No. 81-340 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

AARON FELIX, Petitioner,

MEL MOHLER, DIRECTOR, SWAN RIVER YOUTH FOREST CAMP, FOR THE STATE OF MONTANA, Respondent.

ORIGINAL PROCEEDING:
For Petitioner: Patterson, Marsillo, Tornabene & Schuyler, Missoula, Montana
For Respondent: Hon. Mike Greely, Attorney General, Belena, Montana Edward L. McLean, Deputy CountyAttorney, Missoula, Montana

Submitted

### on Briefs: October 22, 1981 Decided: November 12, 1981

Filed: 

## NOV

## 12198f'Mr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court. Petitioner, Aaron Felix, applies for a 

### writof habeas corpus stemming from an order of the Fourth Judicial District Court entered on May 27, 1981. This order revoked a three year deferred sentence given petitioner on May 22, 1978 and imposed 

### a three and one-half year sentence atthe Montana StatePrison upon petitioner

# . Petitioner was convicted of theft, a felony, in the DistrictCourt of the Fourth Judicial District, Missoula County. On May 22, 1978, he was given a three year deferred imposition of sentence on the condition that restitution be made.On August 20, 1979, thisdeferred sentence 

### was continued and petitioner was ordered to complete restitution by November 5, 1980. Petitioner failed to comply with this order by November 5, 1980, and a petition torevoke petitioner's deferred sentence was filed on January 16, 1981. A hearing
on thispetition was held May 27, 1981, three years and five days after the initial deferral. Atthishearing, petitioner moved todismiss the proceeding

on the grounds that the District Court 

### was without jurisdiction. The DistrictCourt overruled petitioner's objection concluding that the Court retains 

### "

# . . 

# . jurisdiction (when) the petition 

### is filedwithin the (deferral)time." The DistrictCourt sentenced petitioner to three and one-half years inthe Montana StatePrison. Petitioner has been incarcerated since, either atthe Montana StatePrison
or the Swan River Youth Forest Camp. Petitioner 

### raises the following issue: 1) Whether a DistrictCourt retains jurisdiction to revoke a deferred imposition of sentence beyond the 

### time period of deferral if a petition to revoke 

### is timely filed?In Statev. Porter (1964), 143Mont. 528, 540, 541, 391 P.2d 704, 711, this Court stated that: 

### "[tlhis state

### is committed to the doc

### trine that once a valid sentence has been pronounced, the court imposing the same 

### is lacking injurisdiction to vacate or modify the sentence, except

# as otherwise provided 

### - by statute

# .

# . ." (Emphasis added.) Section 46-18-203, MCA, is a specific procedural statute granting judges, magistrates, or justices of the peace authority to revoke a suspended sentence or impose sentence following a deferred imposition of sentence. Section 46-18- 203, MCA, provides: "Revocation of suspended or deferred sentence. A judge, magistrate, or justice of the peace who has suspended the execution of 

### a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201 or his successor 

### is authorized, during 

## - the period of 

## the suspended sentence or deferred imposition of sentence, 

## his - discretion, 

## to revoke 

## - the suspension 

## - or impose sentence and order

## the person 

### Emitted. Hemay also, inhis discretion, order the prisoner placed under the jurisdiction of the board of pardons 

### as provided by law or retain such jurisdiction with his court. Prior to the revocation of an order suspending or deferring the imposition of sentence, the person affected shall be given a hearing." (Emphasis added.) This authoritymust be exercised inaccordancewith the precise provisions of this section; action by a judge, magistrate, or justice of the peace outside the provisions of Section 46-18-203, MCA, iswithout jurisdiction. State y. Porter, supra. The controlling language inSection 46-18-203, MCA, is 

# ".

.

# . during the period of such suspended sentence or deferred imposition of sentence. 

# . ." Determining the meaning of this phrase disposes of thispetition. It

### iswell settled that if a

# ".

. . statute isplain,unambiguous, direct and certain, the statute speaks for itself and there 

### isnothing leftfor the court to construe." Shannon v. Keller (1980), Mont. 

## , 612 P.2d 1293, 1294, 37 St. Rep. 1079, 1081. Such 

### is the case before this Court. The words "during the period" are extremely plain and unambiguous. The clear import 

### is that a court isvested with jurisdiction torevoke a suspended ordeferred sentence only during the running of the suspended or deferred sentence. Once such time has expired a court 

### iswithout jurisdiction to decide petitions for revocation filed by the State. The Staterequests thisCourt to construe Section 46- 18-203, MCA, to mean that a timely filedpetition for revocation vests jurisdiction inthe Court, regardless whether the hearing on such petition isheld after the suspended or deferred sentence has expired. The State relies on decisions from Nevada and Oklahoma in support of this contention. See Sherman v. Warden, Nevada StatePrison (1978) Nev. 

## , 581 P.2d 1278; Degraffenreid v. State (1979), 0k.Cr. 

## , 599 P.2d 1107. These authorities arenot inpoint. Nevada and Oklahoma have statutoryprovisions which vestjurisdiction inthe courts for purposes of revocation of suspended or deferred sentences upon the filing of a petition for revocation. Therefore a timely filedpetition of revocation in these statesvests jurisdiction incourts when the 

### timeof the suspended or deferred sentence has run. Montana

## 's statutepertaining torevocations of suspended
or deferred sentences, Section 46-18-203, MCA, contains no language stating that a timely filedpetition for revocation invokes a court's jurisdiction over thesematters. Itis axiomatic that this Court cannot insertwhat the legislaturehas not statutorily included. Section 1-2-101, MCA. In conclusion, 

### we hold that Section 46-18-203, MCA, grants jurisdiction tojudges, magistrates, or justices of the peace to revoke suspended sentences or impose sentences following deferred sentences only during the period of the suspended or deferred sentences. This jurisdiction extends only through the running of the suspended or deferred sentence, regardless of whether a petition for revocation has been filedprior to the termination of the suspended or deferred sentence. Therefore, petitioner's request for a Writof Habeas Corpus isgranted. It

### ishereby ordered that such 

### writ issue immediately and thatpetitioner be discharged from the custody of the Swan River Youth Forest Camp.

We concur:

Chief Justice