State v. Jivelekas11/3/2005
ot be confused with the question of whether the court had the "power" or "capacity" to impose the sentence in the first instance. An error in sentencing does not divest a district court of subject matter jurisdiction over the case before it.
Peña, 22 (emphasis added). See also Camarillo v. State, 2005 MT 29, 17, 326 Mont. 35, 17, 107 P.3d 1265, 17; and Sanders v. State, 2004 MT 374, 15, 325 Mont. 59, 15, 103 P.3d 1053, 15.
Despite the DOC's assertion that it "does not allege the district court imposed an illegal sentence," only that the court "did not have jurisdiction to hear Mr. Jivelekas's motion," we find the former to be a more accurate characterization of the DOC's objection. The DOC argues that "the lower court did not have statutory authority because Montana explicitly gives a probation officer, not the district court, the discretion to determine when a felony DUI offender should operate a motor vehicle." As we have previously noted: "A sentence not based on statutory authority is an illegal sentence." State v. Ruiz, 2005 MT 117, 12, 327 Mont. 109, 12, 112 P.3d 1001, 12 (citing Peña, 24). "An error in sentencing does not divest a district court of subject matter jurisdiction over the case before it." Peña, 22. Thus, even assuming, arguendo, that the District Court exceeded its statutory authority, it still had jurisdiction over Jivelekas's motion.
2. Whether the State is time-barred from appealing the District Court's order and judgment filed April 25, 2002.
Without question, the terms of condition #13 in the judgment and order grant both the probation officer and/or the sentencing court the authority to reinstate Jivelekas's driving privileges, creating a conflict with § 61-8-731, MCA. Jivelekas acknowledges as much, noting that the sentencing order's language conflicts "with the precise statutory language" of § 61-8-731, MCA.
In accordance with subsection (2) of § 46-20-103, MCA, which provides " he State may appeal from any court order or judgment the substantive effect of which results in . . .
(h) imposing a sentence that is contrary to law," the DOC filed an objection to Jivelekas's motion requesting approval to operate a motor vehicle. The DOC argued that based on § 61-8-731, MCA, the District Court had no authority to entertain a motion to grant Jivelekas permission to operate a motor vehicle.
On appeal, the DOC asks this Court to conclude that the District Court exceeded its scope of authority when it granted Jivelekas's motion for approval to operate a motor vehicle. We are precluded, however, from addressing the merits of this argument because the DOC failed to file a timely appeal under Rule 5(b), M.R.App.P. The Rule states that " n appeal from an order or judgment made appealable by section 46-20-103, Montana Code Annotated must be taken within 14 days." The District Court filed its judgment and order sentencing Jivelekas on April 25, 2002. Consequently, the DOC should have filed its appeal within fourteen days of April 25, 2002. Instead, the DOC filed an appeal on May 17, 2004. While § 46-18-116(3), MCA, provides that " he court may correct a factually erroneous sentence or judgment at any time," the statute clearly states that " llegal sentences must be addressed in the manner provided by law for appeal . . . ." (Emphasis added.) Since the DOC's appeal is not within the fourteen-day period provided by law, Rule 5(b), M.R.App.P., the appeal is time-barred.
This appeal is dismissed.
We Concur: KARLA M. GRAY, JOHN WARNER, PATRICIA O. COTTER, JAMES C. NELSON, JIM RICE, BRIAN MORRIS, Justices.
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