No. 84-140 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 8 4 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCARL EDWARD KERN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold Hanser, County Attorney, Billings, Fontana 

(David Hoefer, Deputy) 

.---- --- 

Submitted on Briefs: July 27, 1984 

Decided: September 25, 1984 

Filed: ";,? .! I 984 

--7. - 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant pled guilty to sexual intercourse without 

consent and was sentenced to ten years imprisonment with the 

last five years suspended. After defendant had served his 

prison term, the District Court of Yellowstone County revoked 

the suspended sentence and ordered him returned to prison to 

serve the remainder of the sentence. Defendant attacks this 

exercise of discretion by the court. We affirm. 

The sole issue on appeal is whether the District Court 

abused its discretion when it revoked the defendant's 

suspended sentence, absent findings that continued probation 

would be at odds with society's interest in defendant's 

rehabilitation as well as the need to protect society. 

On February 5, 1.980, defendant plead guilty to sexual 

intercourse without consent, a felony. He completed his 

prison term on February 24, 1983, and was placed on 

probation. In the order suspending five years of the 

ten-year sentence, the District Court required the defendant 

to abide by a number of conditions, including not using 

intoxicants, not frequenting places where intoxicants are 

sold, and not violating any law or ordinance. Upon release 

from prison, d.efendant signed conditions of probation and 

parole which included his agreement not to drink any 

intoxicants, not to frequent any place where intoxicants were 

sold, to comply with all laws and ordinances, and to conduct 

himself as a good citizen. 

On October 13, 1983, defendant's probation officer filed 

a report detailing a number of alleged violations of 

probation. The county attorney filed a petition to revoke 

the suspended sentence. Initially, the defendant fa.iled to 

appear. He did appear after the issuance of a bench warrant, 

but his explanation of his initial failure to appear was 
weak. At the hearing 011 the petition for revocation, 

defendant and one other witness testified. At the conclusion 

of the hearing, the District Court indicated its desire to 

study the file carefully before reaching a decision. 

Approximately two weeks later, the court issued its findings 

of fact, conclusions of law and order revoking the suspended 

sentence. 

The findings of fact include a reference to defendant's 

conditions of probation. The court found that the defendant 

had entered a guilty plea to a driving while intoxicated 

charge in the City of Billings; that the defendant had 

forfeited bond on a charge of failure to drive in a careful 

and prudent manner in Billings; and that the defendant had 

pled guilty to a charge of disorderly conduct in Billings. 

The District Court concluded that the evidence showed a 

continuous disregard by defendant for the conditions of 

probation and the laws of Montana. The court revoked its 

previous order suspending five years of the original 

sentence. 

Defendant admits that his alcohol problem is so serious 

that he is unable to control it without taking antabuse. He 

suggested that he should be required to take antabuse under a 

physician's supervision, thereby insuring that he would 

continue to take the medication. Defendant also conceded 

that the court's findings with regard to his probation 

violations awe correct. 

Defendant argues that, standing alone, proof of 

violation of a prohibition against drinking by an alcoholic 

is not sufficient for revocation of probation. He contends 

that, in addition, the State must establish that the 

continuation of probation would be at odds with the need. to 

protect society and society's interest in the defendant's 
Hon. Fred J. Weber 

Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

CORRECTION. In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

October 24, 1984 

State v. Kern, No. 84-140, Sept. 25, 1984 0% 

Page 4, line 9 -- Trumbley v. State should read Trumbly v. State. 

/"- 

(Also cited in lines 10 and 23, same page). 

WEST PUBLISHING COMPANY 

Box 43526 

St. Paul. MN 55164 
rehabilitation. As authority for that contention, defendant 

cites State v. Ruby (Alaska 1982), 650 ~.2d 412. 

The Alaska Supreme Court concluded in Ruby that proof of 

a violation of the conditions of probation while necessary 

for revocation, is not sufficient. The Alaska Court held 

that, in addition, it must be established that continuation 

of probationary status would be at odds with the need to 

protect society and society's interest in defendant' s 

rehabilitation. That rule was formulated in ~rumbl$y v. 

State (Alaska 1973) , 515 P. 2d 707. The ~rumbl$y Court cited 

Alaska Stat. § 12.55.110, which provides in pertinent part: 

"When, sentence has been suspended, it shall not be revoked 

except for good cause shown." The Alaska court construed 

this statute as follows: 

"The requirement that probation revocation follow 

after a showing of 'good cause' requires the trial 

judge to find that continuation of probationary 

status would be at odds with the need to protect 

society and society's interest in the probationer's 

rehabilitation. Revocation should follow violation 

of a condition of probation when that violation 

indicates that the corrective aims of probation 

cannot be achieved.'' 4 Trumbl , 515 P.2d at 709. 

Montana has no statutory requirement similar to Alaska Stat. 

S 12.55.110. The Alaska cases therefore are not authority 

here. 

Section 46-23-1013, MCA specifies the action required of 

the District Court at a revocation hearing: 

"(1 . . the court shall cause the defendant to be 

brought before it without unnecessary delay for a 

hearing on the violation charged. The hearing may 

be informal or summary. 

" (2) If the violation is established, the court 

may continue to revoke the probation or suspension 

of sentence and may require him to serve the 

sentence imposed . . ." 

The District Court's findings of fact clearly establish that 

the court met the requirements of this section. In addition, 

the record indicates that after the revocation hearing, the 
court took the matter under advisement in order that it might 

carefully consider all of the facts and review the extensive 

court file before reaching its conclusion. 

The decision to revoke a suspended sentence cancels a 

prior act of grace and is a ma.tter within the discretion of 

the District Court. As we stated in State v. Robinson (Mont. 

". . . The District Court may, as a province of its 

discretionary powers, under section 46-18-201, MCA, 

suspend a criminal sentence. It follows, 

therefore, that the court may pursuant to section 

46-18-203, MCA, revoke its benevolent decision when 

it becomes apparent that the defendant does not 

merit further liberty or beneficence. 

". . . - All that is required is that the facts 

before him be such that the judge is reasonably 

satisfied that the conduct of the probationer has 

not been what he agreed it would be if he were 

given liberty." 

It is undisputed that the defendant's conduct during the 

term of probation was not what he agreed it would be when he 

was given liberty. He acknowledged three specific violations 

of his conditions of probation. We find that the District 

Court properly concluded that the defendant displayed a 

continuous disregard for the conditions of probation and the 

laws of Montana. 

The defendant has completely failed to show that the 

discretion of the District Court was improperly exercised by 

the revocation of probation. In view of defendant's admitted 

problem with alcohol and his stated willingness to accept 

treatment, we voice the hope that he will seek the assistance 

of the alcohol treatment available to him at the state 

prison. 
We concur: