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State v. Herd4/6/2004
Submitted on Briefs: February 18, 2004
Michelle Lee Herd appeals a sentencing condition imposed in the District Court Judgment which followed her plea of guilty to four counts of negligent homicide. We reverse and remand.
ISSUE
Did the District Court err when it ordered, as a condition of her sentence for negligent homicide, that Herd be barred from driving for forty years?
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2000, Herd was living near Seattle, Washington, when she received an emergency phone call from her father. He said her mother had suffered a stroke and would probably not live more than 48 hours. Herd and her sister departed around 9:30 that evening, driving Herd's Dodge Ram half-ton pickup truck toward Great Falls with urgency.
Herd drove through the night, traveling east on Interstate 90. In Idaho, she pulled over and slept for about two and a half hours. In Missoula, she and her sister exited the vehicle, stretched and purchased espresso drinks. Herd continued driving and exited onto Highway 200 at Bonner at about 9:00 a.m. on December 28.
Highway 200 has one lane of travel in each direction. Shortly past Bonner, Herd pulled into the westbound lane to pass another eastbound vehicle, and neglected to return to the eastbound lane after completing the pass. Coming around a curve about 15 miles after she had entered Highway 200, Herd met with a westbound 1968 Volkswagen Beetle driven by Arundel Good, with her mother Stacy, her sister Kilty, and her brother Marcus, as passengers. Both vehicles swerved in an unsuccessful attempt to avoid a collision. They hit head-on and the Volkswagen caught fire. Its four occupants died. Herd and her sister suffered minor injuries.
Herd admitted that she had only slept two and a half hours out of the previous twenty-seven. She stated that, being accustomed to multi-lane highways, and having just exited a four-lane highway, she had gotten confused and did not realize she was in an oncoming lane of travel until she saw the approaching Volkswagen.
Herd was charged with four counts of Negligent Homicide pursuant to § 45-5-104, MCA (1999). She eventually pled guilty to the charges, pursuant to a Plea Agreement with the Missoula County Attorney's Office.
In the Plea Agreement, the State agreed to make several sentencing recommendations, including that Herd be given a twenty-year suspended sentence, and that she be barred from driving for five years, except in a bona fide emergency. At Herd's sentencing on February 25, 2002, the Deputy County Attorney made no specific recommendations outside of the terms set forth in the Plea Agreement. Two members of the Good family testified, and both recommended that her driving privileges be terminated.
At the sentencing and in its written Judgment entered April 26, 2002, the District Court sentenced Herd to concurrent twenty-year sentences on Counts I and II and concurrent twenty-year sentences on Counts III and IV, all suspended, with the two sets of concurrent sentences to be served consecutively. The District Court ordered Herd to enter and successfully complete a pre-release program; to remain under the jurisdiction of the Adult Parole and Probation Bureau for the forty-year term; to pay $200 per month in restitution for the twenty-year term of Counts I and II; to not own or be in control of any firearms or deadly weapons for the next forty years; to not enter any bars or casinos for the next forty years; to not drink or possess alcoholic beverages for forty years; to obtain any counseling requested by her Probation Officer; and to submit to drug and alcohol te
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