                                           No. 05-264

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 197N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ROBERT EUGENE DICKERSON,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Sixth Judicial District,
                     In and For the County of Park, Cause Nos. DC 02-43; DC 02-44,
                     Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Robert Eugene Dickerson, pro se, Deer Lodge, Montana.


              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Michael S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     Brett D. Linneweber, Park County Attorney, Livingston, Montana



                                                         Submitted on Briefs: February 8, 2006

                                                                    Decided: August 22, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and its case title, Supreme Court 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     Robert Eugene Dickerson (Dickerson) appeals the Sixth Judicial District Court’s

denial of his petition for clarification of judgment based on his allegation that the Department

of Corrections (DOC) is unlawfully garnishing his prison wages to apply to his restitution

obligations. He also claims that the District Court erred in imposing restitution on his 2003

felony sentence. We reverse the District Court on its denial of Dickerson’s petition for

clarification, and conclude that Dickerson waived his right to appeal the imposition of

restitution.

                                           ISSUES

¶3     A restatement of the issues on appeal is:

¶4     Did the District Court err in denying Dickerson’s petition for clarification of his

judgment?

¶5     Did the District Court err in imposing a restitution obligation on Dickerson in his 2003

sentence?




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                  FACTUAL AND PROCEDURAL BACKGROUND

¶6     Dickerson has an extensive criminal history but we limit our discussion to the specific

offenses pertinent to the case before us which are his 1996 felony stalking charge in Gallatin

County, a 1996 felony burglary charge also in Gallatin County, and his 2003 stalking and

issuing bad checks charges in Park County.

¶7     In 1997, the two Gallatin County cases were combined and Dickerson entered guilty

pleas to both offenses. He was sentenced to five years with the DOC for the stalking charge

and ten years with five years suspended for the felony burglary charge. He was also ordered

to pay $1,207.60 restitution to the Crime Victim’s Fund and the counseling fees incurred by

his stalking victim; $8,028.00 restitution for the burglary offense, and various administrative

and user charges. The sentencing order specified that the prison sentences would run

concurrently and that one-third of Dickerson’s prison wages were to be garnished for

restitution.

¶8     Dickerson claims to have discharged his stalking sentence and the prison portion of

his burglary offense on November 11, 1999.

¶9     In September 2002, at the request of the Gallatin County Attorney’s Office, the

Eighteenth Judicial District Court, Gallatin County, revoked Dickerson’s five-year suspended

sentence on his felony burglary offense for violation of conditions imposed on his suspended

sentence. The court then imposed a prison sentence on Dickerson and he was committed to

the DOC for five more years with appropriate credit for time already served. It is undisputed

that the new sentence did not reinstate the restitution obligation contained in Dickerson’s


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Gallatin County burglary sentence. Dickerson also states that he discharged this burglary

sentence completely on May 21, 2003.

¶10    In June 2003, Dickerson entered a guilty plea in the Sixth Judicial District Court, Park

County, to two felony charges: stalking and issuing bad checks. Dickerson and the Park

County Attorney agreed to two five-year concurrent sentences to the DOC. The plea

agreement also provided that Dickerson would pay full restitution for the bad checks he

passed in Park County, amounting to $2,205.00.

¶11    The District Court accepted the terms of the plea agreement. As to the restitution

agreement, the court ordered that Dickerson “shall pay at a minimum rate of $50.00 per

month beginning on parole or conditional release. Payments are due the first of each month

thereafter until the total is paid.” Judgment was entered on July 11, 2003.

¶12    In November 2003, Dickerson filed a Petition for Writ of Habeas Corpus before this

Court. He maintained that when he was returned to the custody of the DOC for his 2003

Park County charges, the DOC began unlawfully garnishing his prison wages and applying

the garnished funds to his Gallatin County offenses. He argued that the DOC could not

garnish his wages to pay restitution for the Gallatin County offenses because he had

discharged those sentences. The State countered that §§ 46-18-241 and -244, MCA, effective

October 1, 2003, authorized the collection of restitution payments under these circumstances.

¶13    On February 4, 2004, we issued an Order observing generally that § 46-18-244(6)(a),

MCA (2003), allowed the prison to deduct restitution from an inmate’s account. However,

we dismissed his Petition on the grounds that a complaint about wage garnishment does not


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fall within the parameters of a writ of habeas corpus. Thus, we declined to reach the merits

of his Petition.

