IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Appellant,

-vsRICHARD HANNERS, Defendant and Respondent. 

### SEP 

### 819%&

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Ravalli, The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: Hon. MarcRacicot,AttorneyGeneral,Helena,Montana George Schunk, ~ssistant Attorney General, Helena, Montana George Corn, Ravalli County Attorney, Hamilton, Montana For Respondent: Mark Connell, Connell, Beers and Alterowitz, Missoula, Montana For Amicus Curiae: James 3. Obie, Legal Counsel, Department of Corrections and Human Services, Helena, Montana

Filed: Submitted 

### on Briefs: May 21, 1992 ~ecided: September 8, 1992Justice John Conway Harrison delivered the Opinion of the Court.

This is 

### an appeal from the District Court of the Fourth Judicial District, State of Montana, in and for the County of Ravalli. The State of Montana appeals the District Court's June 28, 1991 order and subsequent Amended Judgment of July 10, 1991. We reverse. Two issues are presented for our consideration: 1. 

### Whether the District Court 

### had jurisdiction to amend 

### a sentence and judgment after it had been pronounced in court, reduced to writing and filedwith the clerk of court. 2. Whether the practice of parole and probation officers contacting a sentencing court 

### ex parte and post-judgment for the purposes of obtaining approval to resentence a defendant violates statutoryprovisions mandating participationby theprosecution in

a sentencing hearing conducted in open court. On December 12,l99O, an informationwas filed 

### intheDistrict Court, Ravalli County, charging Richard E. Hanners (Hanners)with the crime of criminal possession with intent to sell, a felony, in violation of 5 45-9-103,MCA. Defendant Hannerspled not guilty to the charged offense at his arraignment on January 16, 1991. However, Hannersmoved the court towithdrawhis not guiltyplea on April 17, 1991, and he subsequentlypled guilty to the offense of criminal possession of marijuana with intent to sell. After a presentence investigation report was prepared, a sentencing hearing 

### was held on May 15, 1991, and Hanners was sentencedto twentyyears1imprisonmentin theMontana State Prison 2with ten years suspended. The court also imposed a fine of $25,000. Awritten judgment reflecting the convictionand sentence

was filed by the District Court on May 31, 1991. In early June 1991, Department personnel from the Intensive Supervision Program (theISP)met with the District CourtJudge and presented their recommendation that the court amend its judgment and suspendHannerstentire sentence on the condition thathe enter and successfully complete the ISP. The ISP is a program designed

as an alternative to prison incarceration operated by the Department of Institutions which has been in effect in several Montana counties for over two years. This recommendation by Department personnel (the Department) was done over the objection of the parole and probation officer of Ravalli County who made an intensive investigation of Hannerst marijuana growing operation prior to sentencing. Following this meeting, the Department contacted the Ravalli County Attorney and requested that he prepare, for the District Court Judge's signature, an amended judgment reflecting the suspension of Hannerst sentence pending participation in the ISP. At the time of the June 19, 1991, hearing on the amended judgment the County Attorney filed a motion requestingthat the court rejectthe Department's recommendation of suspending Hannersl original sentence. It is the position of the appellant, State, argued by the County Attorney, that once the District Court signed its May 15, 1991 sentence, it was without jurisdiction to amend 

### it. It has beenwell established inMontana once avalid judgmentand sentencehave been signed, 

### the court imposing that sentence had no jurisdiction tovacate or modify it except as provided by statute. Rivera

### v. Eschler (1989), 235Mont, 350, 767 P.2d 336; Petition of Arledge (1988), 232 Mont. 450, 756 P.2d 1169; Dahlman v. District Court, Seventeenth Judicial District (1985)

### , 215 Mont. 470, 698 P.2d 423. As of the time of the modification of the judgment by the District Court Judge, the only statutory provision that such modification could be done was under the post-conviction relief statute, 5 46-21-101, MCA. In addition, under a recently enacted provision applicable to sentencing effective after October 1, 1991,

an offender could petition a sentencing court for an order directing that his or her sentence of imprisonmentbe served under the conditions of home arrest. As was argued by the County Attorney to the District Court Judge, this provision is distinct from the ISP. At the date of this amended sentence, there was neither a statutory nor 

