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State v. Jivelekas11/3/2005
Submitted on Briefs: July 26, 2005
The State of Montana appeals the District Court's order filed May 3, 2004, granting Billy Jivelekas approval to operate a vehicle for employment purposes. We affirm.
The State argues on appeal that § 61-8-731, MCA (2001), legally prohibits the District Court from granting Jivelekas approval to operate a motor vehicle. Jivelekas argues that the appeal should be dismissed because the State did not file its appeal within fourteen days of the District Court's original order and judgment filed April 25, 2002, as mandated by Rule 5(b), M.R.App.P. Because we agree with Jivelekas that the State's appeal is untimely, we dismiss.
We state the issues as follows:
1. Whether the District Court had jurisdiction to hear Jivelekas's motion.
2. Whether the State is time-barred from appealing the District Court's order and judgment of April 24, 2002.
BACKGROUND
On April 25, 2002, the Montana Thirteenth Judicial District Court of Yellowstone County filed judgment convicting Jivelekas of Count I, Driving Under the Influence of Alcohol and/or Drugs (Felony), and Count II, Driving while the Privilege to do so is Suspended or Revoked (Misdemeanor). The District Court sentenced Jivelekas to the Department of Corrections (DOC) for thirteen months, followed by five years of probation. Jivelekas completed his term with the DOC and, on October 21, 2002, successfully graduated from the Warm Springs Addiction Treatment and Change (WATCh) program. The next day, Jivelekas entered the department's probation program in Billings under the supervision of Probation Officer Mary Aggers.
The issue disputed by the parties stems from condition #13 of the District Court's original judgment and order filed April 25, 2002, which states:
The defendant shall not at anytime, anywhere, any place nor under any circumstances drive/operate a motor vehicle unless approved by the sentencing Court and/or defendant's Supervising Officer at such period when determined defendant possesses a valid driver's license and insurance. At such period when determined defendant is legally able to drive/operate a motor vehicle, defendant shall maintain an Ignition Interlock system on his motor vehicle for a period of no less than (1) one year while on supervised probation. [Emphasis added.]
Nearly two years later, on April 8, 2004, Jivelekas filed with the District Court a motion asking for approval to operate a motor vehicle, pursuant to condition #13 of the judgment and order. Jivelekas informed the court that he had served his time with DOC, as well as successfully completed the WATCh program, along with sixteen weeks of Aftercare, eight weeks of Relapse Prevention, one year of monthly monitoring, and ninety Alcoholics Anonymous meetings in ninety days. He also had no incidences of drinking while on probation.
In his motion, Jivelekas explained that he worked full-time at Rocky Mountain Leisure Spas making repair calls at customers' homes. Because this employment requires driving to job sites, Jivelekas's inability to operate the company vehicle required his employer, Scott Oleson, or another employee, to serve as his driver. Due to this inconvenience, Jivelekas's hours dropped to almost half, and according to Oleson, created a hardship on the company. For these reasons, Jivelekas requested that the District Court authorize him to drive his personal vehicle to and from work as long as he maintained a valid driver's license and equipped his vehicle with an ignition interlock device. Jivelekas further requested permission to operate the company vehicle, not equipped with an inte
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