### No. 95-i28 

### IN THE SUPREME COURT OF THE 

### STATE OF 

### MONTAfuAfuA 1995



### STATE OF MONTANA, Plaintiff and Respondent,

v.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Jefferson, The Honorable Frank Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Jeffrey T.Renz, Montana Defender University of Montana Law School, Missoula, Montana For Respondent: Hon. Joseph P. 

### Mazurek,Attorney G Pat Jordan,Assistant Attorney Ge Helena,Montana roject,

eneral

### , neral, Deborah Butler,Acting Jefferson County Attorney, Boulder,Montana

Submitted on Briefs: August 17, 1995Jcstice James C. Selson delivered the =pinion of the Court

On June i, 1983, 

### the District Court for 

### the Fifth 

### judicial District, Jefferson County, sentenced defendant Lynn W. Docken

Upon petition, the District Court revoked the suspended sentence and imposed another five-yearsuspended sentence. Upon a second petition, the District Court revoked the second suspended sentence and imposed a five-year prison term. Docken appeals from the judgment imposing the prison term. We affirm. Docken raises the following issue on appeal: Did the District Court have jurisdiction to revoke Docken's five-year suspended sentence and impose a second five-year suspended sentence? BACKGROUND On February 8,1989, the State charged Docken with one count of forgery and, alternatively, with one count of forgery through

common scheme. The District Court sentenced Docken to five years imprisonment for forgery through common scheme and suspended her sentence under certain conditions. Approximately four years later, the State petitioned to revoke Docken's suspended sentence for probation violations including possession of a firearm, failure to pay fines, misdemeanor offenses, and responding violently to law enforcement officers. Docken admitted the allegations of the petition. Concerned about 

### theweil-beingof Docken'schlld,theprobation officer recommended probation. TheDlstrictCourt revokedDocken'ssuspended sentence,stated that she was nat tc be given credit for time served, anci imposed the original five-yearsuspended sentence. Two and one-halfmonths later, rne State again petrt~onedto revoke Docken" suspended sentence, alleging violations of 

### her probation for use of unlawful drugs, possession of alcoholic beverages, failure to make restitution, and failure to maintain employment. The District Court revoked Docken's second suspended sentence, did not allow credit for her time already spent on probation, and ordered her imprisoned at the Women'sCorrectional Facility for five years. Docken appeals the District Court's revocation of her suspended sentence and her sentence of imprisonment for five years. DISCUSSION Did the District Court have jurisdiction to revoke Docken's five-year suspended sentence and impose a second five-year suspended sentence? Section 46-18-203(1),MCA, gives the sentencing judge the discretion to revokea suspended sentence. Statev. Otwell (19891, 240 Mont. 376, 377, 784 P.2d 402, 403. We will not overturn "a District Court's revocation of a suspended or deferred sentence absent a showing that the court abused that discretion." Statev. Strangeland (1988),233 Mont. 230, 234, 758 P.2d 776, 778 (citing State v. Robinson (19801,190 Mont. 145, 149, 613 P.2d 813, 815). However, where, as here, che issue involves the existence of the court's jurisdiction to exercise the discretion conferred by the statute, our review is plenary.Docken" sargmentsare two-fold. 

### She claims that the District Court did not have jcrisdiction to impose a suspended sentence and then revoke it and impose a second suspendeosentence. Because she argues that the District Court 

### lacked jurisdiction to impose the second suspended sentence,Docken also claims that the subsequent revocation of the second suspended sentence and imposition of a sentence of five years in the Women's Correctional Facility is void. Docken relies on our decision in Statev. Downing (1979) , 181 Mont. 242, 593 P.2d 43, to assert that the District Court lacked jurisdiction to revoke her suspended sentence and impose a second suspended sentence. The State asserts that this Court should follow its reasoning in Speldrich v. McCormick (1990),243 Mont. 238, 794 P.2d 339; and State v. Oppelt (1979),184 Mont. 48, 601 P.2d 394, to hold that the District Court had the authority to reimpose the suspended sentence and retain jurisdiction. InDowning the defendant pleaded guilty toburglary of amotor vehicle, a felony, and was sentenced to three years imprisonment, suspendedonvarious conditions. Two and one-half years later,on petition of the county attorney, the district court revoked the defendant'ssuspended sentenceand enteredanother judgment whereby Downing was sentenced to spend sixty days in the county jail and thirty-fourmonths on suspended sentence status. Over a year and

a half later (afterthe defendant has served his sixty days) the county attorney 

### fiied apetition to revoke the suspended portion of the defendant's sentence. The district court denied thedeferidant3smotion to dismiss the petition and, granting che petition,ordered him to serve the remaining thirty-fourmonths of 

