file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm

No. 00-263 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 170 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

AUDREY A. WALKER,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-Second Judicial District, 

In and for the County of Big Horn,

The Honorable Blair Jones, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James L. Vogel, Attorney at Law, Hardin, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana 

Christine A. Cooke, Big Horn County Attorney; Curtis Bevolden,

Deputy County Attorney, Hardin, Montana

Submitted on Briefs: August 17, 2000 

Decided: August 23, 2001 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm (1 of 6)1/19/2007 10:48:37 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm

Filed:

__________________________________________

Clerk

Chief Justice Karla M. Gray, delivered the Opinion of the Court.

¶1 Audrey Walker (Walker) appeals from an order entered by the Twenty-Second Judicial 

District Court, Big Horn County, revoking her probationary sentence. We affirm.

¶2 The issue on appeal is whether the District Court erred in rejecting Walker's 

constitutional challenge to § 61-8-731, MCA, on double jeopardy grounds when it revoked 

her probation and committed her to the Department of Corrections for the remainder of the 

original probationary period.

BACKGROUND

¶3 In June of 1998, Walker was sentenced to six months in prison, to be followed by two 

years of supervised probation, for a felony driving under the influence of alcohol (DUI) 

conviction; in addition, she was fined $1,000. Walker was released from confinement in 

October of 1998, at which time her two-year probationary sentence began. 

¶4 In December of 1999, based on a Report of Violation of conditions of probation, the 

Big Horn County Attorney filed a Petition for Revocation. Walker appeared before the 

District Court and admitted violating her probation by failing to comply with numerous 

laws, failing to report these violations to her probation officer and consuming alcohol. 

¶5 During the revocation proceedings, Walker argued she could not be incarcerated for 

probation violations, since she had served the entirety of her six-month prison term. Under 

her theory, any additional commitment to the Department of Corrections (DOC) would 

constitute multiple punishments for the same offense, thereby violating constitutional 

prohibitions against double jeopardy. 

¶6 After briefing by the parties, the District Court determined incarceration imposed as a 

consequence of Walker's probation violations would not constitute double jeopardy, 

revoked her probation and committed her to the DOC for the time remaining on her 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm (2 of 6)1/19/2007 10:48:37 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm

original two-year probation. Walker appeals.

STANDARDS OF REVIEW

¶7 We review a district court's conclusions of law to determine whether they are correct.

School Trust v. State, ex rel. Bd. Com'rs, 1999 MT 263, ¶ 11, 296 Mont. 402, ¶ 11, 989 

P.2d 800, ¶ 11 (citation omitted). Under the Montana Constitution, courts are vested with 

the exclusive power to construe and interpret acts of the Legislature, as well as provisions 

of the Constitution; inherent in that power is the responsibility to determine whether a law 

conforms to the Constitution. State v. Guillaume, 1999 MT 29, ¶ 14, 293 Mont. 224, ¶ 14, 

975 P.2d 312, ¶ 14 (citations omitted). Statutes are presumed to be constitutional and a 

party challenging the constitutionality of a statute bears the burden of proving it 

unconstitutional beyond a reasonable doubt. Any doubt is to be resolved in favor of the 

statute. School Trust, ¶ 11 (citations omitted).

DISCUSSION

¶17 Did the District Court err in rejecting Walker's constitutional challenge to § 61-8-731, 

MCA, on double jeopardy grounds when it revoked her probation and committed her to 

the DOC for the remainder of the original probationary period?

¶18 Walker was sentenced on her felony DUI conviction pursuant to § 61-8-731, MCA, 

which provides in pertinent part:

(1) On the fourth or subsequent conviction [of DUI] the person is guilty of a felony and 

shall be punished by: 

(a) imprisonment for a term of not less than 6 months or more than 13 months, for 

which the imposition or execution of the first 6 months may not be suspended, and 

during which the person is not eligible for parole; 

(b) probation for a term of not less than 1 year or more than 4 years; and (c) a fine of 

not less than $1,000 or more than $10,000.

. . . . 

(3) The sentencing judge may impose upon the defendant any reasonable restrictions 

or conditions during the period of probation . . . .

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm (3 of 6)1/19/2007 10:48:37 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm

. . . .

(5) If a violation of the restrictions or conditions of the probation is established, the 

court may continue the period of probation or may require the defendant to serve the 

remainder of the probation sentence in [a state prison or other correctional facility].

As set forth above, the sentencing court sentenced Walker under all three subsections of § 

61-8-731(1), MCA, by imprisoning her for the minimum term of 6 months, placing her on 

probation under specified conditions thereafter for 2 years, and fining her $1,000. Upon a 

later determination that Walker violated the terms of her probation, the District Court 

required her to serve the remainder of her probationary sentence under a commitment to 

the DOC pursuant to § 61-8-731(5), MCA.

