No. 89-632 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

WALTER JOHN VOEGELE, JR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Byron W. Boggs, Missoula 

For Respondent: 

Honorable Marc Racicot, Attorney General, Helena 

George Schunk, Assistant Attorney General, Helena 

Robert L. Deschamps 111, County Attorney, Missoula 

Betty Wing, Deputy County Attorney, Missoula 

Submitted on Briefs: May 10, 1990 

Decided: June 7, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Walter John Voegele, Jr. , appeals the judgment of the District 

Court for the Fourth Judicial District, Missoula County, revoking 

his suspended prison sentence. We reverse. 

The issue is whether the imposition of sentence on August 24, 

1989, was void for lack of jurisdiction. 

In August 1987, Voegele pled guilty to third offense DUI and 

operating a motor vehicle while his license was suspended or 

revoked. On September 24, 1987, he was sentenced to serve one year 

in jail on the first count, with credit given for one day of jail 

time previously served, and six months in jail on the second count. 

The sentences were to run consecutively. The balances of the 

sentences not served were suspended on conditions including parole, 

abstention from alcohol, completion of alcohol counseling, payment 

of a $750 fine, and spending sixty days in jail, to be arranged to 

occur primarily on weekends. 

On March 24, 1989, the Missoula County Attorney's office 

petitioned for revocation of Voegele's probation and for imposition 

of sentence. Voegele and his attorney made no objection to the 

petition and on April 20, 1989, Voegele admitted to violations of 

his probation including failing to do community service in lieu of 

jail time and failing to meet with his probation officer. On 

August 24, 1989, the District Court sentenced Voegele to sixty days 
in jail with credit given for time already served. The sentence 

has been stayed pending this appeal. 

Section 46-18-203(2), MCA, provides: 

A petition seeking revocation of a suspended 

sentence . . . must be filed with the sentencing court during the period of suspension . . . . Expiration of the period of suspension . . . after the petition is filed does 

not deprive the court of jurisdiction to rule 

on the petition. 

Voegelels appellate counsel contends that because Voegele's 

suspended sentence had expired when the petition to revoke was 

filed, the District Court no longer had jurisdiction over this 

matter. Voegele's suspended sentence on Count I began on September 

24, 1987, and expired one year less one day later, on September 22, 

1988. His suspended sentence on Count I1 began on September 23, 

1988, and expired on March 22, 1989. The revocation petition was 

not filed until two days later, March 24, 1989. 

The State counters that absent objection below, Voegele is 

barred from now challenging the courtls jurisdiction. Section 46- 

20-701(2), MCA, states: 

. . . No claim alleging an error affecting 

jurisdictional or constitutional rights may be 

noticed on appeal, if the alleged error was 

not objected to as provided in 46-20-104, 

unless the defendant establishes that the 

error was prejudicial as to his guilt or 

punishment and that: 

(a) the right asserted in the claim did not 

exist at the time of the trial and has been 
determined to be retroactive in its application; 

(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the 

defendant or his attorney that prevented the 

claim from being raised and disposed of; or 

(c) material and controlling facts upon which 

the claim is predicated were not known to the 

defendant or his attorney and could not have 

been ascertained by the exercise of reasonable 

diligence. 

While Voegele rightfully asserts that allowing the tardy revocation 

petition was prejudicial to his punishment, he acknowledges that 

none of the above subsections (a) through (c) apply. Thus, he may 

not raise his claim of lack of jurisdiction under 5 46-20-701, MCA. 

However, "[wlhen the substantial rights of a defendant are 

involved, the lack of timely objection does not preclude us from 

exercising our power of discretionary review to examine any error 

at the trial court level." State v. Wilkins (1987), 229 Mont. 78, 

80-81, 746 P.2d 588, 589. This discretionary review under the 

plain error doctrine provides a remedy to prevent manifest 

injustice and will only be used in exceptional cases. Wilkins, 746 

P.2d at 589. Because the jurisdictional error here is plainly and 

simply one of arithmetic, we invoke the doctrine of plain error. 

The State also argues that Voegele is estopped from challenging the District Courtts jurisdiction. At the hearing a month 

after the petition to revoke was filed, Voegelets attorney stated 

that, "[Voegele] is willing to continue his probation even though 
this was a suspended sentence and the time has expired.It At the 

sentencing hearing four months later, Voegele's counsel offered 

that Voegele would agree to attend A.A. meetings, the weekend 

monitoring program, "and, of course, confessed to jurisdiction for 

an additional 18 months." 

There is nothing to indicate that anyone believed at the time 

of these hearings that the petition to revoke Voegelets suspended 

sentence had been filed outside of the period of his suspended 

sentence. Voegele's trial counsel was merely offering to continue 

Voegelels probation beyond its original term. Until Voegele 

obtained new counsel on appeal, no one was aware that the suspended 

sentence had expired before the petition to revoke was filed. We 

hold that under these facts, Voegele is not estopped from raising 

the jurisdictional issue. We further hold that the imposition of 

sentence on August 24, 1989, was void for lack of jurisdiction 

because the petition to revoke Voegelets suspended sentence was 

filed after the suspended sentence had expired. 

Reversed. 
We concur: 

Justices