NO. 83-41
INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

KATHLEEN RACHELWILKINSON, Defendant and Appellant,

vs

## . STATE OF MONTANA, Plaintiff and Respondent.

Appeal from- District Court of theFourthJudicial District, In and fortheCounty of Missoula Honorable JackL. Green, Judge presidin*. Counsel of Record:
For Appellant: Nick A. Roterinq argued, SpecialAssistant Attorney General,

Helena, Montana For Respondent: Mike Greely, Attorney General, Helena, Xontana Robert L. Deschamps 111, County Attorney, Missoula, Montana Karen S. Townsend, Deputy County Attorney, arqued. Missoula,

Montana

Submitted- 

### June 2

## , 1983
Decided- August 1, 1983

Clerk

### Mr. JusticeL. C. Gulbrandson delivered theOpinion of the Court.

The Department of Institutions of the State of Montana appeals from an order by the 

### District Court of the Fourth Judicial District, Missoula County, declaring the Department financially responsible for costs incurred as a result of the birthof defendant's baby. On September 10, 1982, defendant entered a guiltyplea to the charge of negligent homicide. The District Court sentenced defendant to ten years with two years suspended, to be served at

a women's correctional facility chosen by the Department of Institutions. Because defendant was soon to give birth and because 

### testimony at the sentencing hearing indicated that she had a strong medical relationship with her physician, the 

### District Court allowed her toremain attheMissoula County jail until afterthe birth of her child. She was remanded to the custody of the Missoula County sheriff and subsequently gave birth to her child attheMissoulaCommunity Hospital. On October 28, 1982, shewas taken to the Women's Correctional Center at Warm Springs, Montana. The Department of Institutions refused to pay the medical expenses of the birth. Missoula County moved for an order from the

### District Court declaring thattheDepartment pay the medical expenses. After a show-cause hearing, the 

### District Court made the following findings, conclusions, and decree: "FINDINGS OF FACT "1. The Defendant, KathleenRachel Wilkinson, was found guilty by a plea of guilty to the offense of Negligent Homicide, a felony, and sentenced on the 10thday of September, 1982 to a term of ten (10) years atMontana State Prisonwith two of those years suspended. "2. The Defendant, on September 10, 1982, was ordered to serve her 

### time atthe women's prison facilityatWarm SpringsStateHospital. "3. The Defendant was ordered retained inthe Missoula County Jail until after the birth of her child so that her obstetrician could continue to carefor her."4. The Defendant was ordered to remain in Missoula County and not be transferred toWarm SpringsStateHospital until her doctor determined that it would not be detrimental to her interests or the interestsof her child to be transferred. "5. The Defendant was taken to Missoula Community Hospital for the birth of her child onOctober 23, 1982. "6. Expenses for medical and security costs in the amount of Three Thousand Four Hundred Eighty-two and 47/100th Dollars ($3,482.47) were incurred as a result of the birth of the Defendant's son. "7. The Defendant was transferred to the women's prison facility on the 28th day of October, 1982 after her physician stated she could be transferred. "CONCLUSIONS OF LAW "1. The Defendant became a stateprisoner on the 10th day of September, 1982 upon passing of sentence. "2. The Defendant's stay in the Missoula County Jail and or the Missoula Community Hospital fromSeptember 10, 1982untilOctober 28, 1982, was a temporary stay for a 

### state prison inmate. "3. The MontanaDepartment of Institutions 

### is financially responsible for the medical and security costs incurred 

### as a result of the birthof theDefendant's child. "ORDER "The Montana Department of Institutions 

### is herebyordered to assume the financial responsibility for all medical and security costs incurred as 

### a result of the birth of the son of KathleenRachel Wil kinson. "The Department 

### is further ordered to remit to Missoula Community Hospital the sum of Two Thousand Eighty-five and 87/100ths Dollars ($2,085.87); to

### Dr. Thomas A. Baumgartner the sum of Four Hundred and Sixty Dollars ($460.00); and toMissoula County (Guards)the sum of Nine Hundred Fifty-four dollars ($954.00). The sole issue on appeal 

### is whether the Department of Institutions 

### is responsible for the medical and security costs incurred as a result of the birth of the defendant's baby, despite the fact that she was not delivered to the Women's Correctional Center atWarm Springsprior to thebirth. The 

### lawof Montana 

### is clear that

### "[olncea valid sentence 

### isimposed, the court lacks jurisdiction to vacate or modify it unless specifically authorized by statute. State v. Porter (1964), 143 Mont. 528, 540, 391 P.2d 704." State v. Downing (1979), 181Mont. 242, 593 P.2d 43, 44. 