¶10 Walker concedes that § 61-8-731, MCA, authorized her original sentence, the 

revocation of her probation and her commitment to the DOC to serve the remaining 

probation time. She contends, however, that the statute is unconstitutional as applied to 

her. We address her arguments in turn.

¶11 Walker argues first, although not with particular clarity, that there is a distinction 

between the revocation of a suspended sentence and the revocation of a probationary 

sentence. While acknowledging our cases rejecting double jeopardy arguments in relation 

to the revocation of suspended sentences, she maintains those cases--which interpret § 46-

18-203, MCA, providing for the revocation of suspended or deferred sentences--"do not 

support the action taken here." 

¶12 In State v. Lange (1989), 237 Mont. 486, 775 P.2d 213, we considered whether the 

revocation of a suspended sentence pursuant to § 46-18-203, MCA, for violations of 

probationary conditions implicated constitutional double jeopardy concerns. In holding 

that the revocation of a suspended sentence does not violate rights against double 

jeopardy, we determined that the subsequent conduct, not the original offense, forms the 

basis for revocation and the sentencing court "retains jurisdiction over defendant during 

the period of probation." Lange, 237 Mont. at 489, 775 P.2d at 215 (citations omitted). 

These principles appear equally applicable in the present case notwithstanding that we 

addressed § 46-18-203, MCA, there and Walker challenges § 61-8-731, MCA, here. Like 

§ 46-18-203, MCA, § 61-8-731(5), MCA, provides by its terms for incarceration upon 

violation of conditions of probation. Furthermore, the revocation in both situations is not 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm (4 of 6)1/19/2007 10:48:37 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm

new punishment for the criminal offense, it constitutes the consequence of violating 

probationary conditions. Thus, while Walker argues for a distinction for double jeopardy 

purposes between revocation based on a suspended or deferred sentence under § 46-18-

203, MCA, and revocation based on a legal probationary sentence under § 61-8-731, 

MCA, she fails to explain how such a distinction might manifest itself or provide any 

authority for such a distinction. She appears to suggest that a court must stand idly--and 

futilely--by while a probationer violates conditions of probation. No cited authority 

compels such a result. 

¶13 Walker next argues that the additional period of incarceration resulting from her 

probation violations constitutes double jeopardy under our decision in Guillaume, because 

she received two sentences for the same offense. We disagree. 

¶14 There, the defendant was sentenced to 10 years in prison for committing the offense of 

felony assault, a statutory element of which is the use of a weapon. His sentence was 

enhanced by 5 years pursuant to a statute providing for such an additional sentence upon a 

conviction of an offense in which the person knowingly uses a dangerous weapon. 

Guillaume, ¶ 9. The defendant argued on appeal that the weapon enhancement statute was 

unconstitutional as applied to him because he received two sentences for the use of a 

weapon, thereby violating the double jeopardy prohibition in Article II, Section 25 of the 

Montana Constitution by imposing multiple sentences for the same act of using a weapon. 

See Guillaume, ¶¶ 10, 12. We agreed, determining he was subjected to double punishment 

for use of a weapon. Guillaume, ¶¶ 16, 18.

¶15 Walker contends that, like the defendant in Guillaume, her right against double 

jeopardy has been violated in the present case. She argues that the only difference between 

her situation and that in Guillaume is that, there, the "double sentence" was imposed at the 

time of the original sentence and, here, the alleged "double sentence" was imposed at the 

time her probationary sentence was revoked nearly two years later. Walker fails to 

recognize, however, that the very basis for our conclusion in Guillaume was the double 

sentence that defendant received for the same act, the use of a weapon. It was that double 

punishment that violated the constitutional prohibition against double jeopardy. The 

revocation of Walker's probationary sentence for violations of conditions of probation is 

not a second punishment for her original DUI offense; the revocation is the consequence 

of her later acts of violating probation conditions. 

¶16 Walker bears the burden of proving § 61-8-731, MCA, unconstitutional beyond a 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm (5 of 6)1/19/2007 10:48:37 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm

reasonable doubt as applied to her. See School Trust, ¶ 11 (citations omitted). She has not 

met her burden. We hold, therefore, that the District Court did not err in rejecting Walker's 

constitutional challenge to § 61-8-731, MCA, on double jeopardy grounds when it revoked 

her probation and committed her to the DOC for the remainder of the original 

probationary period.

¶17 Affirmed. 

/S/ KARLA M. GRAY

We concur:

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-263%20Opinion.htm (6 of 6)1/19/2007 10:48:37 AM