No. 14289 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID OPPELT, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

James A. Lewis, Public Defender, argued, Great Falls, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard Larson, Assistant Attorney General, argued, 

Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted: September 10, 1979 

Decided : 

Filed: ~TJ ? 1972. 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant, David Oppelt, appeals from revocation of a 

suspended sentence by the Cascade County District Court. 

In 1975, Oppelt was convicted of burglary upon entry of 

a guilty plea. He was given a 10 year sentence which was 

suspended on condition he abide by customary probation rules. 

In May 1977, a jury found Oppelt guilty of aggravated 

assault, aggravated burglary and attempted theft. He was 

sentenced to 10 years in prison but released on bail pending 

appeal. The conviction was affirmed by this Court on June 8, 

1978. State v. Oppelt (1978), Mont . , 580 P.2d 110, 

35 St.Rep. 727. 

On October 7, 1977, a petition for revocation of the 

April 1975 suspended sentence was filed. It incorporated a 

district parole officer's report of violations which alleged 

that Oppelt assaulted Donna and Harold McClure; that he 

messed up and partially burned Donna McClure's house; that he 

intimidated April McClure; and that he had been seen drinking 

heavily. The "summary" contained on page two of the report 

listed the May, 1977 convictions as additional violations. 

Defense counsel and the county attorney each had complete 

copies of the report. However, page two of the report was 

missing from the petition filed in the District Court. As a 

result, the contents of that page, specifically, the convictions 

for aggravated burglary, aggravated assault and attempted theft 

were unknown to the District Judge. Likewise, defendant was 

not personally aware of their inclusion in the petition. 

Oppelt was brought before the court on October 14 and defense 

counsel obtained a continuance. 

Defendant obtained a second continuance and on November 

22, 1977, a hearing was held. In addition to a fire inspector's 

testimony, affidavits regarding the assault and the burning 

were submitted subject to a later determination of admissibility 
The state offered the May 1977 convictions and defendant 

objected on the basis they were on appeal. The court neither 

admitted nor refused the evidence. Counsel were asked to, 

and did file briefs on the admissibility of the affidavits 

and the convictions. No decision was rendered on the first petition. 

On February 1, 1978, another petition for revocation of 

the suspended sentence was filed. It incorporated a second 

report of violations which clearly listed the May 1977 

convictions as infractions. On the same day, defendant was 

brought before the court without his attorney, who apparently 

received no notice of the hearing. The court ascertained that 

Oppelt did not know the first petition was in part based on 

the May, 1977 convictions. Defendant was informed the second 

petition was based on these convictions and that the first 

petition was dismissed. He was further advised that since 

his attorney was not present, the hearing was continued. 

A hearing on the second petition was held on February 

10, 1978. Defendant moved to quash the petition on grounds 

he was denied counsel when he was brought before the court on 

February 1 and further that he was being subjected to double 

jeopardy. The motion was denied. The only evidence introduced 

by the state were certified copies of the May 1977 convictions. 

They were admitted over defendant's objection. 

The suspended sentence was revoked by court order on 

February 14, 1977, and defendant appeals. The following 

issues are before the Court. 

1. Was defendant subjected to double jeopardy? 

2. Was defendant denied his right to counsel? 

3. Was defendant denied due process of law? 

4. Was defendant afforded a hearing without unnecessary 

delay? 

At the outset, we note that a suspended sentence may be 

revoked on the basis of a felony conviction, even though the 
conviction is awaiting appellate review. Roberson v. State 

of Connecticut (2nd Cir. 1974), 501 F.2d 305, 308; United 

States v. Carrion (9th Cir. 1972), 457 F.2d 808; See generally, 

Anno. 76 ALR3d 588; State v. Radi (1978), Mont. , 578 

P.2d 1169, 1181, 35 St.Rep. 489, 503, holds that persistent 

offender status is not avoided where previous conviction is 

pending on appeal at the time of sentencing. 

Defendant contends that revocation of the suspended 

sentence enhances his punishment and thus subjects him to 

double jeopardy. We disagree. Even though a 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. 

