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No. 99-156 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 18 

298 Mont. 135

995 P. 2d 963

STATE OF MONTANA, 

DEPARTMENT OF CORRECTIONS,

Plaintiff and Appellant, 

v.

BILLIE JOE PHELPS, a/k/a BILLIE JOE

NEWTON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

Honorable Marge Johnson, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

David L. Ohler and Diana Leibinger-Koch, Special Assistant

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Attorneys General, Helena, Montana 

For Respondent:

Ronald L. Bissell, Public Defender's Office, Great Falls, Montana

Submitted on Briefs: December 29, 1999 

Decided: January 27, 2000

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1.Billie Joe Phelps was sentenced in the Eighth Judicial District Court, Cascade County, 

for his fourth offense of driving under the influence of alcohol (DUI) and driving while his 

license was suspended or revoked. On appeal, the Department of Corrections argues that 

the District Court failed to comport with the applicable DUI sentencing law pursuant to § 

61-8-731, MCA (1997). We remand Phelps's sentence to be modified according to our 

holding in this opinion.

¶2.We restate the issues as follows: 

¶3. Does § 61-8-731, MCA (1997), permit the District Court to suspend any of Phelps's 

imprisonment term?

¶4. Does the District Court have statutory authority to award Phelps double credit for time 

served when he completes a treatment program?

¶5. Can the District Court order Phelps committed to a prerelease program or intensive 

supervision?

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FACTUAL AND PROCEDURAL BACKGROUND

¶6.The District Court originally sentenced Phelps for his fourth DUI offense, but after it 

realized that Phelps committed this offense on the day § 61-8-731, MCA (1997), became 

effective the District Court re-sentenced him on December 22, 1998, pursuant to the new 

law. Consequently, the District Court imposed the following sentence:

The Defendant is sentenced to 13 months of incarceration with the Department of 

Corrections, with all time SUSPENDED, except time served, which the Court believes to 

be 227 days, plus Four Years of probation with the Department of Corrections. He must 

enter and complete an appropriate treatment program. The Court believes inpatient 

chemical dependency treatment is probably most appropriate. Upon successful completion 

of treatment and follow up aftercare and relapse prevention, the Court will give him 

DOUBLE CREDIT for time served in treatment. Once he completes treatment, the 

Defendant shall enter and complete either a Pre-Release Program or an ISP. The 

Defendant must report daily to his supervising officer and abide by a 6:00 p.m. to 7:30 a.

m. curfew until he is accepted into treatment.

¶7.The Department of Corrections contends that this sentence does not comport with § 61-

8-731, MCA (1997).

STANDARD OF REVIEW

¶8.Although the State never raised the issue of whether Phelps's sentence comports with 

the new law, this Court may review any sentence imposed in a criminal case if it is alleged 

that the sentence is illegal or exceeds its statutory mandates. See Petition of Hans, 1998 

MT 7, ¶ 36, 288 Mont. 168, ¶ 36, 958 P.2d 1175, ¶ 36. Our review is limited to questions 

of legality and whether the sentence is within the parameters provided by the statute. See 

Hans, ¶ 36. This is a question of law, which we review to determine if the District Court's 

interpretation is correct. See State v. Long (1995), 274 Mont. 228, 236, 907 P.2d 945, 950. 

ISSUE 1

¶9.Does § 61-8-731, MCA (1997), permit the District Court to suspend any of Phelps's 

imprisonment term?

¶10.Section 61-8-731, MCA (1997), provides:

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(1) On the fourth or subsequent conviction under 61-8-714 or 61-8-722 for a violation of 

61-8-401 or 61-8-406, the person is guilty of a felony and shall be punished by:

(a) imprisonment for a term of not less than 6 months or more than 13 months, the 

imposition or execution of which may not be suspended, and during which the person is 

not eligible for parole.

(Emphasis added.)

¶11.Where the language of a statute is clear and unambiguous, we interpret the statute by 

its plain meaning. See Howell v. State (1994), 263 Mont. 275, 284, 868 P.2d 569, 573. 

This statute unambiguously states that the District Court cannot suspend any time of 

imprisonment; therefore, the District Court must strike the language from Phelps's 

sentence regarding the time suspended. 

