No. 89-22

IK THE SUPREME COURT OF THE STATE OFMONTANA 1989

STATE OFMONTANA, plaintiff and Respondent,-VSMICHAEL D.W. LANGE, Defendantand Appellant.

APPEAL FROM: DistrictCourtof the Seventh~udicial District, Inand forthe Countyof Richland, The HonorableDaleCox, Judge presiding. COUNSEL OF RECORD: For Appellant: RichardJ. Carstensen, Billings, Montana For Respondent:
Hon. Marc Racicot, AttorneyGeneral, Helena, Montana ~atricia J. Schaeffer, Asst. Atty. General, Helena 

### victor G. Koch, CountyAttorney, sidney, Montana

Submittedon Briefs: April20, 1989 Decided: June 6, 1989Mr. ~ustice~illiam E. Hunt, Sr., delivered the opinion of the Court.

The ~istrictCourt of the Seventh Judicial District, Richland County,revoked the suspended sentence of Michael D. W. Lange, the defendant, forviolations of the conditions of his probation, under S 46-18-203,MCA, in 1986 and again in 1988. Lange appeals. We affirm. The following issuesare raised on appeal: 1. Whether the 1986 revocation ofdefendant's suspended sentence violated the double jeopardy clauses of the united States and Montana constitutions rendering all further proceedingsunconstitutional. 2. Whether substantial evidence supported the District Court's exercise of discretion in revoking defendant's 1988 suspended sentence. 3. Whether defendant'sdue process rightswereviolated during theMay, 1988 revocationhearing because he was unable to confront and crossexamine awitness. On November 2, 1983,a jury convicted defendant for the 1981 felony offenses of criminal sale of dangerous drugs and criminal possession with intent to sell in violation of SS 45-9-101 and 45-9-103, MCA (1981). On February 29, 1984,he

was sentenced to ten years with all suspended subject to conditions of probation. In 1986 defendant failed to report to his probation officer on several occasions. For these violations the District Court, on August 27, 1986,ordered a revocation of the February 29, 1984 sentence under S 46-18-203, MCA, and defendant was sentenced to serve ten years with eight years suspendea again subject to conditions 

### of probation upon release.On December 3, 1986, defendant was paroled from the Montana State Prison andmoved toNorth Dakota. At that time he was subjectto the supervisionof aNorth Dakotaprobation officer

# . Montana retained jurisdiction of defendant during his probationary period. 

### In May, 1988, defendant's probation officer was contactedby security police atNorth Dakota StateCollege of Science who informed him that defendant was suspected of selling marijuana on campus. Consequently, onMay 17, 1988, the probation officer authorized a search of defendant

### 's dormitory room, his person, and a vehicle owned by defendant's girlfriend but used by him. Nothing ~u'~stantia1

was found in his room but the search of the vehicle revealed the remnants of a greeting card with residue of a vegetable-like substance which later tested positive for marijuana. A urinalysis test of defendant was administered

on the day of the search and later on May 23, 1988. Both tests revealed recent marijuana use. The greeting card residue and urinalysis samples were analyzed and documented by the North Dakota State Toxicologist. Use and possession of dangerous drugs by the defendant were violations of his 1986 conditionsofprobation. On June 

### 4, 1988, defendant's eight year probationary portion of his sentence began under the supervision of his North Dakota probation officer. On June 10, 1988, defendant's probation officer filed a report concerning the May, 1988, violations of probation and, on August 19, 1988, the Richland Deputy County Attorney filed a petition for revocation of defendant's suspended sentence based on the report. A hearing concerning the violations was conducted on September 19, 1988, and then continued to October 

### 3, 1988. On October 25, 1988, the District Court found that defendantdid indeed violate the conditionsofhis probation by the use and possession ofmarijuana inMay, 1988. Consequently,the ~istrictCourt revoked his suspended sentence under S 46-18-203,MCA, and sentenced defendant to five years in the Montana State prison with five days credit for jail time previously served. The first issue raised on appeal is whether the 1986 revocation of defendant's suspended sentence violated the double jeopardy clauses of the united States and Montana constitutionsby enhancing hispunishment thus,renderingall further proceedingsunconstitutional. 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." The clause protects offenders frommultiple punishment for the same offense. 

### Ex Parte Lange (1874), 85 U.S. (18Wall.) 163, 21 L.Ed. 872. The Montana Constitution affords a similar protection. section 25, Art. 11, 1972 Mont. Const., provides that, "No person shall be again put in jeopardy for the same offense.

# .." We have held,however, that the revocation of

a suspended sentence does not subject defendant to jeopardy twice for the same offense. Matter of Ratzlaff (19771,172 Mont. 439, 445, 564 P.2d 1312, 1316. 

### A revocation hearing is not a criminal trial, petition of Meidenger (1975), 168 Mont. 7, 15, 539 P.2d 1189, 1190, since there is no adjudicationof guilt or innocence. 

### rial

concerns anew crime while a revocation hearing concernsonly whether the conditions of a suspended sentence had been violated. Marutzky v. State (Okla.