¶14    On February 2, 2005, Dickerson filed a petition in the Sixth Judicial District Court

seeking clarification of his Park County judgment. He argued that DOC unlawfully began

garnishing his prison wages in October 2004 and applying the garnished funds to his Park

County restitution obligations. He maintained that because his Park County sentence

provided that he need not begin paying his restitution obligation until parole or conditional

release, DOC had no authority to take this garnishment action. Dickerson requested that the

District Court order DOC to stop garnishing his wages and to apply the unlawfully garnished

amount toward his child support payments. The State responded that the District Court no

longer had jurisdiction over Dickerson, having sentenced him to DOC, and that under § 46-

18-244(6)(a), MCA (2003), DOC was allowed to take a percentage of Dickerson’s wages and

apply it toward satisfaction of his restitution responsibility.

¶15    On February 9, 2005, the District Court denied Dickerson’s Petition on the grounds

that it was untimely and that DOC was statutorily authorized to take the challenged funds.

¶16    Dickerson filed a timely appeal.

                                STANDARD OF REVIEW

¶17    The District Court’s denial of Dickerson’s Petition to clarify his judgment constituted

a conclusion of law. We conduct plenary review of a district court’s conclusions of law to

determine whether the court’s conclusions are correct as a matter of law. City of Billings v.

Gonzales, 2006 MT 24, ¶ 6, 331 Mont. 71, ¶ 6, 128 P.3d 1014, ¶ 6 (citation omitted).


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                                       DISCUSSION

¶18    Dickerson argues that the District Court erred in denying his Petition contending that

it is unlawful for DOC to garnish his wages before he is paroled or conditionally released for

the purpose of paying toward his Park County restitution obligation. He maintains that his

sentence unequivocally states that his payment of restitution begins “on parole or conditional

release,” and that DOC has no authority to dismiss or disregard a lawful sentencing Order.

¶19    The State responds that Dickerson’s claim is barred by the doctrine of res judicata. It

claims that our Order denying Dickerson’s Petition for a Writ of Habeas Corpus addressed

Dickerson’s claim that DOC was unlawfully garnishing his prison wages, therefore

Dickerson is prohibited from requesting the same relief again. We disagree.

¶20    As noted above, we concluded in our February 4, 2004 Order that a petition for writ of

habeas corpus was an inappropriate vehicle for the relief Dickerson was seeking. In dicta,

we observed generally that § 46-18-244(6)(a), MCA (2003), allowed the prison to deduct

restitution from an inmate’s account. Our observation, however, was not a binding ruling on

DOC’s garnishment of Dickerson’s wages; therefore, res judicata does not bar Dickerson

from seeking relief from this Court.

¶21    Also as noted above, the District Court denied Dickerson’s Petition for clarification of

his July 2003 Judgment holding that: (1) if the Petition was an appeal from his Judgment, it

was untimely under Rule 5, M.R.App.P.; or (2) if the Petition was a request for post-

conviction relief, it was untimely under § 46-21-102, MCA.




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¶22    We conclude that the District Court incorrectly characterized the nature of

Dickerson’s pro se Petition. Dickerson was not seeking to appeal his sentence, nor was he

seeking relief from his Judgment. Therefore, the time limitations associated with Rule 5,

M.R.App.P or § 46-21-102, MCA, did not apply to his Petition.

¶23    We acknowledge that a petition styled “Petition for Clarification Judgement” [sic] is

not a model of clarity, but as we have held before, with some caveats, “[f]or purposes of

characterizing post-judgment motions, this Court has generally held that the substance, not

the caption, of the document controls.” Moody v. Northland Royalty Co. (1997), 286 Mont.

89, 95, 951 P.2d 18, 22. Dickerson’s Petition adequately argued that he was seeking relief

from what he perceived to be DOC’s violation of his Judgment terms and conditions. He was

not seeking relief from a court judgment or sentence; he was seeking relief from DOC’s

subsequent interpretation of his sentence. Therefore, we reverse the District Court’s Order

denying Dickerson’s Petition on the ground that he did not comply with the time limitations

of the appeal and post-conviction statutes.

¶24    The District Court also denied Dickerson’s Petition on the ground that § 46-18-

244(6)(a), MCA (2003) mandated that DOC “take a percentage, as set by department rule, of

any money in any account of the defendant administered by the department and use the

money to satisfy any existing restitution obligation.” The court noted that § 46-18-244,

MCA, enacted in 2003, was expressly retroactive to offenders who had unpaid restitution

obligations in effect on October 1, 2003.




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¶25    While Dickerson’s Park County restitution obligation originated on July 11, 2003, and

was unpaid as of October 1, 2003, this statute is nonetheless inapplicable to Dickerson’s

current circumstances. Section 46-18-103, MCA, vests exclusive authority to impose

sentences on the district court. The District Court expressly sentenced Dickerson to

restitution repayment obligations beginning after Dickerson is paroled or conditionally

released. The State did not appeal the District Court’s Order that restitution not be paid

while Dickerson was incarcerated; therefore the District Court’s Order is a final order and

DOC cannot ignore it simply because it has a conflicting policy or believes the Order

conflicts with §§ 46-18-241 or -244, MCA.

¶26    Dickerson also argues on appeal that DOC continues to unlawfully garnish his prison

wages and apply some of the garnished funds toward the restitution obligations imposed on

his Gallatin County sentences that have been fully discharged. While this element of the

DOC’s garnishment activities of Dickerson’s prison wages was not raised before the Sixth

Judicial District Court, it involves the same alleged unlawful activity that Dickerson raises

vis-à-vis his Park County restitution, i.e., DOC’s unlawful garnishment of his prison wage

account to pay restitution. Moreover, the State did not object to it being raised on appeal;

therefore, we will address it.

¶27    The record reveals that Dickerson discharged his Gallatin County sentences in

November 1999 and May 2003 respectively. Dickerson argues that, under the express

language of the Notice of Discharge, he has “fulfilled all the requirements imposed upon him

by the laws of the state of Montana,” and “received a full and complete discharge” from his


                                             8
Gallatin County sentences. As a result of the full discharge of these sentences, he maintains,

they no longer exist and DOC cannot revive them for purposes of collecting more restitution.

We agree.

¶28    The term “discharge” is not defined in the Montana criminal statutes, and therefore

we look to its common meaning. Black’s Law Dictionary defines “discharge” as “the release

of a prisoner from confinement.” Black’s 475 (7th ed. 1999). The term “unconditional

discharge” means “a release from confinement without any parole requirements to fulfill,”

and “a release from an obligation without any conditions attached.” Black’s 476 (7th ed.

1999). Additionally, this Court has defined “discharge” thusly: “A ‘discharge’ releases a

person entirely from custody; his debt to the state is considered ‘paid in full.’” State v.

Herman (1961), 139 Mont. 583, 590, 367 P.2d 553, 557.

¶29    Section 46-18-801(2), MCA, provides:

       Except as provided in the Montana constitution, if a person has been deprived
       of a civil or constitutional right by reason of conviction for an offense and the
       person’s sentence has expired or the person has been pardoned, the person is
       restored to all civil rights and full citizenship, the same as if the conviction had
       not occurred.

¶30    While the statutes relied upon by the State do indeed have retroactive application, §§

46-18-241 and -244, MCA, may be applied only to satisfy an “unpaid restitution obligation”

or an “existing restitution obligation.”       Because Dickerson had fully discharged the

sentences requiring payment of restitution, he had no existing or unpaid restitution obligation

vis-à-vis his Gallatin County offenses at the time he returned to DOC’s custody in July 2003.

Moreover, as Dickerson correctly points out, at the time the Gallatin County District Court


                                                9
revoked his suspended burglary sentence and sentenced him to prison time, the district court

did not reinstate his obligation to pay restitution for this charge. Without such a court-

ordered restitution obligation, DOC has no order to enforce.

¶31    We conclude, therefore, that DOC is not authorized to garnish Dickerson’s prison

wages for the purpose of applying such garnished funds to any former restitution obligations

arising out of his Gallatin County offenses.

¶32    Lastly, Dickerson argues that the Sixth Judicial District Court in Park County did not

have statutory authority to impose a restitution obligation on him at the time he was

sentenced in 2003. We decline to address this issue because even though a defendant can

challenge a sentence for illegality on appeal despite having failed to raise a contemporaneous

objection before the sentencing court, we still require a timely notice of appeal from the

sentence as a prerequisite to our consideration of this issue. See State v. Brister, 2002 MT

13, ¶ 16, 308 Mont. 154, ¶ 16, 41 P.3d 314, ¶ 16. Dickerson did not file a timely appeal from

his 2003 sentence therefore we decline to consider this issue.

                                      CONCLUSION

¶33    For the foregoing reasons, we reverse the District Court’s Order denying Dickerson’s

Petition on the grounds of untimeliness, and remand to the District Court for entry of an order

instructing DOC to cease garnishment of Dickerson’s wages and to reimburse all sums

collected since May 21, 2003. We dismiss Dickerson’s challenge to the District Court’s

2003 imposition of restitution.




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                                                         /S/ PATRICIA COTTER


We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER




Justice Jim Rice concurring.

¶34    I concur in the Court’s holding, but not in the entirety of the rationale. Because the

issue of the meaning and effect of a “discharge” of a criminal sentence (¶¶ 27-30) was not

argued below, I would not address the issue, instead waiting until the matter has been

properly raised and briefed. However, I concur in the Court’s conclusion regarding the

Gallatin County sentences on the ground stated by the Court in the latter part of ¶ 30—that

the restitution obligation was not reimposed upon revocation, and thus, the DOC has no order

to enforce.

                                                  /S/ JIM RICE




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