No. 87-23 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSALFRED VERNON OWENS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable C. B. Sande, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Alfred Vernon Owens, pro se, Deer Lodge, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Submitted on Briefs: Sept. 25, 1987 

Decided : January 15, 1988 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the opinion of 

the Court. 

Appellant appeals from an order of the District Court, 

Thirteenth Judicial District, Yellowstone County, designating 

appellant a dangerous of fender pursuant to 5 46-18-404, MCA. 

We affirm. 

Appellant brings two issues on appeal. 

1. Did the District Court have jurisdiction to render a 

dangerous offender designation on a judgment and sentence 

imposed and executed 106 months earlier? 

2. Did the District Court subject the appellant to 

double jeopardy by increasing his sentence with a dangerous 

offender designation? 

On November 27 and 28, 1977, the defendant was involved 

in the robbery homicide of a man in Yellowstone County. The 

defendant's brother robbed the deceased in the presence of 

the defendant in his motel in Laurel. The defendant then 

drove the deceased and defendant's brother to an isolated 

area where the deceased was shot twice by the defendant's 

brother. Both brothers returned to Laurel and removed 

several items from the deceased's car. 

Appellant-defendant Owens was convicted of mitigated 

deliberate homicide and robbery and was sentenced to 40 years 

imprisonment on each count to run concurrently. The order 

dated June 15, 1978 did not designate him either as a 

nondangerous or dangerous offender. On January 16, 1987, the 

appellant initiated a habeas corpus proceeding in which he 

challenged Warden Henry Risley's treatment of him as a 

dangerous offender for parole purposes. The petition was 

initially dismissed on procedural grounds but upon 

reconsideration this Court remanded the matter to the 
sentencing court for findings and clarification of the 

dangerous designation. After a hearing, the District Court 

ordered that appellant be designated a dangerous offender and 

filed findings of fact and conclusions of law to that effect. 

This was deemed an order nunc pro tunc by this Court. From 

this order the appellant appeals. 

Appellant contends that the District Court lacked proper 

jurisdiction to designate the appellant as dangerous nearly 

10 years after he had been sentenced. He argues that the 

designation augments his valid 1978 sentence and that, in any 

event, the court had no power to modify it after the final 

judgment had been filed. See Wilkinson v. State (Mont. 

1983), 667 P.2d 413, 414, 40 St.Rep. 1239, 1241; State v. 

Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711. 

Although appellant correctly states the law, it does not 

apply in a case where the Supreme Court has remanded a matter 

to a district court for clarification. In each of the cases 

cited by appellant the court had attempted to modify a 

judgment sua sponte after it had been filed. This is not the 

case here. A district court must follow the appellate 

court's mandate on remand. State, Etc. v. Dist. Ct. of 

Nineteenth, Etc. (1979), 184 Mont. 346, 349, 602 P.2d 1002, 

1004; In Re Stoian's Estate (1960), 138 Mont. 384, 390, 357 

P.2d 41, 45. On remand the court has only so much 

jurisdiction as it is given by mandate of the appellate 

court. By remanding to the District Court, this Court held 

that the District Court had jurisdiction to act in this 

matter. In Re Stoian's Estate, 357 P.2d at 47. 

The appellant argues next that his sentence did not 

include or imply a designation of dangerous and therefore he 

should be treated as nondangerous. Thus any attempt hy 

Warden Risley to treat him otherwise is in effect lengthening 

his sentence. A court order now designating him as dangerous 
augments his prior valid sentence constituting double 

jeopardy. The State, on the other hand, argues that his 

sentence, by its silence, gives a presumption of the 

dangerous designation so no double jeopardy is implicated by 

the District Court's clarification. 

Double jeopardy can occur when a defendant's punishment 

is increased after a valid sentence is imposed. United 

States v. Best (9th Cir. 1978), 571 F.2d 484, 486; Borum v. 

United States (D.C. Cir. 1967), 409 F.2d 433, 440. 

We hold, however, that no double jeopardy occurred in 

the appellant's case because the District Court simply 

clarified its earlier sentence to conform with what it 

originally intended. 

It is inherent in the District Court's power to correct 

clerical errors in its own judgments in order to make the 

record speak the truth as to what was actually decided. 

Dahlman v. Dist. Ct., Seventeenth Jud. Dist. (Mont. 1985), 

698 P.2d 423, 425, 42 St.Rep. 550, 553. The error must be 

apparent on the face of the record to insure that the 

correction does not in effect set aside a judgment actually 

rendered nor change what was originally intended. State ex 

rel. Kruletz v. District Court (1940), 110 Mont. 36, 40, 98 

P.2d 883, 885. 

It is clear from this Court's review of the record that 

the District Court intended to designate the defendant as 

dangerous. The statute applicable to this case is 5 

46-18-404 (I), MCA (1978) , which read as follows: 

(1) The sentencing court shall designate an 

offender a nondangerous offender for purposes of 

eligibility for parole under Part 2 of Chapter 23 

if : 

(a) during the 5 years preceding the commission of 

the offense for which the offender is being 

sentenced., the offender was neither convicted of 
nor incarcerated for an offense committed in this 

state or any other jurisdiction for which a 

sentence to a term of imprisonment in excess of 1 

year could have been imposed; or 

(b) the court has determined, based on any 

presentence report and the evidence presented at 

the trial and the sentencing hearing, that the 

offender does not represent a substantial danger to 

other persons or society. 

The presentence report shows that the defendant had been 

convicted of felony burglary in Oregon within the last five 

years preceding the homicide and had several other 

convictions including one for statutory rape in Texas and one 

for lust under 14 years in California. 

That the sentencing court contemplated a dangerous 

offender designation is evident from the following exchange 

which took place at the sentencing: 

MR. HANSER: Your Honor, does the Court want a 

specific finding that the defendant is a dangerous 

of fender? 

THE COURT: Yes. I think that follows in the 

statute. 

MR. HANSER: I believe it does, Your Honor. 

THE COURT: But you can do that if you want to. 

Through error or oversight such a designation was 

omitted from the written judgment. The District Court held a 

hearing to enable it to clarify its earlier judgment. It 

entered findings of fact and conclusions of law to the effect 

that the defendant was not entitled to a nondangerous 

designation and deemed him dangerous for purposes of parole. 

These findings are well supported by the record. 

This Court does not attempt to pass upon the validity of 

the appellant's argument that no designation under the former 
statute creates a presumption of nondangerousness. It is 

unnecessary to address this issue because of the District 

Court's nunc pro tunc order. 

Accordingly, we affirm the District Court. 

We Concur: -r