### his suspended sentence. Downinq, 593 P.2a at 44. On appeal, Downing conceded that 

### the district court had the power to revoke his suspended sentence and order him to serve a three-year term in prison. However, he argued that the district court did not have the statutory authority to revoke his suspended sentence and thenmodify the original sentence. Downinq, 593 P.2d at 44. We noted that "[olnce a valid sentence is imposed, the court lacks jurisdictionto vacate ormodify it unless specifically authorized by statute." Downinq, 593 P.2d at 44. Section 95-2206(61,RCM (1947),the statute in effect at the time the crime was committed, provided that any judge who has suspended the execution of a sentence may: revoke such suspensionor impose sentence and order such person committed, or may, in his discretion, order the prisonerplaced under the jurisdictionof the stateboard of pardons as provided by law, or retain such jurisdiction with this court. We determined that this sectionallowed the sentencingcourt three mutually exclusivealternatives indealing with adefendantwho has violated the conditions of probation. We stated that the sentencingcourt may "

### '

. . 

## . revoke such suspension 

## . . . and order suchperson committed.



### . . [or] retain such jurisdiction with this court.'" Downinq, 593 P.2d at 45. We concluded that, on the first petition to revoke, the court exercised the first alternative under the statute, i.e.,to revoke che suspended sentence and order the defendant committed. Wedetermi~ed that the court erred, however, in going beycnd simply revokingDowning'ssuspendedsentenceand committinghimby instead requiring him to serve sixty days in the county jail and another thirty-fourmonths on suspended sentence. We held that there was

no statutory authority for the district court to grant the county attorney's second petition to revoke Downingissuspended sentence and that the district court no longer had jurisdiction to impose a second sentence. Downinq, 593 P.2d at 45. Notwithstanding Downinq and without reference to ourdecision in that case, we subsequently held that a district court had jurisdiction to revoke a suspended sentence and impose a term of incarceration plus a second suspended sentence when the length of the original sentence remained the same. Sweldrich, 794 P2.d at 340 (remanding for the district court to state its reasons for allowing or rejectingelapsed time as credit against the sentence). In Saeldrich, the defendant was found guilty of aggravated assault, a felony, and was sentenced to five years in the Montana State Prison, suspended on conditions. Over four years later, on petition, the district court revoked and vacated the suspended sentence and ordered the defendant to serve five years in prison, two of thoseyears suspendedon conditions. Saeldricn,794 P.2d at 339. In reviewing the defendant's peti-tion for writ of habeas corpus, we stated our concern as being whether "there was 

### any Limitation upon the power of the District Court to reimpose the original five year sentence after completion of four and one-halfyears 

### of the suspended sentence.

### " Speldi-ich, 794 

### P. 2d a",j~C. After reviewing "relevant statutory and case law" we concluded, however, that "theDistricc Court had jurisdiction to revoke 

### :he suspended sentence and to impose the original 

### sentence of five years with two years suspended." Speldrich, 794 P.2d at 340. While it might be argued that in Downinq we focused on the district court'smodification of the defendant'soriginal sentence and that in Speldrichwe upheld the district court'simposition of

a second suspended sentence because the original sentence was not altered, a careful reading of both cases reveals that such an argument is semantics. 

### In Downinq, the court revoked the original thirty-sixmonth suspended sentence and then imposed sixty days of incarceration and thirty-fourmonths suspended; in Sueldrich, the court revoked the original five years suspended sentence and imposed three years incarceration and two years suspended. In neither case was the length of the original sentence modified; in both cases the first revocation of suspension was followed by a combination of incarceration and suspension. Finally, notwithstanding that the pertinent language in statutes in effect when each case was decided--§95-2206(6),RCM 1947, (Downing) and 5 46-18-203

### (I), MCA (S~eldrich! --is virtually the same,the results of the two cases are irreconcilable. Under such circumstances,it is again appropriate that we examine the language of the statute. Inreviewing the District Court's jurisdiction in this casewe look to 5 46-18-203(1) (1987),MCA, because it was the statute in effect at the time the crime was committed. See State 

### v. Azure[197Sj, ;79 Mont. 281, 282, 587 P.2d 1297, 1298. Section 46-i8 203 (1) (1987) 

### , MCA, provides in pertinent part: F: ?udge


### . . . who has suspended the execution of 

### a sentence 

## . . . is authorized in his discretion to revoke the suspension 

### or impose sentence and order the person commit"id. i4e 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 his court. [Emphasisadded.]

This Court has construed "retain such jurisdiction with his court" to be synonymous with continuing a suspended sentence. 

### See Opoelt, 601 P.2d at 397; State v. Rogers (19941,267 Mont. 190,

After conviction, the decision to suspend a sentence is a 'decision to forego complete denial of liberty by incarceration in favor of a judicially-supervisedperiod of restricted liberty



### . . . . In essence, the trial court retains jurisdiction over the defendant by imposing conditions on defendant'sfreedom to which he agrees to abide. [Citations omitted and emphasis added.]

