DA 14-0534

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 106N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

MARK ALLEN BENJAMIN,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DC-2001-212

Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Carl B. Jensen, Jr., Attorney at Law, Great Falls, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant

Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Chief Deputy

County Attorney, Missoula, Montana

Submitted on Briefs: March 11, 2015

 Decided: April 14, 2015

Filed:

__________________________________________

Clerk

April 14 2015

Case Number: DA 14-0534
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by unpublished opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports.

¶2 Mark Allen Benjamin (“Benjamin”) appeals from the final judgment of the Fourth 

Judicial District Court, Missoula County, revoking his suspended sentence. The issue on 

appeal is whether the District Court erred when it denied Benjamin’s motion to dismiss 

the petition to revoke his suspended sentence. We affirm.

¶3 In November 2001, Benjamin pled guilty in Missoula County to felony 

theft-common scheme and nolo contendere to felony theft (DC 01-212). The Missoula 

District Court sentenced him to the Department of Corrections for ten years, with five 

years suspended, on the felony theft-common scheme charge and to the Montana State 

Prison for forty years, all suspended, on the theft charge. The District Court imposed the 

sentences concurrently and designated Benjamin a persistent felony offender. In March

2006, Benjamin discharged to the suspended portion of his sentence. Pursuant to the 

terms and conditions of the suspended sentence, Benjamin was required to remain law 

abiding. 

¶4 On December 5, 2013, Glacier County officials arrested Benjamin after he 

admitted to stealing grain from his employer. He was booked into the detention facility 
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at 2:30 p.m. and held on a probation hold for Missoula County case, DC 01-212. On 

December 6, 2013, the Glacier County Attorney charged Benjamin with four counts of 

Theft of Property by Embezzlement in violation of § 45-6-301(7)(a), MCA, and the 

District Court set bail at $250,000.

¶5 On December 20, 2013, the State filed a Petition to Revoke Benjamin’s suspended 

sentence in Missoula County, DC 01-212. The Petition alleged that Benjamin violated 

the terms of his suspended sentence when he embezzled more than $400,000 from his 

employer. Three days later, the Missoula District Court issued a bench warrant and set

bail at $10,000. 

¶6 At the end of December, the Glacier County District Court held a bail hearing and 

reduced Benjamin’s bond. Benjamin then posted bond and was released. Documents 

from both parties, filed in Missoula District Court, refer to the fact that Benjamin posted 

bail and was released, but conditions of the bail did not permit him to travel to Missoula.

On April 3, 2014, Benjamin filed a motion to dismiss the petition in Missoula District 

Court.

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¶7 On May 19, 2014, the District Court in Missoula County held a hearing and denied

Benjamin’s motion to dismiss. The District Court concluded that district courts 

commonly do not require a separate hearing when a new charge is filed the day after a 

defendant is detained on a probation hold and bond is set on the new charge. 

Additionally, the District Court rejected Benjamin’s contention that he was able to post 

 

1 Benjamin has confused some of the dates in his brief. The record reflects the correct 

dates as stated herein. 
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bond on the Glacier County charges, but was held on the Missoula County case. The 

District Court concluded that Benjamin was in court, with counsel, when bond was set in 

the Glacier County case and could have raised the matter at that time. 

¶8 In June 2014, Benjamin pled guilty to one count of embezzlement in Glacier 

County. On August 11, 2014, the Missoula District Court revoked Benjamin’s suspended 

sentence in DC 01-212 and sentenced him to the Montana State Prison. Benjamin

appeals. 

¶9 “We review a district court’s decision to revoke a suspended sentence for an abuse 

of discretion. A district court has statutory authority to revoke a suspended sentence 

under § 46-18-203(7), MCA.” State v. Martinez, 2008 MT 233, ¶ 15, 344 Mont. 394, 

188 P.3d 1034 (internal citations omitted). “The grant or denial of a motion to dismiss in 

a criminal case is a question of law which we review de novo.” State v. Goebel, 2001 

MT 73, ¶ 10, 305 Mont. 53, 31 P.3d 335 (citations omitted). 

¶10 A probationer can be taken into custody on allegations of a probation violation in 

two ways. Goebel, ¶ 18. A judge may issue a warrant for the offender’s arrest. Section 

46-23-1012(1), MCA. Alternatively, a probation officer may arrest the offender or 

authorize the arrest by another officer. Section 46-23-1012(2), MCA. When a probation 

officer authorizes the arrest, the offender may be held, without bail, for 72 hours. Section 

46-23-1012(3), MCA. Within 72 hours, the officer shall release the probationer, hold an 

intervention hearing, or “arrange for the probationer to appear before a magistrate to set 

bail.” Section 46-23-1012(3)(a)-(c), MCA. 
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¶11 According to Benjamin, he was not seen by a magistrate within 72 hours as 

required by § 46-23-1012, MCA. Glacier County officials arrested Benjamin and booked 

him on the probation hold on December 5, 2013. The next day, the Glacier County 

Attorney filed charges against Benjamin and the District Court set bail. The State filed

the Petition to Revoke Benjamin’s Missoula County suspended sentence on December

20, 2013.

¶12 The District Court did not err when it denied Benjamin’s motion to dismiss. 

Glacier County officials initially held Benjamin on a probation hold, pursuant to 

§ 46-23-1012(2), MCA. However, the next day he was charged with embezzlement and 

the Glacier County judge set bond. There is nothing in the record establishing, and 

Benjamin has failed to demonstrate, that the probation hold lasted longer than 72 hours

without bond or the opportunity to see a magistrate. Nothing in the record suggests that 

Benjamin tried to post bond on the Glacier County charges but was denied release due to 

a probation hold. In fact, the record shows that he did post bond and was released on 

bail. 

¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of 

the Court, the case presents a question controlled by settled law or by the clear 

application of applicable standards of review. The District Court’s interpretation and 

application of the law was correct. The District Court did not err in denying Benjamin’s 

motion to dismiss. 

¶14 Affirmed.
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/S/ MIKE McGRATH

We Concur:

/S/ LAURIE McKINNON

/S/ MICHAEL E WHEAT

/S/ BETH BAKER

/S/ JIM RICE