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State v. Phelps1/27/2000
APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Honorable Marge Johnson, Judge Presiding
Submitted on Briefs: December 29, 1999
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.
We restate the issues as follows:
. Does § 61-8-731, MCA (1997), permit the District Court to suspend any of Phelps's imprisonment term?
. Does the District Court have statutory authority to award Phelps double credit for time served when he completes a treatment program?
. Can the District Court order Phelps committed to a prerelease program or intensive supervision?
FACTUAL AND PROCEDURAL BACKGROUND
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.
The Department of Corrections contends that this sentence does not comport with § 61-8-731, MCA (1997).
STANDARD OF REVIEW
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
Does § 61-8-731, MCA (1997), permit the District Court to suspend any of Phelps's imprisonment term?
Section 61-8-731, MCA (1997), provides:
(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.)
Where the language of a statute is clear and unambiguo
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