In the instant case, the District Court had the statutory authority under 5 46-18-203(l),MCA (1987),to revoke Docken's

l~he dissent,by footnote,points to a difference between the Montana Reports and the Pacific Reporter Second with regard to certain language quoted from Oaoelt. Marutzky v. State (0kla.Cr. L973!, 514 P.2d 430,431,was cited in Ouwelt as authority for the statement at issue. In Marutzky, the court stated: "The court maintains continuing jurisdictionvia a judgment and sentencewhich imposes subsequent conditionsupondefendant'sfreedom,conditions to which defendant agrees to abide." Accordingly, for whatever reason the full quote from Oooelt was not included in the Montana Reports, the Pacific Reporter Second language is a more accurate paraphrase of 

### the language in Marutzky than is the language from the Montana Reports. Moreover, the original opinion of this Court oc file with the Clerk of Court as Cause No. 14289 (decidedOctober 17, 19791 contains the ianguage as set forth in the Pacific Reporrer

### .originally irn~csed suspx-~ded seneerxe. Under Speldrich,

### cZe court also had the power to retain 2urisdictioc over the defendant by reimposing the original fiveyear sentenceand then suspending che sentence reimposed. Since in Soeldrich we uphaid the court's authority to revoke and then reimpose the original sentence via a combinationof imprisonmentand suspensionboth totalingnogreater than the length of the original sentence, it follows that here the sentencing court likewise had the authority to revoke, reimpose, and then suspendthe entiretyof thedefendant'soriginal sentence,

so long as the reimposed sentence did not exceed the length of the original sentence. Sueldrich, 794 P.2d at 340. The State argues that this Court should overrule Downinq. We agree. Our holding in Downinq is inconsistent with our holding in Sueldrich. On carefully reexamining Downinq,we conclude that our decision was in error. Contrary to our interpretation of 5 95- 2206(6), RCM 1947, that statute provided more latitude to the district court than our restrictive reading allowed. Under the plain language of S 95-2206(6),RCM 1947, the court could revoke ehe suspended sentence or impose sentence and order the defendant committed, or order the prisoner placed under the jurisdiction of tne state board of pardons, or retain jurisdiction. Under the statute as written, revoking the suspended sentencedidnot require imposing sentence and ordering commitment. While revocation, impositionof sentence,and order of commitmentwas one alternative availabie to the district court, the court alsohad jurisdictionto revoke the suspended sentence and retain jurisdiction. 

### If theccmrt retained jurisdiction, then it retained 

### the ability to suspend 

### or partially suspend the imposition of sentence. 

## - See O~oeit, 601 P.2d at 397. Although SoeLdrich didnot specifically addressDowningas it shouldhave, it is clear that ourdecision in S~eldrich effectively overruled Downinq. If that was not evident then, it is now, by our decision here. In the instant case, the District Court did not modify Docken'soriginal sentence but, rather,under the authority of 5 46-18-203(I),MCA (l987),and consistent with Sweldrich,it revoked her suspended sentence and then reimposed the original five-year sentence. Choosing to retain jurisdiction under 46-18-203(1), MCA (1987),the court then suspended all five years of the sentence. Having thus retained jurisdiction,the District Courthad authority under 5 46-18-20l(l),MCA (l987),to then revoke Docken's second suspended sentence and order her commitment to the Women's Correctional Facility for the full term of five years. We hold that the District Court had the statutory authority, and thus jurisdiction,to impose the second suspended sentence and that its decision to subsequently revoke that suspended sentence is not void.Justices
Justice Charles E. Erdmann did not participate in this opinion.justice Terry N. Trieweiler dissenting I dissent from the majority opinion which uses semantic smoke and mirrors to ignore the plain iangnage 

### of § 46-18-263,NCA. Tne role of this Court in the construction of a statute is simply to ascertain and declare what is in terms or 

### in substance contained therein, not to insert what has been omitted. Section 1-2-101, MCA

### . As we correctly concluded in Sfutev.Downing (1979),181 Mont. 242, 593 P.2d 43, Section 95-2206(6j,RCM (1947) (currentversion at § 46-18-203, MCA)

