cannot be predicated 

on false information. * * * A rational penal 

system must have some concern for the probable 

accuracy of the informational imputs in the sentencing process ." 448 F. 2d 634. 

In Ryan v. Crist, Mont . , 563 P.2d 1145, 34 St,Rep. 

342 (1977), this Court held the sentencing court to rigorous 

standards with regard to the use of information before the 

court in a presentence report. Rigorous standards are equally 

as important when the trial court is passing upon the state's 

motion to revoke a deferred or suspended sentence. We hold 

the trial judge must have, and the record must reflect that 

he has, substantially correct information concerning the defendant before he can affect a defendant's substantial rights 

by entering an order of revocation. 

The order of revocation and sentence is set aside and 

the cause is remanded for further hearing on the state's petition 

to revoke. 
We Concur:. 

* -L'- 6 :A ,.; $ ,'. 

Chief Mtice Y 

Justices.