                                                                                      December 4 2012


                                         DA 12-0220

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2012 MT 278N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TROY BUTLER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fifth Judicial District,
                      In and For the County of Beaverhead, Cause No. DC 11-3410
                      Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jason Armstrong; Law Office of Jason Armstrong, P.C,
                      Bozeman, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; C. Mark Fowler,
                      Assistant Attorney General, Helena, Montana

                      Jed C. Fitch, Beaverhead County Attorney; Evan O. Moppert,
                      Dillon, Montana



                                                  Submitted on Briefs: November 8, 2012

                                                             Decided: December 4, 2012


Filed:

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


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

Rules, this case is decided by memorandum 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     Troy Butler appeals from the District Court’s order filed March 13, 2012 revoking

his probation and imposing sentence. We affirm.

¶3     In February 2010, Butler was charged in Justice Court in Beaverhead County with

two counts of hunting without landowner permission. He pled guilty to those offenses in

March 2010. The Justice Court sentenced Butler to six months in jail on each count, with

the sentences suspended upon Butler’s compliance with a number of conditions. One of

those conditions was that Butler could not hunt or accompany any other person “while

hunting, fishing and/or trapping.” Butler did not appeal.

¶4     In December 2010, Warden Murphy of the Montana Department of Fish, Wildlife

and Parks discovered that Butler had participated in a coyote calling and shooting event

held in New Mexico. The information included a photograph of Butler and his team mate

for the event, posing with rifles and dead coyotes. In January 2011, the State filed a

motion to revoke the suspended sentence in Justice Court based upon the information

from New Mexico. The Justice Court revoked the suspended sentences and Butler

appealed to District Court.


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¶5     In the proceedings in District Court Butler admitted that he hunted in New Mexico

and that he did so with another individual. He admitted that this constituted a violation of

the conditions of his prior suspended sentences. The District Court revoked the prior

suspended sentences, imposing some jail time and some fines, and re-suspending the

remainder of the jail time and the fines. In addition, the District Court continued the prior

condition that Butler not accompany any other person while hunting, fishing or trapping.

¶6     On appeal Butler contends that the State lacks jurisdiction to control his hunting

activities outside the State of Montana; that the condition that he not accompany any

other person while hunting was an abuse of discretion; and that the District Court lacked

the power to preclude him from hunting in “compact” states.

¶7     The conditions that Butler complains of were imposed first by the Justice Court

and then by the District Court upon Butler’s appeal, as conditions of suspended sentences

imposed after Butler pled guilty to the two offenses in 2010. Upon a guilty plea to an

offense, a court may suspend execution of the sentence. Section 46-18-201(2), MCA.

The court may impose any reasonable restrictions or conditions that the defendant must

follow during the period of a suspended sentence, including any “reasonable restrictions

or conditions considered necessary for rehabilitation or for the protection of the victim or

society.” Section 46-18-201(4), MCA. Conditions may include restriction on freedom of

association and freedom of movement, State v. Muhammad, 2002 MT 47, ¶ 24, 309

Mont. 1, 43 P.3d 318, and “any other limitation reasonably related to the objectives of

rehabilitation and the protection of the victim and society.” Section 46-18-202(1), MCA.

Conditions of a suspended sentence must have a “nexus” to the offense or to the offender.

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State v. Zimmerman, 2010 MT 44, ¶ 17, 355 Mont. 286, 228 P.3d 1109. These same

principles apply to offenses involving hunting violations. State v. Ruiz, 2005 MT 117, ¶

17, 327 Mont. 109, 112 P.3d 1001.

¶8     As in Ruiz, the conditions imposed upon Butler were occasioned by his long

history of repeated criminal offenses relating to hunting and property access for hunting,

both in Montana and in other states. At the time of his 2010 offenses in Montana, for

example, Butler had lost his hunting privileges in Utah for hunting violations in that state.

That resulted in a hunting license suspension until 2019. Warden Murphy testified in

District Court that restrictions on accompanying others who are hunting serve to prevent

offenders from being in hunting situations where they could re-offend. Butler’s record of

prior offenses shows that he cannot be trusted to be in hunting situations without re-

offending. Therefore, the conditions imposed by the District Court were reasonable and

not an abuse of discretion. Ruiz, ¶ 22.

¶9     Butler argues that State v. Gatts, 279 Mont. 42, 928 P.2d 114 (1996), controls his

case and that under § 87-1-102, MCA (2009), the District Court was precluded from

imposing the disputed conditions on his suspended sentence. Whatever the ongoing

merits of Gatts after the repeal of § 87-1-102, MCA, it does not apply here. Gatts

addressed the specific charges that could be brought against a defendant charged with

violations of hunting regulations and was based upon a statute that has since been

repealed. Gatts did not address the conditions of a suspended sentence imposed under §§

46-18-201 and -202, MCA. Ruiz, ¶ 17.



                                             4
¶10    Butler contends that the State of Montana lacks the power to control his conduct

outside of this State, and that his coyote hunt was not only in New Mexico but on the

Navajo Reservation. It is well established that a defendant’s probation can be revoked

for acts outside the jurisdiction, even if those acts are legal in the other jurisdiction.

United States v. Dane, 570 F.2d 840, 845 (9th Cir. 1977).

¶11    Last, Butler contends that the District Court lacked the power to enforce the

Interstate Wildlife Violator Compact, § 87-1-801, MCA, and that only the Department of

Fish, Wildlife and Parks could do so. The Compact allows member states, including

Montana, to recognize hunting license suspensions imposed by other Compact states. As

noted above, Butler’s hunting privileges were revoked in Utah prior to the time the

District Court acted in this case, and the Montana DFWP had recognized that revocation.

Butler’s argument is not supported by the facts or by the provisions of the Compact.

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

our Internal Operating Rules, which provides for memorandum opinions. The issues in

this case are ones of judicial discretion and there clearly was not an abuse of discretion.

¶13    Affirmed.

                                                  /S/ MIKE McGRATH


We concur:

/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
/S/ BRIAN MORRIS



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