No. 89-22 

IK THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

plaintiff and Respondent, 

-VSMICHAEL D.W. LANGE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh ~udicial District, 

In and for the County of Richland, 

The Honorable Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

~atricia J. Schaeffer, Asst. Atty. General, Helena 

victor G. Koch, County Attorney, sidney, Montana 

Submitted on Briefs: April 20, 1989 

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

the Court. 

The ~istrict Court of the Seventh Judicial District, 

Richland County, revoked the suspended sentence of Michael D. 

W. Lange, the defendant, for violations of the conditions of 

his probation, under S 46-18-203, MCA, in 1986 and again in 

1988. Lange appeals. We affirm. 

The following issues are raised on appeal: 

1. Whether the 1986 revocation of defendant's suspended 

sentence violated the double jeopardy clauses of the united 

States and Montana constitutions rendering all further 

proceedings unconstitutional. 

2. Whether substantial evidence supported the District 

Court's exercise of discretion in revoking defendant's 1988 

suspended sentence. 

3. Whether defendant's due process rights were violated 

during the May, 1988 revocation hearing because he was unable 

to confront and cross examine a witness. 

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 and moved to North Dakota. At that time 

he was subject to the supervision of a North Dakota probation 

officer . Montana retained jurisdiction of defendant during 

his probationary period. 

In May, 1988, defendant's probation officer was 

contacted by security police at North Dakota State College of 

Science who informed him that defendant was suspected of 

selling marijuana on campus. Consequently, on May 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 conditions of probation. 

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 defendant 
did indeed violate the conditions of his probation by the use 

and possession of marijuana in May, 1988. Consequently, the 

~istrict Court 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 

constitutions by enhancing his punishment thus, rendering all 

further proceedings unconstitutional. 

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 from multiple punishment for the same offense. Ex 

Parte Lange (1874), 85 U.S. (18 Wall.) 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 adjudication of guilt or innocence. rial 

concerns a new crime while a revocation hearing concerns only 

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 original 
sentence as if it had never been suspended, and he must live 

with the knowledge that "a fixed sentence for a definite 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, 

88 L.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 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 

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. 

Defendant next argued that the District Court abused its 

discretion because the revocation was not based on 

substantial evidence. We disagree. 

The revocation of a suspended sentence comes within the 

purview of judicial discretion but must be supported by 
substantial evidence. State v. 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 its August 27, 1986 judgment: 

That he violate no laws, city, county, state or 

federal. 

That he use no drugs of any kind unless prescribed 

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 examination of his 

bodily fluids upon reasonable request of his probation 

officer . 

On May 17, 1988, defendant's probation officer 

authorized a search of defendant'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 

smoke a marijuana cigarette the previous week. An analytical 

report from the North Dakota State Toxicologist confirmed the 

residue taken from the card was indeed marijuana. Further, 

two urinalysis tests were administered to defendant at his 

probation officer's request on May 17 and May 23, 1988. Both 

tests, also analyzed by the North Dakota State ~oxicologist, 

confirmed recent marijuana use. Defendant made a second 

admission of marijuana 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 Toxicologist which confirmed 

and explained the test results were admitted into evidence. 

We hold that this evidence meets the substantial evidence 

standard. 

Further, 5 46-18-203(1), MCA, provides in part: 

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 guilt beyond a reasonable doubt. 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 the North 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 to 
defendant'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 contents of 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's correct. 

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.