                                                                                              April 14 2015


                                           DA 14-0534
                                                                                           Case Number: DA 14-0534

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 106N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MARK ALLEN BENJAMIN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-2001-212
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Carl B. Jensen, Jr., Attorney at Law, Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Chief Deputy
                        County Attorney, Missoula, Montana



                                                     Submitted on Briefs: March 11, 2015
                                                                Decided: April 14, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by unpublished opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Mark Allen Benjamin (“Benjamin”) appeals from the final judgment of the Fourth

Judicial District Court, Missoula County, revoking his suspended sentence. The issue on

appeal is whether the District Court erred when it denied Benjamin’s motion to dismiss

the petition to revoke his suspended sentence. We affirm.

¶3     In November 2001, Benjamin pled guilty in Missoula County to felony

theft-common scheme and nolo contendere to felony theft (DC 01-212). The Missoula

District Court sentenced him to the Department of Corrections for ten years, with five

years suspended, on the felony theft-common scheme charge and to the Montana State

Prison for forty years, all suspended, on the theft charge. The District Court imposed the

sentences concurrently and designated Benjamin a persistent felony offender. In March

2006, Benjamin discharged to the suspended portion of his sentence. Pursuant to the

terms and conditions of the suspended sentence, Benjamin was required to remain law

abiding.

¶4     On December 5, 2013, Glacier County officials arrested Benjamin after he

admitted to stealing grain from his employer. He was booked into the detention facility



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at 2:30 p.m. and held on a probation hold for Missoula County case, DC 01-212. On

December 6, 2013, the Glacier County Attorney charged Benjamin with four counts of

Theft of Property by Embezzlement in violation of § 45-6-301(7)(a), MCA, and the

District Court set bail at $250,000.

¶5     On December 20, 2013, the State filed a Petition to Revoke Benjamin’s suspended

sentence in Missoula County, DC 01-212. The Petition alleged that Benjamin violated

the terms of his suspended sentence when he embezzled more than $400,000 from his

employer. Three days later, the Missoula District Court issued a bench warrant and set

bail at $10,000.

¶6     At the end of December, the Glacier County District Court held a bail hearing and

reduced Benjamin’s bond. Benjamin then posted bond and was released. Documents

from both parties, filed in Missoula District Court, refer to the fact that Benjamin posted

bail and was released, but conditions of the bail did not permit him to travel to Missoula.

On April 3, 2014, Benjamin filed a motion to dismiss the petition in Missoula District

Court.1

¶7     On May 19, 2014, the District Court in Missoula County held a hearing and denied

Benjamin’s motion to dismiss.          The District Court concluded that district courts

commonly do not require a separate hearing when a new charge is filed the day after a

defendant is detained on a probation hold and bond is set on the new charge.

Additionally, the District Court rejected Benjamin’s contention that he was able to post


       1
          Benjamin has confused some of the dates in his brief. The record reflects the correct
dates as stated herein.


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bond on the Glacier County charges, but was held on the Missoula County case. The

District Court concluded that Benjamin was in court, with counsel, when bond was set in

the Glacier County case and could have raised the matter at that time.

¶8     In June 2014, Benjamin pled guilty to one count of embezzlement in Glacier

County. On August 11, 2014, the Missoula District Court revoked Benjamin’s suspended

sentence in DC 01-212 and sentenced him to the Montana State Prison.              Benjamin

appeals.

¶9     “We review a district court’s decision to revoke a suspended sentence for an abuse

of discretion. A district court has statutory authority to revoke a suspended sentence

under § 46-18-203(7), MCA.” State v. Martinez, 2008 MT 233, ¶ 15, 344 Mont. 394,

188 P.3d 1034 (internal citations omitted). “The grant or denial of a motion to dismiss in

a criminal case is a question of law which we review de novo.” State v. Goebel, 2001

MT 73, ¶ 10, 305 Mont. 53, 31 P.3d 335 (citations omitted).

¶10    A probationer can be taken into custody on allegations of a probation violation in

two ways. Goebel, ¶ 18. A judge may issue a warrant for the offender’s arrest. Section

46-23-1012(1), MCA.      Alternatively, a probation officer may arrest the offender or

authorize the arrest by another officer. Section 46-23-1012(2), MCA. When a probation

officer authorizes the arrest, the offender may be held, without bail, for 72 hours. Section

46-23-1012(3), MCA. Within 72 hours, the officer shall release the probationer, hold an

intervention hearing, or “arrange for the probationer to appear before a magistrate to set

bail.” Section 46-23-1012(3)(a)-(c), MCA.




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¶11     According to Benjamin, he was not seen by a magistrate within 72 hours as

required by § 46-23-1012, MCA. Glacier County officials arrested Benjamin and booked

him on the probation hold on December 5, 2013. The next day, the Glacier County

Attorney filed charges against Benjamin and the District Court set bail. The State filed

the Petition to Revoke Benjamin’s Missoula County suspended sentence on December

20, 2013.

¶12     The District Court did not err when it denied Benjamin’s motion to dismiss.

Glacier County officials initially held Benjamin on a probation hold, pursuant to

§ 46-23-1012(2), MCA. However, the next day he was charged with embezzlement and

the Glacier County judge set bond. There is nothing in the record establishing, and

Benjamin has failed to demonstrate, that the probation hold lasted longer than 72 hours

without bond or the opportunity to see a magistrate. Nothing in the record suggests that

Benjamin tried to post bond on the Glacier County charges but was denied release due to

a probation hold. In fact, the record shows that he did post bond and was released on

bail.

¶13     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law was correct. The District Court did not err in denying Benjamin’s

motion to dismiss.

¶14     Affirmed.


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                          /S/ MIKE McGRATH

We Concur:

/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




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