The legislature has provided: 

I' (1) Whenever a person has been found guilty of 

an offense upon a verdict or a plea of guilty, 

the court may: 

"(b) suspend execution of sentence up to the maximum 

sentence allowed for the particular offense. The 

sentencing judge may impose on the defendant any reasonable restrictions during the period of suspended 

sentence. Such reasonable restrictions may include: 

. . . (iii) conditions for probation; 

"(2) If any restrictions or conditions imposed 

under subsection (l)(a) or (l)(b) are violated, any 

elapsed time, except jail time, shall not be a credit 

against the sentence unless the court orders otherwise." Section 46-18-201, MCA. 

Montana case law is clearly to the same effect. 

"The revocation of a suspension of sentence leaves 

the defendant subject to execution of the original sentence, as though it had never been suspended." 

Matter of Ratzlaff (1977), Mont . -1 564 P. 2d 

1312, 1315, 34 St. Rep. 470, 473, citing Roberts v. 

United States (1943), 320 U.S. 264, 64 S.Ct. 113, 

88 L.Ed. 41; see also State ex rel. Bottomly v. 

District Court (1925), 73 Mont. 541, 546, 237 P.2d 525, 526. 

Speaking directly to the question, we have said: 

"The Fifth Amendment to the United States Constitution provides that no person shall 'be subject 

for the same offense to be twice put in jeopardy 
of life or limb.' This prohibition is applicable 

to state action under the 'due process' clause of 

the Fourteenth Amendment to the United States 

Constitution. North Carolina v. Pearce, 395 U.S. 

711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It protects 

offenders from multiple punishment for the same 

offense. Ex parte Lange, [85 U.S. (18 Wall) 163, 

21 L.Ed 8721; United States v. Benz 282 U.S. 304, 

51 S.Ct. 114, 75 L.Ed. 354. Montana's constitutional provision is substantially similar providing 

that 'No person shall be again put in jeopardy for 

the same offense . . .' Art. 11, Section 25, 1972 

Montana Constitution. 

"However, revocation of a 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.' Roberts 

v. United States, supra; State ex rel. Bottomly v. 

District Court, supra. The defendant's subsequent 

conduct, not his original offense, forms the basis 

of revocation and reinstates the original sentence. 

Petitioner is not being punished twice for the same 

offense." State v. Ratzlaff, 564 P.2d at 1316, 

34 St.Rep. at 474. See also Paul v. State (Alaska 

1977), 560 P.2d 754; 22 C.J.S. Criminal Law 8239, 

p. 623. 

Defendant's reliance on Flint v. Hocker (9th Cir. 1972), 462 F.2d 

590, is misplaced. There, the court held that a probationer has 

the right to counsel when revocation of probation could result in 

the execution of the original sentence. The decision did not condemn the execution of the original sentence upon revocation. 

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. 

After conviction, the decision to suspend a sentence is a 

"decision to forego complete denial of liberty by incarceration in 

favor of a judicially-supervised period of restricted liberty in 

the hope that the purposes of rehabilitation of defendant and the 

protection of the public can be achieved by the lesser deprivation 

of liberty." State v. Eckley (1978), 34 0r.App. 563, 579 P.2d 291, 

293. In essence, the trial court retains jurisdiction over the 
defendant by imposing conditions on defendant's freedom to which 

he agrees to abide. Marutzky v. State (0kla.Cr. 1973), 514 P.2d 

The revocation hearing is not a criminal trial. Petition 

of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190. 

" . . . It is an exercise of the court's supervision 

over a probationer . . . 

"There is no adjudication of guilt or innocence 

upon the court's entry of its order upon an application to revoke. The court has only made a factual 

determination involving the existence of a violation 

of the terms of the suspended sentence." Marutzky, 

514 P.2d at 431. See also Petition of Meidinger, 

168 Mont. at 15, 539 P.2d at 1190; State v. Ratzlaff, 

supra, 34 St.Rep. at 474, 564 P.2d 1316. 

"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. Cf. Davenport v. State (Tex. 1978), 574 S.W.2d 73; 

State v. Simmerman (1978), 118 Ariz. 298, 576 P.2d 157; State v. 

Eckley, supra; Marutzky v. State, supra. 

The record belies defendanva contention that he was denied 

counsel. On February 1, 1978, Oppelt briefly appeared in court 

without his attorney. The court dismissed the first petition for 

revocation and informed defendant that a second petition, based on 

the May 1977 convictions, had been filed. The court noted that counsel 
was not present and continued the hearing. 

Defendant argues if counsel were present, he would have 

objected to the second petition on double jeopardy grounds, As 

demonstrated above there was no double jeopardy and defendant 

was not prejudiced by the absence of an objection on that ground. 

