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: 

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### 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 10year sentence which was suspended on conditionhe 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 10years in prison but released on bail pending appeal. The conviction was affirmed by this Court on June 8, 1978. Statev. Oppelt (1978), Mont

# . , 580 P.2d 110, 35 St.Rep. 727. On October 7, 1977, a petition for revocation of the April 1975 suspended sentencewas filed. It incorporated a district parole officer's report of violationswhich alleged that Oppelt assaulted Donna and Harold McClure; that he messed up and partially burned Donna McClure's house; that he intimidatedApril McClure; and that he had been seen drinking heavily. The "summary"contained on page two of the report listed the May, 1977 convictions as additionalviolations. Defense counsel and the county attorney each had complete copies of the report. However,page two of the reportwas 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 onNovember 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 admissibilityThe stateoffered theMay 1977convictions and defendant objected on the basis they were on appeal. The court neither admitted nor refused the evidence. Counsel were asked to, and did filebriefs on the admissibility of the affidavits and the convictions. No decisionwas rendered on the firstpetition. On February 1, 1978, anotherpetition forrevocation of the suspended sentence was filed. It incorporated a second report of violationswhich clearly listed the May 1977 convictions as infractions. On the same day, defendant was brought before the courtwithout his attorney, who apparently received no notice of the hearing. The court ascertained that Oppelt did not know the firstpetition was inpart based on theMay, 1977convictions. Defendant was informed the second petition was based on these convictions and that the first petitionwas dismissed. He was further advised that since his attorneywas not present, thehearing was continued. A hearing on the second petition was held on February 10, 1978. Defendant moved to quash thepetition on grounds he was denied counsel when he was brought before the court on February 1and further thathe was being subjected to double jeopardy. The motion was denied. The only evidence introduced by the statewere certified copies of theMay 1977convictions. They were admitted over defendant's objection. The suspended sentencewas revoked by court order on February 14, 1977, and defendant appeals. The following issues arebefore the Court. 1. Was defendant subjected todouble jeopardy? 2. Was defendant denied his right to counsel? 3. Was defendant denied dueprocess of law? 4. Was defendant afforded a hearing without unnecessary delay? Atthe outset, we note that a suspended sentence may be revoked on the basis of a felony conviction, even though theconviction is awaiting appellatereview. Roberson v. State of Connecticut (2nd Cir. 1974), 501 F.2d 305, 308; United Statesv. Carrion (9thCir. 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 thatpersistent offender statusis not avoided where previous conviction is pending on appeal at the timeof sentencing. Defendant contends that revocation of the suspended sentence enhances hispunishment and thus subjects him to double jeopardy. We disagree. Even though a defendant must livewith the conditions of probation throughout the period of suspension and even though he must serve the entiresentence if the suspension is revoked, there is no double jeopardy. The legislaturehasprovided:

I' (1) Whenever a person has been found guilty of an offense upon a verdictor a plea of guilty, the courtmay:

"(b)suspend execution of sentence up to the maximum sentence allowed for theparticular offense. The sentencing judge may impose on the defendant any reasonable restrictions during theperiod of suspended sentence. Such reasonable restrictions may include:



# ... (iii)conditions forprobation;

"(2) If any restrictions or conditions imposed under subsection (l)(a) or (l)(b)are violated, any elapsed time, exceptjail time, shallnot be a credit against the sentence unless the court orders otherwise." Section 46-18-201, MCA. Montana case law is clearly tothe same effect. "The revocation of a suspension of sentence leaves the defendant subject toexecution of the original sentence, as though it had never been suspended." Mont

# . Matter of Ratzlaff (1977), -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 Stateex rel. Bottomly v. District Court (1925), 73Mont. 541, 546, 237 P.2d 525, 526. Speaking directly to thequestion, we have said: "The Fifth Amendment to the United States Constitutionprovides that no person shall 'be subject for the same offense to be twice put injeopardyof life or limb.' Thisprohibition is applicable to state action under the 'dueprocess' clause of the FourteenthAmendment to the United States Constitution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Itprotects offenders frommultiple punishment for the same offense. Ex parte Lange, [85U.S. (18Wall) 163, 21 L.Ed 8721;United Statesv. Benz 282 U.S. 304, 51 S.Ct. 114, 75 L.Ed. 354. Montana's constitutionalprovision is substantially similar providing that 'No person shallbe again put in jeopardy for the same offense

