No. 90-356 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsBERNARD JAMES FITZPATRICK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur J. Thompson, Thompson & Sessions, Billings, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Kathy Seeley, 

Assistant Attorney General, Helena, Montana; Harold 

Hanser, Yellowstone County Attorney, Curtis L. 

Bevolden, Deputy Yellowstone County Attorney, John 

P. Connor, Jr. and Mark J. Murphy, Special Deputy 

Yellowstone County Attorneys, Assistant Attorneys 

General, Billings, Montana 

Submitted on Briefs: October 19, 1990 

Filed: 

Decided: February 12, 1991 

0 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

The defendant Bernard James Fitzpatrick appeals from the 

sentences imposed by the Thirteenth Judicial District Court, 

Yellowstone County. We vacate the sentences and remand for 

resentencing. 

On March 30, 1990, an inmate or inmates cut a hole in the 

chain link fence in the recreation yard of the Yellowstone County 

detention facility. Seven inmates escaped through the hole, 

including Bernard Fitzpatrick, who was being held pending 

sentencing following a plea of guilty to deliberate homicide, 

aggravated kidnapping and robbery. Following the escape, 

Fitzpatrick and another inmate broke into Billings Senior High 

School. They stole some clothing and other small items. The 

authorities recaptured Fitzpatrick the next morning. 

The State charged Fitzpatrick with the felony offenses of 

burglary and escape. Fitzpatrick entered guilty pleas to both 

counts. In exchange for the guilty pleas, the State agreed to 

recommend sentences on the escape and burglary convictions 

concurrent to each other, but consecutive to Fitzpatrick's other 

sentences. 

At the sentencing hearing, all parties stipulated that the 

procedural requirements for persistent felony offender designations 

had been met. The State then recommended that the court designate 

Fitzpatrick a persistent felony offender and requested that the 

court impose a sentence of 100 years on each of the charges. 

Fitzpatrick requested a ten-year sentence on each count. 
The District Court found that Fitzpatrick was a persistent 

felony offender. The court sentenced Fitzpatrick to serve ten 

years for the escape plus an additional 100 years as a persistent 

felony offender and to serve five years for burglary plus an 

additional 100 years as a persistent felony offender. Fitzpatrick 

appeals from these sentences. 

The only issue is whether the District Court sentenced 

Fitzpatrick to terms exceeding the statutory maximum for a 

persistent felony offender. 

A persistent felony offender is sentenced under 5 46-18-502, 

MCA , which states pertinent part : 

(1) Except as provided in subsection (2), a persistent 

felony offender shall be imprisoned in the state prison 

for a term of not less than 5 years or more than 100 

years or shall be fined an amount not to exceed $50,000, 

or both, if he was 21 years of age or older at the time 

of the commission of the present offense. 

(2) If the offender was a persistent felony offender, 

as defined in 46-18-501, at the time of his previous 

felony conviction, less than 5 years have elapsed between 

the commission of the present offense and either the 

previous felony conviction or the offender's release on 

parole or otherwise from prison or other commitment 

imposed as a result of the previous felony conviction, 

and he was 21 years of age or older at the time of the 

commission of the present offense, he shall be imprisoned 

in the state prison for a term of not less than 10 years 

or more than 100 years or shall be fined an amount not 

to exceed $50,000, or both. 

Clearly, 5 46-18-502, MCA, provides for a maximum term of 100 

years for a persistent felony offender, not an additional term of 

100 years, as imposed by the District Court in this case. The 

sentencing parameters of 5 46-18-502, MCA, replace the maximum 

sentence prescribed for the offense. It is not a sentence in 
addition to the sentence for the offense. 

This Court has interpreted 5 46-18-502, MCA, as increasing 

the maximum penalty for the underlying felony to 100 years. In 

State v. Metz, 184 Mont. 533, 604 P. 2d 102 (1979), defendant was 

convicted of sexual intercourse without consent and sentenced to 

100 years in prison as a persistent felony offender. In Metz, we 

explained that "[d]efendantls sentence is within the maximum 

allowable by the persistent felony offender statute. Section 46- 

18-502 (I), MCA.I1 I Metz 184 Mont. at 536, 604 P.2d at 104. In 

State v. Tracy, 233 Mont. 529, 761 P.2d 398 (1988), the defendant 

was convicted of felony theft, and sentenced to a term of 50 years 

as a persistent felony offender, with 40 years suspended. In 

reviewing the sentence on appeal, we stated: 

Section 46-18-502 (I), MCA, grants the judge discretion 

to sentence a persistent felony offender to not less than 

5 or more than 100 years in prison. 

Tracy, 233 Mont. at 533-34, 761 P.2d at 401. 

Here, the District Court could have properly sentenced 

Fitzpatrick to serve a maximum of 100 years for escape and 100 

years for burglary under 5 46-18-502, MCA. The District Court, 

however, imposed sentences exceeding the statutory maximum limits 

under the statute. We therefore vacate the sentences and remand 

to the District Court for resentencing. 

In addition, we note that 5 46-18-502(2), MCA, applies when 

a defendant has previously been sentenced as a persistent 

felony offender and less than 5 years have elapsed between the 

commission of the offense for which the defendant is presently 
I 

t 

being sentenced and the previous felony conviction and sentence as 

a persistent felony offender. Section 45-2-101(15), MCA, defines 

conviction as a nnjudgment of conviction or sentence entered upon 

a plea of guilty . . . . 11 

In this case, the District Court first entered judgment and 

sentenced Fitzpatrick on the escape charge, designating him a 

persistent felony offender on that charge. It then entered 

judgment and sentenced him on the burglary charge, designating him 

a persistent felony offender on that charge. Therefore, even 

though only a number of minutes had elapsed between the two 

convictions, Fitzpatrick was a persistent felony offender at the 

time he was sentenced on the burglary charge, bringing him under 

subsection (2) of the persistent felony offender statute. When a 

defendant is sentenced under subsection (2), the sentence imposed 

must run consecutively to any other sentence. Section 46-18- 

502(4), MCA. Thus, subsection (4) requires that any sentences 

imposed by the District Court on remand run consecutively. 

Vacated and remanded to the ~istrict Court for resentencing 

consistent with this Opinion. 

Justice 

We Concur: A 

//- Chief Justice