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, 1995 
Jcstice 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-year suspended 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 

the weil-being of Docken's chlld, the probation officer recommended 

probation. The Dlstrict Court revoked Docken's suspended sentence, 
stated that she was nat tc be given credit for time served, anci 

imposed the original five-year suspended sentence. 

Two and one-half months later, rne State again petrt~oned to 

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's Correctional 

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 revoke a suspended sentence. State v. 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." State v. 

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" sargments are 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 suspendeo sentence. 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 State v. 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. 

In Downing the defendant pleaded guilty to burglary of a motor 

vehicle, a felony, and was sentenced to three years imprisonment, 

suspended on various conditions. Two and one-half years later, on 

petition of the county attorney, the district court revoked the 

defendant's suspended sentence and entered another judgment whereby 

Downing was sentenced to spend sixty days in the county jail and 

thirty-four months on suspended sentence status. Over a year and 

a half later (after the defendant has served his sixty days) the 

county attorney f iied a petition to revoke the suspended portion of 

the defendant's sentence. The district court denied the 
deferidant3s motion to dismiss the petition and, granting che 

petition, ordered him to serve the remaining thirty-four months 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 then modify the original sentence. Downinq, 593 P.2d 

at 44. We noted that "[olnce a valid sentence is imposed, the 

court lacks jurisdiction to vacate or modify 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 suspension or impose sentence and order such 

person committed, or may, in his discretion, order the 

prisoner placed under the jurisdiction of the state board 

of pardons as provided by law, or retain such 

jurisdiction with this court. 

We determined that this section allowed the sentencing court three 

mutually exclusive alternatives in dealing with a defendant who has 

violated the conditions of probation. We stated that the 

sentencing court may " ' . . . revoke such suspension . . . and order 

such person 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. We 
determi~ed that the court erred, however, in going beycnd simply 

revoking Downing's suspended sentence and committing him by instead 

requiring him to serve sixty days in the county jail and another 

thirty-four months 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 Downingis suspended 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 our decision 

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 rejecting elapsed 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 those years suspended on 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-half 
years of the suspended sentence. " Speldi-ich, 794 P. 2d a",j~C. 

After reviewing "relevant statutory and case law" we concluded, 

however, that "the Districc 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's modification of the defendant's original sentence 

and that in Speldrich we upheld the district court's imposition 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-six month suspended sentence and then imposed sixty days of 

incarceration and thirty-four months 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. 

In reviewing the District Court's jurisdiction in this case we 

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. [Emphasis added.] 

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-supervised period 

of restricted liberty . . . . In essence, the trial court 

retains jurisdiction over the defendant by imposing 

conditions on defendant's freedom 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 jurisdiction via a judgment and sentence which 

imposes subsequent conditions upon defendant's freedom, 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 (decided October 

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 five year sentence and then suspending che 

sentence reimposed. Since in Soeldrich we uphaid the court's 

authority to revoke and then reimpose the original sentence via a 

combination of imprisonment and suspension both totaling no greater 

than the length of the original sentence, it follows that here the 

sentencing court likewise had the authority to revoke, reimpose, 

and then suspend the entirety of the defendant's original 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 sentence did not require 

imposing sentence and ordering commitment. While revocation, 

imposition of sentence, and order of commitment was one alternative 

availabie to the district court, the court also had jurisdiction to 

revoke the suspended sentence and retain jurisdiction. If the 
ccmrt 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 did not specifically 

address Downing as it should have, it is clear that our decision 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's original 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 Court had 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 Sfute v. Downing (1979), 181 Mont. 

242, 593 P.2d 43, Section 95-2206(6j, RCM (1947) (current version 

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 appropriately noted, " [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's position. 

We held in Downing that: 

Once the decision was made to revoke defendant's 

suspended sentence, the District Court had the discretion 

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 sixty days in the 

Ravalli County Jail and another thirty-four months on a 

suspended sentence. Section 95-2206(6) did not permit 

this kind of modification. 

Accordingly, there was no authority for the District 

Court to grant the county attorney's petition to again 

revoke the suspended sentence. At this point, the 

District Court no longer has jurisdiction over the 
defendmi: and a sentence imposed at this time wouid be 

void. 

Downing, 181 Mont. 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-half page order and opinion in which we remanded a case to the 

district court for further consideration of the sentence imposed in 

light of C; 46-18-201, MCA, which gives the district court the 

discretion to credit time served under 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 which we discussed in Downing. 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 interpretation of 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 supported by this Court's one and one-haif page opinion and 

order in Speldrich. The majority concludes that that language 

contained in § -203 which gives the district court anthority to 

laretain jurisdiction," gives it the authority to impose a second 

and additional sentence after revoking the first sentence, even 

though four out of five years on the first suspended sentence have 

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 

jurisdiction with the court. 

The majority takes language out of context from Stale v. Oppelt 

(19791, 184 Mont. 48, 601 P.2d 394, for its conclusion that "retain 

such jurisdiction with his court" is synonymous with "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 conviction of a second crime constituted a double punishment for 

the second crime, and therefore, violated the Fifth Amendment 
prohibition against subjecting a person tc double jeopardy for the 

same offense. In describing a suspended sentence, we stated that 

during the period of s-uspensiori the court retaics jurisdiction over 

the defendant's freedom with the option of incarcerating him 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 prohibition against double jeopardy is not offended. 

By no stretch of the imagination can our statement in Oppelt, 184 

Mont. at 53, that, "the triai 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 is not provided 

for by statute in the event a defendant violates the terms of his 

probation. "Retained jurisdiction" in Oppelt was used solely for the 

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 (which includes the official reports for our decisions) at 

page 53 which states that the trial court retains jurisdiction over 

"the defendant's freedom." The Pacific Reporter Second, page 397, 

on the which majority opinion relies, states that the court retains 

"jurisdiction over 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 little distortion of a statute's terms 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.