IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsRICHARD HANNERS, 

Defendant and Respondent. 

SEP 8 19%& 

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. Marc Racicot, Attorney General, 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, 1992 
Justice 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 filed with 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 

statutory provisions mandating participation by the prosecution in 

a sentencing hearing conducted in open court. 

On December 12, l99O, an information was filed in the District 

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 Hanners pled not guilty to 

the charged offense at his arraignment on January 16, 1991. 

However, Hanners moved the court to withdraw his not guilty plea on 

April 17, 1991, and he subsequently pled 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 

sentenced to twenty years1 imprisonment in the Montana State Prison 

2 
with ten years suspended. The court also imposed a fine of 

$25,000. A written judgment reflecting the conviction and sentence 

was filed by the District Court on May 31, 1991. 

In early June 1991, Department personnel from the Intensive 

Supervision Program (the ISP) met with the District Court Judge and 

presented their recommendation that the court amend its judgment 

and suspend Hannerst entire sentence on the condition that he 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 

requesting that the court reject the 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 

been well established in Montana once a valid judgment and sentence 
have been signed, the court imposing that sentence had no 

jurisdiction to vacate or modify it except as provided by statute. 

Rivera v. Eschler (1989), 235 Mont, 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 imprisonment be 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 sentencing authority 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 judgment prepared and subsequent signing and filing of that 

amended judgment was an improper exercise of the District Court's 
jurisdiction. The amended judgment is therefore null and void and 

should be declared stricken from the record and the matter returned 

to the District Court to enter a proper sentence under the existing 

law. 

While the second issue of whether the practice of parole and 

probation officers contacting a sentencing court ex ~arte and postjudgment for the purposes of obtaining approval to resentence a 

defendant violates statutory provisions mandating participation by 

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 issue will 

not be considered. 

The District Court is reversed and this cause is remanded with 

instructions consistent with this opinion. 

A 

We concur: I! 

Justices 
Justice Terry I?. Trieweiler dissenting. 

I dissent 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 as vrovided bv statute. What the majority fails 

to point out is that under the circumstances presented in this 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, in his discretion, order the prisoner placed 

under the jurisdiction of 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 jurisdiction of the Department of Institutions. That is 

exactly what he did. 

The defendant did not initiate his enrollment in the intensive 

supervision program. He was contacted by representatives from the 

Corrections Division of the Montana Department of Institutions who 

suggested the intensive supervision program as an alternative to 

incarceration at the State Prison. That program, which is intended 
to 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 

supervision includes electronic monitoring, unscheduled visits 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 probation during 

the duration of his sentence. 

The defendant agreed to be considered for the program 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 sentence was modified. 

After the sentence was 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, as provided for in 

5 46-18-203, MCA (1989). 

Now that he has fully complied with 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 which was 
requested 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 state had induced him to serve his 

sentence in a different manner. Estoppel arises when a party by 

his or its acts causes another in good faith to change his position 

to his detriment. Powers Mfg. Co. v. Leon Jacobs Entepises (1985) , 216 Mont. 

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, this defendant is being requiredto serve two sentences 

for the same crime. 

The majority opinion is, to say the least, a strange and 

unfair result. 

For these reasons, I dissent.