 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Phelps1/27/2000
ved in treatment. See State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029. Thus, the District Court must strike this language in Phelps's sentence.
ISSUE 3
Can the District Court order Phelps committed to a prerelease program or intensive supervision?
Here, the pertinent part of Phelps's sentence reads: "Once he completes treatment, the Defendant shall enter and complete either a Pre-Release Program or an ISP." The Department of Corrections argues that the District Court only has statutory authority to commit Phelps to a prerelease program as the initial place of incarceration pursuant to § 61-8-731(2)(a)(v), MCA (1997). Phelps does not argue to the contrary.
The parties also agree that the District Court does not have authority to order Phelps to complete intensive supervision (ISP). The Department of Corrections argues that pursuant to § 61-8-731(4)(b), MCA (1997), only it has the power to order all or any portion of the term of probation to be served under intensive supervision.
Upon our review of the statute, we agree. The District Court cannot require Phelps to be committed to a prerelease program or intensive supervision; thus, it must strike the language noted above.
In summary, we order the District Court to strike the language in Phelps's sentence regarding its suspension of his incarceration time, its award of double credit for the time Phelps spends in treatment, and its order to commit Phelps to a prerelease program or intensive supervision. The District Court also must take away any double credit Phelps may already have been awarded.
We remand Phelps's sentence and order the District Court to make the necessary modifications.
J. A. TURNAGE
We concur:
WILLIAM E. HUNT, SR.
TERRY N. TRIEWEILER
JIM REGNIER
W. WILLIAM LEAPHART
|