### an administrative rule providing for the modification of a sentence following the recommendation by 

### the Department for the ISP. While 

### 4 45-9-202(2) (d)

### , MCA (1991),now effective, does allow the sentencingauthority to designate at the time of sentencing the ISP program with provisions, such authority did not grant the District Court jurisdiction to modify a previously rendered sentence. We hold that the District Court's actions in ordering the amended judgmentprepared and subsequent signingand filing of that amended judgment was 

### an improper exercise of 

### the District Court'sjurisdiction. The amended judgment is thereforenull and void and shouldbe declared stricken from the record and thematter returned to the District Court to enter aproper sentenceunder the existing law. While the second issue of whether the practice of parole and probation officers contacting a sentencingcourt ex ~arte andpostjudgment for the purposes of obtaining approval to resentence a defendant violates statutory provisions mandating participationby the prosecution in a sentencing hearing conducted in open court is before us, we find that having determined that the District Court lacked jurisdiction to modify the sentence,this second issuewill not be considered. TheDistrictCourt is reversed and this cause isremandedwith instructions consistent with this opinion. 

### A

We concur: 

# I!

JusticesJustice Terry I?. Trieweiler dissenting. Idissent from the majority opinion. The majority states the rule of law correctly as far as it goes. A sentencing court has no jurisdiction to vacate or modify a sentence, excevt asvrovidedbv statute. What themajority fails topoint out is thatunder the circumstancespresented inthis case there was specific statutory authority for the District Court's modification of the defendant's sentence. Section 46-18-203,MCA (1989) (the form of that statute that

was in effect at the time that this sentence was modified), provided in relevant part as follows: (1) A judge 

# ...who has suspended the execution of a sentence 

# . . . of imprisonment under 46-18-201 

# . .

.may also, inhis discretion, order theprisonerplaced under the jurisdictionof the department of institutions as provided by law or retain such jurisdiction with his court. In this case, the District Court suspended part of the sentence which was imposed by written judgment on May 31, 1991. Therefore, pursuant to 46-18-203, MCA, the District Judge retained jurisdiction to, in his discretion, place the defendant under the jurisdictionof the Department of Institutions. That is exactly what he did. Thedefendantdid not initiatehis enrollment in the intensive supervisionprogram. He was contacted by representatives from the Corrections Divisionof the Montana Department of Institutionswho suggested the intensive supervision program as an alternative to incarcerationat the State Prison. Thatprogram, which is intendedto eliminate overcrowding at the prison while still punishing and supervising those who are convicted of crimes, provides for an eight or nine month incarceration in the defendant's home with intensive supervision by probation and parole officers. The supervisionincludes electronic monitoring, unscheduledvisits and searches, urinalysis, participation in employment counseling, and community service. At the end of the eight months of house incarceration, the defendant is placed on regular probationduring the duration of his sentence. Thedefendant agreed tobe considered for theprogram and the screening committee unanimously agreed to recommend him for placement in the program. A member of the committee advised the District Judge of this option. The prosecuting attorney was advised of the District Court's inclination to agree with 

### this option. The prosecuting attorney objected and a hearing was held before the sentencewas modified. After the sentencewas modified, defendant complied with the terms of the intensive supervision program. At all times during his compliance he was under the supervision, and therefore, jurisdiction of the Department of Institutions,asprovided for in 5 46-18-203, MCA (1989). Now that he has fully compliedwith the terms of the sentence that was requested by one state agency (Department of Institutions), he is being required to serve a second sentence because of the objection of a second state agency (County Attorney's Office). Because of the alternative sentence whichwasrequested by the Department of Institutions for the State of Montana, the defendant served eight months of house arrest and was denied the opportunity to have his prison sentence behind him by

now. Even if I did not conclude that the District Court had jurisdiction to modify the defendant's sentence pursuant to the aforementioned statute, I would conclude that one agency of the state is estopped from imposing a second sentence on the defendant after a different agency of the statehad induced him to serve his sentence in a different manner. Estoppel arises when a party by his or its acts causes another ingood faithto change hisposition to hisdetriment. Powers

### Mfg.Co.

### v.LeonJacobsEntepises (1985)

### ,216Mont. 407, 701 P.2d 1377. That is certainly what happened to the defendant in this case. Through no fault of his own, and based upon the majority's willingness to overlook the statutory basis for the District Court's continuing jurisdiction to do what it did in this case, incredibly,thisdefendant isbeing requiredtoserve two sentences for the same crime. The majority opinion is, to say the least, a strange and unfair result. For these reasons, Idissent.