### rim. App., 1973), 514 P.2d 430, 431. "The subsequent conduct, not his original offense, forms the basis of revocation and reinstates the original sentence." Ratzlaff, 564 P.2d at 1316. The defendant, 

### in this case, remained subject to the originalsentence as if it had never been suspended,and hemust live with the knowledge that "a fixed sentence for adefinite term hangs over him." Ratzlaff, 564 P.2d at 1316,and Roberts v. united States (1943), 320 U.S. 264, 268, 64 S.Ct. 113, 115, 88L.Ed. 41,44. Under 

### 5 46-18-203(l), MCA, the District Court retains jurisdiction over defendant during the period of probation. See State v. Oppelt (1979), 184 Mont. 48, 53, 601 P.2d 394, 397, and Marutzky, 514 P.2d at 431. A revocation hearing is simply an exercise of the trial court's supervision over defendant during probation and the consequence of revocation is execution of a penalty previously imposed. 

### -- See Marutzky, 514 P.2d at 431. We agree. As stated in State v. Eckley (1978), 34 0r.App. 563, 579 P.2d 291: Because the revocation proceeding isnot 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 inapplicable. In this case, defendant violated the conditions of his 1986 probation by his failure to report to his probation officer. After a revocation hearing, he was sentenced to
serve 10 years with two years suspended. We hold the revocation of defendant's suspended sentence did not violate the double jeopardy clauses of the United States and Montana Constitutions. Defendantnext argued that the District Court abused its discretion because the revocation was not based on substantialevidence. We disagree. The revocation of a suspended sentence comes within the purview of judicial discretion but must be supported bysubstantial evidence. Statev. Lange (Mont.1987), 733 P.2d 846, 848, 44 St.Rep. 418, 420. The ~istrict Court revoked defendant's suspended sentence for violating the conditions set forth in itsAugust 27, 1986 judgment: That he violate no laws, city, county, state or federal. That he use no drugs of any kind unlessprescribed to him by a licensed physician and that he not be in or about any place where dangerous drugs, as that term is defined by the State of Montana, are being used, dispensed or sold. The judgment also required that defendant submit to a search of his person, residence or vehicle,or an examinationofhis bodily fluids upon reasonable request of his probation officer

# . On May 17, 1988, defendant's probation officer authorized a search ofdefendant's dorm room,his person, and


### a vehicle owned by defendant's girlfriend but used by him. The search was based on information received from the North Dakota State College of Science security police that defendant was suspected of dealing drugs. The search of defendant's car produced remnants of a smoked greeting card with a vegetable-like substance in its creases. Just prior to the search, defendant admitted to his North Dakota probation officer that he used a greeting card to roll and smokeamarijuana cigarette thepreviousweek. An analytical report from theNorth Dakota StateToxicologistconfirmed the residue taken from the card was indeed marijuana. Further, two urinalysis tests were administered to defendant at his probation officer's requestonMay 17 and May 23, 1988. Both tests, also analyzed by the North Dakota State ~oxicologist, confirmed recent marijuana use. Defendant made a second admission ofmarijuana use to his probation officer when the first urine sample was requested. During the revocatio~hearing, defendant's probation officer testified to these events. Letters from the State Toxicologistwhich confirmed and explained the test resultswere admitted into evidence. We hold that this evidence meets the substantial evidence standard. Further,

### 5 46-18-203(1), MCA,provides inpart: A judge

# .. .who has suspended the execution of a sentence

# . .

# .under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed.

We will not reverse the District Court's revocation of defendant's suspended sentence absent a showing of abuse of discretion. See State v. Stangeland (~ont. 1988), 758 ~.2d 776, 45 St.Rep. 1446. The facts relied upon need not establish guiltbeyond a reasonabledoubt. State

### v. Robinson

(Mont. 1980), 619 P.2d 813, 37 St.Rep. 1830. We held in State v. Kern (1984), 212 Mont. 385, 389, 695 P.2d 1300,



# . . .All that is required is that the facts before him be such that the judge is reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. The District Court properly used its discretion when it ordered the revocation of defendant's suspended sentence based on the testimony of the probation officer and the letters from theNorth Dakota State Toxicologist. The last issue raised on appeal is whether defendant's due process rights were violated during the 1988 revocation hearing because he was not able to confront or cross-examine the North Dakota chemist who analyzed and documented the urinalysis tests. The chemist did not testify at the revocation hearing. Instead, letters from the chemist todefendant's probation officer,which confirmed and explained the toxicology test results, were presented as evidence. In this case, defendant stipulated that the letters could be received into evidence for the truth of the matter asserted during the 1988 revocation hearing. The defendant
never specifically objected to the denial of his right to confront and cross-examine the chemist. He merely objected to his probation officer as an unqualified witness to give testimony about the contentsof the chemist's letters. In fact,defendant's counsel stated: Your Honor, we agreed that this gentleman [the chemist] did not have to appear and recite as evidence what was in his report, and what was in his report could be received in evidence without foundation,that'scorrect. Defendant stipulated that presence and testimony of the chemist was not necessary and cannot now complain that his right to confront and cross-examine the witness was denied. Affirmed.