There was no denial of fundamental fairness or due process. We 

find no error. Petition of Doney (1974), 164 Mont. 330, 522 P.2d 92. 

Defendant next argues he was denied due process of law by 

the absence of witness confrontation and the lack of a two-step hearing process. We disagree. 

Defendant's guilt or innocence of the original crime is not 

at issue in revocation proceedings and he is not afforded the full 

range of constitutional rights available at trial. Gagnon v. Scarpelli 

(1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L Ed 2d 656; Davenport v. 

State, supra, 574 S.W.2d at 75. This is not to say defendant has 

no rights in such proceedings; in Gagnon the United States Supreme 

Court likened revocation of probation to revocation of parole and 

held a probationer was entitled to a preliminary and a final hearing. 

See Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L Ed 2d 

484, requiring preliminary and final hearings in parole revocation. 

"At the preliminary hearing, a probationer or parolee 

is entitled to notice of the alleged violations of 

probation or parole, an opportunity to appear and to 

present evidence in his own behalf, a conditional right 

to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing. 408 U.S. 

at 487. The final hearing is a less summary one because the decision under consideration is the ultimate 

decision to revoke rather than a mere determination of 

probable cause, but the 'minimum requirements of due 

process' include very similar elements: 

"'(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer 

or] parolee of evidence against him; (c) opportunity 

to be heard in person and to present witnesses and 

documentary evidence; (d) the right to confront and 

cross-examine adverse witnesses (unless the hearing 

officer specifically finds good cause for not allowing 

confrontation); (e) a 'neutral and detachedH hearing 

body such as a traditional parole board, members of 

which need not be judicial officers or lawyers; and (f) 

a written statement by the factfinders as to the evidence 
relied on and reasons for revoking [probation or] 

parole.' Morrissey v. Brewer, supra at 489." 

Gagnon v. Scarpelli, 411 U.S. at 786, 93 S.Ct. at 

1761-1762, 36 L Ed 2d at 664. 

The February 1 hearing was not intended to be, but became a preliminary hearing in that there was a "minimal inquiry" into the 

basis of the petition. On that date defendant was given notice of 

the basis of the petition and was before an impartial magistrate. 

As there was no issue of fact, the giving of evidence was not necessary and there was no need to confront witnesses. Likewise, 

fundamental fairness did not require a written report of this hearing. At the February 10 hearing, which was in effect the final 

hearing, defendant was afforded notice, had an opportunity to be 

heard, was before a neutral hearing body and was given written notice 

of the revocation and the reason therefor. The only witness against 

him, the prosecutor, was subjected to cross-examination. As the only 

basis for revocation was the entry of the May 1977 conviction, it was 

not necessary for him to present witnesses. Defendant's argument that 

he was denied his right to confront witnesses at the hearing on the 

first petition (November 22, 1977) is not germane to the order issued 

on the second petition. 

Defendant's argument that he was denied his constitutional 

right to a speedy trial lacks merit. A speedy trial under the Sixth 

Amendment to the United States Constitution and section 24, Article 

I1 of the Montana Constitution is guaranteed only in "criminal prosecutions." As discussed, revocation of probation is not a criminal 

prosecution or proceeding. See Paul v. State, supra. 

In the alternative defendant notes he has a right to a hearing "as promptly after arrest as possible" under section 46-23-1013, 

MCA. See also Morrissey v. Brewer, 408 U.S. at 485, 92 S.Ct. at 2602, 

33 L Ed 2d at 496. This is a determination to be made on the basis 

of the facts of the particular case. Here, defendant was initially 

brought before the court on October 14, 1977. Although the record 
is not clear as to the exact date of arrest, we know it occurred 

between October 7, the date the arrest warrant was issued, and 

October 14, the date of the initial hearing. There is no claim that 

an unreasonable time elapsed between arrest and this first hearing. 

Thereafter, defendant caused substantial delays and did not at any 

time assert his right to a hearing without unnecessary delay. We 

are also mindful of the dismissal of the first petition and the necessity of filing the second petition. Under the facts of this case 

there was no unnecessary delay. Defendant's argument the delay prejudiced him by causing him to lose the premium on his appeal bond is 

without merit. The bond was lost as a result of his arrest, not as 

a result of any delay, necessary or otherwise. 

Affirmed. 

Chief Justice 

We concur: 

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J T7 st ces