No. 88-415 

88-422 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 88-415 

KIM RIVERA, 

Petitioner and Respondent, 

-vsJANET E. ESCHLER, Justice of the Peace, 

Justice Court, YELLOWSTONE COUNTY, 

MONTANA, 

Respondent and Appellant. 

NO. 88-422 

STATE, ex rel., TERRY VUKASIN, 

Plaintiff and Respondent, 

-vsTHE JUSTICE COURT OF YELLOWSTONE COUNTY, 

MONTANA, and JANET E. ESCHLER, JUSTICE OF 

THE PEACE, 

Defendants and Appellants. 

APPEAL FROM: The District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harold Hanser, County Attorney, David Hoefer, Deputy, 

Billings, Montana (88-415 & 88-422) 

For Respondent: 

Scott Gratton; Anderson, Brown Law Firm, Billings, 

Montana (88-415) 

Addison Sessions; Thompson & Sessions, Billings, 

cy Wontana (88-422) 

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Submitted: December 9, 1988 

Decided: January 10, 1989 

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-.- c7r -- ED SMITH 

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. --L Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case comes to us from the issuance of a writ of 

certiorari by the Honorable Robert Holmstrom, Thirteenth 

Judicial District Court, Montana, annulling an order entered 

by the appellant, Janet Eschler, Justice of the Peace, 

Yellowstone County. We affirm. 

On September 23, 1986, the respondent, Kim Rivera, was 

found guilty of driving a motor vehicle under the influence 

of alcohol. Appellant Janet Eschler, Yellowstone County 

Justice of the Peace, sentenced the respondent to a one-year 

suspended sentence, imposed a fine of $400, required 

respondent to complete the Rimrock Foundation DUI school and 

"treatment as necessary." At the completion of counseling, 

respondent engaged in an exit interview. On the basis of the 

interview, Rimrock Foundation counselors recommended the 

respondent enroll in an inpatient treatment facility. On 

February 4, 1987, appellant ordered the respondent to fol-low 

the recommendations of the counselor at the Rimrock 

Foundation and perform the following: 

(a) That the defendant enroll in a 

licensed chemical dependency center; 

(b) That the defendant abide by all 

aftercare recommendations made by the 

facility upon completion of treatment; 

(c) That the defendant abstain from all 

use of alcohol and drugs; 

(d) That the defendant appear before 

this court on February 9, 1987, at 4:30 

p.m. At this time defendant shall state 

to the court the place and date of his 

treatment enrollment. All arrangements 

must be made by said date or cause a 

warrant to be issued, and defendant 

incarcerated. 
The respondent petitioned the District Court to exercise 

certiorari. On May 26, 3988, District Court Judge Holmstrom 

annulled the order, finding appellant lacked jurisdiction to 

modify the initial sentence. 

The facts and procedure in~rolving the second 

respondent, Terry Vukasin, are directly analogous to the 

Rivera case. Pursuant to a sentencing order dated November 

30, 1987, Vukasin completed an alcohol treatment program. On 

January 21, 1988, Justice Eschler directed Vukasin to follow 

recommendations of Rimrock Foundation counselors, enroll in a 

licensed chemical dependency treatment center and attend 

aftercare treatment. On June 20, 1988, District Court Judge 

G. Todd Baugh deferred to Judge Holmstrom's decision in the 

Rivera case and directed the January 21, 1988 order annulled. 

The appellant's motion for consolidation acknowl.edges the 

analogous nature of the two cases. 

Appellant presents a single issue on appeal: 

1. Did Justice of the Peace Eschler have 

jurisdiction, pursuant to section 

61-8-714(4), MCA, to order respondents, 

both convicted of the offense of driving 

under the influence of alcohol, to enroll 

in a licensed chemical dependency center, 

to abstain from all use of alcohol and 

drugs, and to abide by all aftercare 

recommendations made by the facility upon 

the completion of treatment? 

In addition, respondents question the constitutionality 

of the orders, alleging a violation of their due process 

rights by the disallowance of a hearing and counsel prior to 

sentencing. Because this appeal can be decided solely on the 

question of statutory authority, we need not address 

respondents' constitutional argument. 

Section 61-8-714, MCA, provides in pertinent part: 

61-8-714. Penalty for driving under the 

influence of alcohol or drugs. (I) A 
person convicted of a violation of 

61-8-401 shall be punished 

imprisonment in the county jail for not 

less than 24 consecutive hours or more 

than 60 days, and shall be punished by a 

fine of not less than. $100 or more than 

$500 . . . 

(4) In addition to the punishment 

provided in this section, regardless of 

disposition, the defendant shall complete 

an alcohol information course at an 

alcohol treatment program approved by the 

department of institutions, which may 

include alcohol or drug treatment, or 

both, if considered necessary by the 

counselor conducting the program. Each 

counselor providing such education or 

treatment shall, at the commencement of 

the education or treatment, notify the 

court that the defendant has been 

enrolled in a course or treatment 

program. If the defendant fails to 

attend the course or the treatment 

program, the counselor shall notify the 

court of the failure. 

Appellant contends the language of § 61-8-714(4), MCA, allows 

for continuing authority to modify respondents' sentences, 

claiming the subsequent order is necessary to enforce the 

sentencing statute. This Court does not agree with 

appellant's interpretation. 

This Court has consistently held that " [olnce a valid 

sentence has been pronounced, the court imposing the same is 

lacking in jurisdiction to vacate or modify the sentence, 

except as otherwise provided by statute. . ." State v. 

Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711; 

Wilkinson v. State (1983), 205 Mont. 237, 667 P.2d 413. For 

example, we found such specific authorization in S 46-18-203, 

MCA, previously 95-2206, RCM (1947) : 
[A] judge, magistrate, or justice of the 

peace who has suspended the execution of 

a sentence or deferred the imposition of 

a sentence of imprisonment under 

46-18-201 . . . is authorized in his 

discretion to revoke the suspension or 

impose a sentence and orderLthe person 

committed. He 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 the 

court. . . (Emphasis added.) 

The plain meaning of the statute gave the district court 

three mutually exclusive alternatives for handling a 

defendant who violated the terms of his probation, and could 

thereby modify the sentence. State v. Downing (1979), 181 

Mont. 242, 593 P.2d 43. "While [the alternatj-ves] give the 

District Court some latitude in dealing with probation 

violators, they do not vest the court with completely 

unbridled discretion." Downing, 593 P.2d at 45. The 

explicit authorization necessary to modify the original 

sentence is notably absent in the present case. 

Section 61-8-714, MCA, contemplates all punishment and 

treatment he contained in the original order. Any other 

interpretation, we believe, would amount to an improper 

exercise of jurisdiction. Therefore, we conclude that upon 

imposition of the valid sentence, the appellant' s aut-hority 

to vacate or modify the sentence ceased. 

Affirmed. 

A 
We concur: 

A 

ief Justice