No. 95-143 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

DONALD MARTIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell G. Fagg, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly J. Varnes; Hendrickson, Everson, Noenning & 

Woodward, Billings, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Cregg Coughlin, Ass't Attorney General, 

Helena, Montana 

Submitted on Briefs: June 29, 1995 

Decided: July 25, 1995 
Justice Karla M. Gray delivered the Opinion of the Court. 

Donald Martin (Martin) appeals from the Judgment and 

Commitment entered by the Thirteenth Judicial District Court, 

Yellowstone County, on its Order Revoking Suspended Sentence. We 

affirm. 

Martin pled guilty to the offense of felony assault in 

November of 1993. The District Court sentenced him to five years' 

imprisonment in the Montana State Prison, suspended the entirety, 

and placed him on probation on certain terms and conditions. 

The State of Montana (State) subsequently petitioned for 

revocation of the suspended sentence. After a hearing on the 

petition, the District Court found that Martin had violated the 

terms and conditions of his probation and revoked the suspended 

sentence. The court resentenced Martin on the original assault 

conviction, committing him to the director of the Department of 

Corrections and Human Services (Department), pursuant to § 46-14- 

312, MCA, for placement in a community-based program or facility or 

a State correctional institution for five years. Martin appeals. 

Did the District Court abuse its discretion in revoking 

Martin's suspended sentence? 

Upon the filing of a petition for revocation showing probable 

cause that the defendant has violated a condition of a suspended 

sentence, a district court may set a hearing on revocation. 

Section 46-18-203(l), MCA. The State has the burden of proving a 

violation by a preponderance of the evidence. Section 46-l&?- 

203(6), MCA. If the court finds that the defendant violated the 

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terms and conditions of the suspended sentence, the court has a 

range of options, including revoking the suspended sentence and 

requiring the defendant to serve the original sentence imposed or 

any lesser sentence. Section 46-18-203(7), MCA. 

The decision to revoke a suspended sentence cancels a prior 

act of grace and is a matter within the district court's 

discretion. State v. Kern (1984), 212 Mont. 385, 388, 695 P.2d 

1300, 1301. The court need only find the existence of a violation 

of a term or condition of the suspended sentence; all that is 

necessary is that the court be reasonably satisfied from the facts 

of record that the probationer's conduct "has not been what he 

agreed it would be if he were given liberty." State v. Lundquist 

(1992), 251 Mont. 329, 331, 825 P.2d 204, 206 (citation omitted); 

§ 46-18-203(7), MCA. Our standard of review is whether the 

district court abused its discretion. Lundquist, 825 P.2d at 206. 

At the time the petition to revoke Martin's suspended sentence 

was filed, Martin had been charged with--and convicted of--a number 

of misdemeanor offenses committed in Billings on May 7 and July 3, 

1994; the offenses included obstructing, driving without a driver's 

license, DUI, and no vehicle insurance. Later that year, he went 

to Great Falls with the permission of his probation officer and, 

while there, was arrested and charged with felony assault. 

At the revocation hearing, Martin's probation officer 

testified to the convictions on the Billings charges; Martin did 

not dispute those convictions. The probation officer also 

testified that the Great Falls charge against Martin had been 

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dismissed. 

The District Court found that the Billings convictions 

violated State Rule #8, a condition of Martin's suspended sentence 

requiring that he comply with all federal and State laws. The 

uncontroverted evidence supports the court's finding. 

Martin argues that there was insufficient evidence to support 

the revocation because his probation officer stated, after the 

Billings convictions, that he did not consider those convictions 

serious enough to warrant a petition for revocation. Indeed, the 

probation officer so testified at the hearing. He testified, in 

addition, that it was the Great Falls arrest that prompted him to 

seek the revocation and agreed that the Great Falls charge had been 

dismissed. Martin's argument of insufficient evidence to support 

the revocation is premised on the dismissal of the Great Falls 

charge which had prompted the probation officer to seek the 

revocation. 

Martin's argument is unpersuasive in light of the Billings 

convictions. That those convictions did not cause the probation 

officer to seek revocation does not equate to an absence of 

sufficient evidence to support the District Court's finding that 

Martin violated the condition requiring him to obey the law. 

Indeed, as set forth above, the convictions are undisputed and, 

under both § 46-18-203, MCA, and Lundauist, they constitute a 

sufficient basis for revocation. Thus, we conclude that the 

District Court did not abuse its discretion in revoking Martin's 

suspended sentence. 

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Did the District Court err in referencing § 46-14-312, 

MCA, in resentencing Martin? 

At the revocation hearing, Martin's probation officer 

testified to his concerns over Martin's mental condition. He 

stated his beliefs that Martin needed help mentally and the only 

way Martin could receive that help would be in an institution; that 

way, according to the probation officer, the director of the 

Department could have Martin evaluated at Warm Springs. Martin did 

not object to the testimony. 

The District Court agreed with the probation officer's 

assessment, stating that it was in Martin's best interest to be 

evaluated at Warm Springs in order that appropriate help could be 

provided to him. The court's Judgment and Commitment ordered 

Martin committed to the director of the Department pursuant to § 

46-14-312, MCA, for placement for a term of five years. Martin 

appeals, asserting that reliance on § 46-14-312, MCA, renders the 

sentence unlawful. 

The State argues that, absent objection to the probation 

officer's testimony, Martin waived his right to appeal this issue 

under § 46-20-104(2), MCA. While the State is correct that the 

failure to object ordinarily would preclude our review, we have 

created a limited exception regarding review of a sentence alleged 

to be illegal or exceeding statutory mandates. See State v. 

Lenihan (1979), 184 Mont. 338, 602 P.2d 997. We apply that 

exception here. 

Section 46-14-312, MCA, to which the District Court referred 

in its Judgment and Commitment, relates to sentencing a defendant 

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who claims that, at the time of the offense of which convicted, he 

was suffering from a mental disease or defect. See §§ 46-14-311 

and 46-14-312, MCA. Martin did not raise such a claim here; the 

probation officer merely expressed concerns regarding Martin's 

mental condition during the revocation hearing. That testimony did 

not relate to Martin's mental condition at the time of the May and 

July, 1994, offenses upon which the revocation ultimately was 

premised or at the time of the original assault offense; in any 

event, the probation officer's testimony does not provide a 

sufficient basis for a determination of mental disease or defect. 

As a result, it is clear that the District Court erred in referring 

to § 46-14-312, MCA, in its Judgment and Commitment. We conclude 

that the statutory reference must be stricken from the Judgment and 

Commitment. 

Pursuant to § 46-20-701(l), MCA, however, we do not reverse a 

court based on error unless the error was prejudicial. Once the 

Judgment and Commitment is modified to delete the reference to § 

46-14-312, MCA, Martin essentially is left with the five-year 

sentence originally imposed for the felony assault conviction, with 

credit for time served and discretion in the Department director 

regarding his placement. 

Such a sentence is authorized under § 46-18-203, MCA, which 

permits a district court--on revocation--to reimpose the original 

sentence or any lesser sentence. Moreover, it is clear that this 

Court may modify a judgment from which appeal is taken, rather than 

reversing and remanding for further proceedings. See § 46-20- 

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703(l), MCA. We conclude that, under the District Court's Judgment 

and Commitment as modified by this Court, Martin has not 

established prejudice affecting his substantial rights so as to 

require reversal. 

The District Court's Judgment and Commitment is modified to 

strike the reference to § 46-14-312, MCA, and is affirmed in all 

other respects. 

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company.