¶12.The Department of Corrections suggests that Phelps should instead be sentenced to 

incarceration for 227 days, which he already has served. This would satisfy the 6-month to 

13-month requirement of the statute and, in effect, produce the same result as suspending 

Phelps's sentence. However, a determination of this matter is not appropriate on this 

appeal.

ISSUE 2

¶13.Does the District Court have statutory authority to award Phelps double credit for time 

served when he completes a treatment program?

¶14.Central to the parties' disagreement on this issue is whether Phelps's participation in a 

treatment program is part of his incarceration or part of probation. As the Department of 

Corrections points out, the District Court has no statutory authority to award additional 

credit for the time a defendant serves on probation. It discerns that the only statute which 

allows the court to give a defendant credit aside from the actual days a defendant serves is 

§ 46-18-403, MCA, which provides that the court must give a defendant "against whom a 

judgment of imprisonment is rendered . . . credit for each day of incarceration prior to or 

after conviction." Although Phelps does not cite this or any other statute to justify his 

sentence, he argues that he should be awarded double credit because his participation in a 

treatment program is part of his incarceration.

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¶15.Phelps argues that incarceration is defined by more than just a place and that we 

should consider the surrounding circumstances. On this basis, he informs us that he 

participated in an inpatient treatment program in which he was transferred pursuant to jail 

transfer policies from the Cascade County Detention Center to the Montana Chemical 

Dependency Center and then back to the detention center, where he was given double 

credit for the time he served and then released. He asserts that he was in effect on inmate 

status because had he left the Montana Chemical Dependency Center the proper 

authorities would have been notified and he would have faced an escape charge. His 

assertion is based on our holdings in State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, 

State v. Savaria (1990), 245 Mont. 224, 800 P.2d 696, and State v. Whiteshield (1980), 

185 Mont. 208, 605 P.2d 189. In each of these cases, however, the defendants were 

inmates of the Montana State Prison who escaped while temporarily away from the prison, 

and their incarceration status was not at issue. In these cases, we considered instead 

whether the defendants should be convicted of felony escape or misdemeanor escape 

pursuant to § 45-7-306(3), MCA. None of the cases involved an escape from a chemical 

treatment program. Thus, they do not lend support to Phelps's assertion that his 

participation in a treatment program was on inmate status.

¶16.Given a plain reading of the language of Phelps's sentence, we conclude that Phelps's 

participation in a treatment program was a condition of his probation. Section 61-8-731, 

MCA (1997), does not grant the District Court authority to mandate that a defendant 

receive inpatient treatment unless it is a condition of probation. 

¶17.Phelps does not cite any law that provides the District Court authority to award 

additional credit for the time he serves on probation. Without specific statutory authority, 

the District Court does not have power to award him double credit for the time he served 

in treatment. See State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029. Thus, 

the District Court must strike this language in Phelps's sentence.

ISSUE 3

¶18.Can the District Court order Phelps committed to a prerelease program or intensive 

supervision?

¶19.Here, the pertinent part of Phelps's sentence reads: "Once he completes treatment, the 

Defendant shall enter and complete either a Pre-Release Program or an ISP." The 

Department of Corrections argues that the District Court only has statutory authority to 

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commit Phelps to a prerelease program as the initial place of incarceration pursuant to § 

61-8-731(2)(a)(v), MCA (1997). Phelps does not argue to the contrary.

¶20.The parties also agree that the District Court does not have authority to order Phelps to 

complete intensive supervision (ISP). The Department of Corrections argues that pursuant 

to § 61-8-731(4)(b), MCA (1997), only it has the power to order all or any portion of the 

term of probation to be served under intensive supervision. 

¶21.Upon our review of the statute, we agree. The District Court cannot require Phelps to 

be committed to a prerelease program or intensive supervision; thus, it must strike the 

language noted above. 

¶22.In summary, we order the District Court to strike the language in Phelps's sentence 

regarding its suspension of his incarceration time, its award of double credit for the time 

Phelps spends in treatment, and its order to commit Phelps to a prerelease program or 

intensive supervision. The District Court also must take away any double credit Phelps 

may already have been awarded.

¶23.We remand Phelps's sentence and order the District Court to make the necessary 

modifications. 

/S/ J. A. TURNAGE

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER 

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

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