### Here the court, in

### its judgment, committed the defendant to the Montana Department of Institutions. From this it 

### is clear that the defendant 

### was the responsibility of the State

### as there 

### is no way for the judge to changehisdecision, after the filingof thejudgment. This point 

### is illustrated most vividly by 

### a line of Washington 

### cases where ithasbeen stated that: "This court said in January v. Porter, 75 Wash.2d 768, 453 P.2d 876 (1969), that upon the entryof a final 

## -- judgment and sentenceof imprisonment, legal

# --- authorityover theaccused 

### passes bx operation of 

### law tothe Department 

# - of Institutions (nowthe-tmxt ofSocial - 

## - -- and HealthServices) 

## ---- and the Board oT -Prison Terms and Paroles, and that those agencies of the executive branch bear full responsibility for executing the judgment and sentence or granting parole." (Emphasis added) Kanekoa v. Washington StateDepartment of Social and Health Services (1981), 95 Wash.2d 445, 626 P.2d 6, 7 

### (see also In Re Bush (1980), 26 Wash.App. 486, 616 P.2d 666, InRetheWelfare of Lowe (1978), .2d 824, 576P.2d 65.) Similarly, because of circumstances inthisparticu

### lar case, the Department of Institutions must bear the medical costsfor the birthof defendant's child. Itmust be noted thatour holding here applies solely to the particular expenses in question. 

### We are neither setting nor suggesting 

### a general method for determining financial responsibilityof 

### stateprisoners. That 

### is a legislative atter. 

# d For the reasons stated above, the ourt's judgment 

### isaffirmed.

Weconcur: 

## / 

# %-RJ
t

# .Qw (&&J 

# Y

Chief JusticeJustices

### Mr. Justice Daniel J. Shea dissenting: I dissent. 

### I would hold that Missoula County is responsible for the expenditures. The unfortunate result here is that the Department of Instituti,ons,without even having been notified of the District Court decision in time to object, has been saddled with paying the costs of hospitalizationand costofproviding guards at the hospital. The result not only is unfair it is papered over with citations and quotations of authority that have no application to the questions presented to the DistrictCourt and to thisCourt. At the sentencing hearing it was the defense attorney and the deputy county attorney who requested the District Court to take the action it did. The District Court did so without ever conferring with anyone from the Department of Institutions. Had the Department of Institutions been notified of the contemplatedaction rather than the completed action, it is possible that it could have made other and satisfactory arrangements for care of the mother and thebaby through the time of delivery. The authority cited by the ma:jority has no application to the facts presented here. Here the District Court committed the defendant to the Department of Institutions. This should have meant that the defendantwas in the custody and control of the Department and that the Department could have made appropriatearrangements itself for theproper care of the mother and expected child. The question here is not whether custody passed by operation of law to the Department of Institutions upon the passing of sentence of imprisonment. The question iswhether the District Courthad the authority to grant custody and control of defendant to the Department

### on the one hand, but on the other to take it away by never notifing the Department that it had made arrangments for the custody of the defendant up to the time that the baby was delivered. By the action it took, the District Court deprived the Department of any meaningful opportunity to object to the Court's decision. In later ruling that the Department must bear the hospitalizationand guard expenses the District Court simply sanctified the time-honored rule that if possible make the State pay rather than the local unit of government, a governmental application of the deep pocket theory. This Court has of course, ratified that action by approving the ruling that the State rather than the county must pay. Here the District Court made a mistake and I 

### have no doubt it had the authority to correct its own mistake by a ruling that truly passed the custody and control of defendant to the Department of Institutions. Had the Departmentbeen timely notified of the decision it could have objected and the District Court could have amended its decision to truly turn custody and control of defendant over to the Department 

### of Institutions. 

### Idoubt that theDepartmentwould have been

so callous as not to take care of the real needs of the expectant mother, but it was never given the opportunity to act. The county, not the State,shouldpay.