No. 86-119 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

STATE OF MONTANA, Plaintiffand Respondent,
-vsEDWARD LEE FOREST, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, Inand for the County ofMissoula, The Honorable DouglasHarkin, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: IanChristopherson, Missoula,Montana
For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Robert I,. Deschamps, 111,County Attorney, Missoula, Montana

Submitted onBriefs: July 31, 1986 Decided: December 16, I986

Filed: 

# DEC16

## 1986

ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.On October 21, 1985, a motion for order of commitment
was filed in the District Court of the Fourth Judicial District, Missoula County, seeking to compel Edward Lee Forest to serve the remainder of his jail sentence. Forest filed a brief opposing the motion inwhich he attacked the validity of the original sentence imposed on him. The DistrictCourt granted themotion and ordered Forest to serve the remainder ofhis sentence. Forestappeals from that order. An informationwas filed in the DistrictCourt against Edward Forest on May 26, 1983, alleging in Count I that he violated § 61-8-401,MCA, driving a motor vehicle under the influence of alcohol, a third offense, and in Count I1 that he violated § 61-5-102,MCA, operating amotor vehicle without a valid.driver's license. On August 15, 1983, a second information was filed alleging that Forest again violated §§ 61-8-401 and 61-5-102,MCA. He initiallypled not guilty to all four counts,but on December 28 he withdrew his not guilty pleas and pled guilty to each count. Sentencing occurred onApril 30, 1984. In its judgment in Missoula County Cause No. 6373 (assigned from the information filed on May 26), the court sentenced Forest to oneyear in the county jailwith allbut three months of the sentence suspended on Count 1 and to six months in the county jail with all but fifteen days of the sentence suspended on Count 11. The same sentencewas entered in Missoula County Cause No. 6441 (assigned from the information filed on August 15). The sentenceswere to run consecutive with each other and with the sentences in each
cause. Forestdid not appeal fromthese judgments.Forest was released from jail on September 18, 1984, after serving 142 days of his sentence; however, his release
was subject to several conditions. Subsequently, the deputy county attorney filed apetition for revocationofprobation, and at thehearing on thematter, Forestadmitted the allegations of the petition. Under an order dated April 15, 1985, and entered in both causes, the court revoked Forest'sprior suspended sentence and ordered him to serve nine months and five days in the county jail. The terms and conditions of probation on the original sentence of April 30, 1984, were continued in full force and effect. No appeal.was taken from this judgmenteither. In July 1985, Forest was temporarily released from custody in order to attend a thirty-day alcohol rehabilitation and treatment program. He successfully completed the program, but he failed to return to serve thebalance of his jail term. The deputy county attorney filed amotion for an order of commitment on October 21, 1985, requesting that Forest be ordered to serve the remainder of his jail sentence. By memorandum and order dated January 20, 1986, the DistrictCourt granted the motion for commitment. In its order, the court stated that the judgment of April 30, 1984, is the basis of the court's authority over Forest. That judgment extended jurisdiction over him until April 30, 1987. Therefore, the conditions of probation imposed by the original sentence were to remain in effect until April 1987. Forest timely filed a notice of appeal from this order. During the pendency of this appeal, Forest served.the balance of his jail sentence. By order of the District Court,he was released from incarceration on October 8,1986.Defendant raises three issues inhis appeal: 1. Did the District Court err by failing to give defendant credit for the time he had already servedprior to revocation ofhis sentence? 2. Was the order of January 20, 1986, committing defendant to serve the balance of the sentence imposed under the April 1985 judgment, invalid for the reason that defendanthad already completed the sentence imposed on himby the April 1984 judgment? 3. Did the District Court err by attempting to assert jurisdiction over defendant until April 1987? It isunnecessary forus to decide the first two issues because they have been rendered moot. Defendant does not contest the correctnessof the underlying judgments. Rather, the gist of his argument is that he should not have been compelled by the January 20 order to serve any further jail time because the court did not properly credit him with the time previously served and because he had already served the remainder of the original sentence imposed. Since defendant has now completed the balance of the sentence imposed by the April 1985 judgmentand hasbeen released from incarceration, any discussion on these two issues would be purely academic. It is well settled that this Court will decide issues only when they have some practical effect on a party; wewill not decide questions that have mere theoretical significance. Defendant contends inhis third issue that theDistrict Court erred in asserting jurisdiction over him until April 30, 1987. It is likewise unnecessary forus to consider this issue because, in the State's response to defendant's answer to motion to dismiss for mootness, filed October 30, 1986, the State concedes that it will not seek to enforce theconditions of probation imposed on defendant under the court's original order for the period between October 8, 1986, and April 30, 1987. Therefore, this issue is also moot. Remanded to the District Court with instructions to release defendant from its probation jurisdiction effective October 8, 1986, thedate ofhis release from custody.

We concur: