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State v. Fisher2/25/2003
Submitted on Briefs: February 6, 2003
Michael D. Fisher appeals from the sentence imposed by the District Court of the Fifth Judicial District, Beaverhead County. He contends that the sentence is illegal in that, contrary to the provisions of §§ 46-18-403, MCA, it does not credit his time spent in jail prior to conviction against the fine imposed by the court. We determine that there is merit to Fisher's appeal, and we reverse and remand for new sentencing.
The issue presented for review is whether §§ 46-18-403, MCA, requires that a sentencing court give a defendant credit for time incarcerated prior to conviction against both his jail sentence and any fine imposed.
Background
In April 2002, Fisher was charged with felony DUI (fifth offense) and with two misdemeanors, driving without liability insurance and driving while his driving privileges had been suspended as a result of earlier DUI convictions.
Fisher pled guilty to the DUI charge and to driving with a suspended license in exchange for the State's agreement to dismiss the other misdemeanor. In addition, the State agreed to recommend a thirteen-month commitment to the Department of Corrections, followed by three years probation, in addition to several fines, costs, fees and surcharges.
Upon accepting Fisher's pleas, the District Court imposed sentence on May 13, 2002, committing Fisher to the DOC for thirteen months, followed by five years probation. On the misdemeanor offense, the court ordered Fisher to serve thirty days in the county jail, to run concurrently. In the sentence, the court gave Fisher thirty-seven days credit for time served in the county jail from the date of his arrest to the date of sentencing. Further, the court imposed fines, as follows:
$1,000 fine for the felony DUI, $450 reimbursement for public defender costs, $40 surcharge, $50 victim/witness fee, $10 technology fee, and $20 probationary supervision fee.
On August 5, 2002, Fisher filed a Motion to Amend the Judgment and Sentence. In his motion, Fisher requested that the court modify the judgment so as to give him thirty-one days credit toward his fine obligation at a rate of $47 per day, which would discharge his fine obligation entirely. He further asked that the remaining six days credit be applied toward his DOC commitment. Concluding that it lacked authority to amend the sentence, the District Court denied the motion to amend.
Fisher then filed a pro se petition to vacate fines with this Court. We construed the petition as a timely notice of appeal and asked the State to respond, which it has.
Fisher cites our decision in City of Billings v. Layzell (1990), 242 Mont. 145, 789 P.2d 221, for the proposition that a defendant must be given credit for time served against any fine imposed.
The State contends that the District Court correctly concluded that it did not have jurisdiction to modify the sentence imposed. Section 46-18-116(3), MCA, provides that a court can correct a factually erroneous sentence at any time, but that illegal sentences must be dealt with through appeal or post-conviction relief. The State contends that this statute does not apply since Fisher did not allege that the sentence was factually erroneous or that there was a conflict between the oral sentence and the written judgment. In the State's view, the court imposed a legal sentence when it committed Fisher to the DOC for thirteen months, imposed a fine and gave him credit for time served against his sentence, pursuant to §§ 46-18-403(1), MCA. It is the State's position that, whether the court credits the time served against the sentence pu
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