### , simply does not provide the option of reimposing a second suspended sentence after a first suspended sentence has been revoked. We appropriatelynoted, " [tlhe State's position seems to be that a three year suspended sentence can technically impede the defendant for the rest of his life." Downing, 181 Mont. at 244, 593 P.2d at 44. That now seems to be the majority'sposition. We held in Downing that: Once the decision was made to revoke defendant's suspended sentence,the District Court had thediscretion to allow credit for the "good time" served by the defendant,but that is all. Section 95-2206(3),R.C.M. 1947. The District Court did not have the statutory authority to require defendant to serve sixtydays in the Ravalli County Jail and another thirty-fourmonths on a suspended sentence. Section 95-2206(6)did not permit this kind of modification. Accordingly,there was no authority fortheDistrict Court to grant the county attorney'spetition to again revoke the suspended sentence. At this point, the District Court no longer has jurisdiction over thedefendmi:and a sentence imposed at 

### this time wouid be void. Downing, 181Mont. at 245, 533 P.2d at 45. The majority's conclusion that there is an unreconciled conflict between Downing and our decision in Speldrich v. rLlcCormick

(1990), 243 Mont. 238, 794 P.2d 339, is nothing more than the creation of a straw man so that it can be knocked down. There is

no conflict between Downing and Speldrich. Speldrich involves a one and one-halfpage order and opinion in which we remanded a case to the district court for furtherconsiderationof the sentence imposed in light of C; 46-18-201,MCA, which gives the district court the discretion to credit time servedunder a suspended sentence against the actual time served after revocation of that sentence. As we pointed out in Speldrich, the defendant in that case did not even appeal his sentence or conviction. That case did not involve the same issue whichwe discussed inDowning. Neither § 46-18-203, MCA,

nor its predecessor which was involved in Downing, were raised or discussed in that case. It is no mystery that the opinion did not discuss Downing. The State's brief did not even raise Do~~izing because the same issue was not involved. After constructing a conflict which does not exisc, the majority reconciles the conflict by overruling Downing in favor of

an interpretationof 5 46-18-203, MCA,which makes no sense,cannot be justified by the plain language in the statute,and which in no

### way is supportedby 

### this Court's

### one and one-haifpage opinion and order in Speldrich. 

### The majority concludes that that language contained in § 

### -203 which gives the district court anthority to laretainjurisdiction,"gives it the authority to impose a second and additional sentence after revoking the first sentence, even though four out of fiveyears on the first suspended sentencehave already been served. How the meaning of simple language can be distorted in this fashion is beyond me. The statute simply does not provide the District Court with the option of imposing a new and different sentence after revoking the original suspension of sentence. As we held in Downing, 

### the plain language of the statute gives the court three alternatives:

(1) It may revoke the suspended sentence and order the person committed; (2)

### it may order the person placed under the jurisdiction of the department of institutions; or (3) 

### it may retain jurisdictionwith the court. The majority takes language out of context from Stalev. Oppelt 

### (19791,184 Mont. 48, 601 

### P.2d 394,

### for its conclusion that "retain such jurisdiction with his court" is synonymouswith "impose a new suspended sentence." However, this cut and paste approach to arriving at its conclusion is not justified. In pp, 

### the defendant contended that revocation of a suspended sentence based

on convictionof a second crime constituted adouble punishment for the second crime, and therefore, violated the Fifth Amendmentprohibition against subjecting 

### a person tc double jeopardy for the same offense. In describing a suspended sentence,we stated that during the period of s-uspensiorithe court retaics jurisdictionover the defendant'sfreedomwith the optionof incarceratinghim should he not comply with the terms of his suspended sentence. We used that expression to illustrate that when a suspended sentence is revoked, a defendant is not being punished for a new offense, and therefore,the prohibitionagainst double jeopardyisnot offended. By no stretch of the imagination can our statement in Oppelt, 184 Mont. at 53, that, "thetriai court retains jurisdiction over the defendant's freedom"' justify the majority's conclusion in this

case that similar language found in § 46-18-203,MCA, allows the court to impose a new and additional sentence which isnot provided for by statute in the event a defendant violates the terms of his probation. "Retainedjurisdiction" in Oppeltwas used solely forthe purpose of explaining why, if a defendant violates a term of probation, the district court has the authority to impose the original sentence which was suspended without that action being considered an additional punishment.

'This dissent quotes language from Oppelt in the Montana Reporter (whichincludes the official reports forour decisions)at page 53which states that the trial court retains jurisdiction over "the defendant'sfreedom." The Pacific Reporter Second,page 397, on thewhichmajority opinionrelies,states that the court retains "jurisdictionover the defendant."The majority may like 

### the flexibiiity that its opinion gives district courts for perpetuating their involvement in the lives of criminal offenders. 

### A little creative use of the English language here,and a littledistortion of 

### a statute'sterms there,and there is no end to the solutions our district courts could come up with to deal with what we all concede is anti-social conduct. My objection to the majority opinion is that it simply is not authorized by the plain language of the statute we have been asked to construe. For these reasons, 

### I dissent from the majority opinion.

Justice William 

### E.Hunt, Sr., joins in the foregoing dissent.