# .. .' Art. 11,Section 25, 1972 Montana Constitution. "However,revocationof a suspension of a sentence does not constitute a second punishment for the same offense. A defendant under a suspended sentence liveswith 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 revocationand reinstates the original sentence. Petitioner isnot being punished twice for the same offense." Statev. 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 (9thCir. 1972), 462 F.2d 590, ismisplaced. 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 subjectshim 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-supervisedperiod 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." Statev. Eckley (1978), 34 0r.App. 563, 579 P.2d 291, 293. In essence, the trial court retains jurisdiction over thedefendant by imposing conditions on defendant's freedom to which he agrees to abide. Marutzky v. State (0kla.Cr. 1973), 514 P.2d

The revocationhearing isnot a criminal trial. Petition of Meidinger (1975),168 Mont. 7, 15, 539 P.2d 1185, 1190. 

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# . .. It is an exercise of the court's supervision over a probationer 

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# . . "There isno adjudicationof 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, 168Mont. 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 requireproof 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 firstpetition was dismissed without any determination on the merits. Under these circumstancesand 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), 114Ariz. 505, 562 P.2d 385. We recognize theremay be a limit on howmany times the same operative factsmay 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. Davenportv. State (Tex. 1978), 574 S.W.2d 73; State v. Simmerman (1978), 118Ariz. 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 firstpetition for revocation and informed defendant that a second petition, based on the May 1977 convictions,had been filed. The courtnoted that counselwas notpresent 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), 164Mont. 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 isnot afforded the full range of constitutional rights available at trial. Gagnon v. Scarpelli

(1973), 411U.S. 778, 93 S.Ct. 1756, 36 L Ed 2d 656;Davenportv. State, supra, 574 S.W.2d at 75. This isnot to say defendant has

no rights in such proceedings; in Gagnon the United States Supreme Court likened revocation of probation to revocationof parole and held a probationer was entitled to a preliminary and a finalhearing. See Morrissey v. Brewer (1972),408U.S. 471, 92 S.Ct. 2593, 33 L Ed 2d 484,requiringpreliminary and final hearings in parole revocation. "Atthepreliminary 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 conditionalright to confront adverse witnesses, an independentdecisionmaker, and a written report of the hearing. 408U.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 'minimumrequirements 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 (unlessthe hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detachedHhearing body such as a traditionalparole board,members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidencerelied on and reasons for revoking [probationor] parole.' Morrissey v. Brewer, supra at 489." Gagnon

### v. Scarpelli, 411U.S. at 786, 93 S.Ct. at 1761-1762, 36 L Ed 2d at 664. The February 1 hearingwas not intended to be, but became a preliminary hearing in that therewas a "minimal inquiry" into the basis of thepetition. On that date defendantwas given notice of the basis of thepetition and was before an impartialmagistrate. As there was no issue of fact,the giving of evidence was not necessary and there was no need to confrontwitnesses. 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 revocationand the reason therefor. The only witness against him, the prosecutor,was subjected to cross-examination. As the only basis for revocationwas the entry of the May 1977 conviction, itwas not necessary for him to present witnesses. Defendant's argument that he was denied his right to confrontwitnesses at the hearing on the first petition (November22, 1977) isnot germane to the order issued

on the second petition. Defendant's argument that he was denied his constitutional right to a speedy trial lacksmerit. 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 "criminalprosecutions." As discussed, revocation of probation isnot a criminal prosecution or proceeding. See Paulv. State, supra. In the alternative defendant notes he has a right to a hearing "aspromptly after arrest as possible" under section 46-23-1013, MCA. See also Morrissey v. Brewer, 408U.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 recordis 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 firsthearing. Thereafter, defendant caused substantialdelays and did not at any time assert his right to a hearing without unnecessary delay. We are alsomindful of the dismissal of the firstpetition and the necessity of filing the second petition. Under the factsof 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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