                                  No.      95-143
             IN THE SUPREMECOIJRT OF THE STATE OF MONTANA
                                        1995


STATE OF MONTANA,
             Plaintiff    and Respondent,
     -vs -
DONALD MARTIN,
             Defendant    and Appellant.



APPEAL FROM:         District  Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone,
                     The Honorable Russell G. Fagg, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                     Kelly J. Varnes; Hendrickson,        Everson,    Noenning   &
                     Woodward, Billings, Montana

             For Respondent:
                     Hon. Joseph P. Mazurek, Attorney   General,
                     Cregg Coughlin, Ass't Attorney   General,
                     Helena, Montana



                                        Submitted   on Briefs:       June 29, 1995
                                                      Decided:       July   25, 1995
Justice         Karla      M. Gray delivered                   the Opinion                  of the Court.

          Donald          Martin           (Martin)            appeals               from          the      Judgment          and
Commitment           entered            by     the      Thirteenth                 Judicial              District         Court,
Yellowstone             County,         on its       Order Revoking                    Suspended Sentence.                      We
affirm.
          Martin         pled         guilty      to     the         offense             of        felony         assault       in
November of 1993.                      The District            Court        sentenced              him to five            years'
imprisonment              in the Montana State                       Prison,            suspended            the entirety,
and placed          him on probation                   on certain                terms         and conditions.
          The      State         of     Montana         (State)             subsequently                  petitioned          for
revocation           of     the        suspended         sentence.                     After        a hearing          on the
petition,          the     District            Court      found           that       Martin          had violated             the
terms       and conditions                 of his       probation                and revoked                the     suspended
sentence.            The court               resentenced             Martin            on the        original          assault
conviction,             committing             him to      the director                       of    the     Department          of
Corrections             and Human Services                     (Department),                   pursuant         to § 46-14-
312, MCA, for             placement            in a community-based                       program or facility                    or
a State         correctional              institution               for     five       years.             Martin     appeals.

          Did the District  Court abuse its                                  discretion                  in revoking
          Martin's suspended sentence?
          Upon the filing                 of a petition               for    revocation                  showing     probable
cause that           the         defendant        has violated                a condition                  of a suspended
sentence,           a district                 court     may set                 a     hearing            on      revocation.
Section         46-18-203(l),                MCA.      The State             has the burden                    of proving           a
violation           by     a preponderance                 of         the        evidence.                 Section        46-l&?-
203(6),         MCA.        If        the court        finds         that        the     defendant             violated         the
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terms       and conditions                     of    the     suspended            sentence,         the        court       has a
range       of        options,           including           revoking          the      suspended             sentence          and
requiring              the defendant                to serve          the original             sentence             imposed or
any lesser              sentence.               Section       46-18-203(7),               MCA.
           The decision                 to revoke           a suspended              sentence          cancels          a prior
act        of        grace        and      is        a     matter          within        the      district              court's
discretion.                    State     v.     Kern        (1984),         212 Mont.           385,        388,       695 P.2d
1300,       1301.            The court          need only           find      the existence                 of a violation
of    a term            or      condition            of     the      suspended           sentence;            all       that      is
necessary              is that         the court           be reasonably              satisfied             from the facts
of    record            that      the     probationer's                conduct           "has     not        been what            he
agreed          it     would be if              he were given               liberty."            State        v. Lundquist

(1992),              251 Mont.          329,     331,       825 P.2d 204,               206 (citation                omitted);
§ 46-18-203(7),                     MCA.            Our      standard           of      review         is     whether           the
district             court       abused its          discretion.              Lundquist,           825 P.2d at 206.
           At the        time      the petition              to revoke Martin's                  suspended sentence
was filed,             Martin          had been charged with--and                        convicted            of--a      number
of misdemeanor                   offenses           committed         in Billings             on May 7 and July                   3,
1994; the offenses                      included          obstructing,              driving      without            a driver's
license,             DUI,       and no vehicle               insurance.              Later      that        year,       he went
to Great              Falls      with     the permission                   of his       probation             officer          and,
while       there,            was arrested               and charged          with       felony        assault.
           At         the       revocation                hearing,          Martin's            probation               officer
testified              to the convictions                    on the Billings                   charges;          Martin         did
not        dispute              those      convictions.                     The       probation              officer           also
testified              that       the     Great           Falls       charge         against       Martin            had been

                                                                  3
dismissed.
           The     District                 Court         found         that         the         Billings           convictions
violated          State         Rule #8, a condition                      of Martin's                 suspended            sentence
requiring             that       he comply            with        all      federal               and State              laws.       The
uncontroverted                  evidence            supports           the court's                finding.
          Martin        argues          that     there       was insufficient                       evidence             to support
the     revocation               because            his     probation            officer              stated,            after      the
Billings          convictions,                 that       he did         not     consider                those      convictions
serious          enough to warrant                    a petition               for     revocation.                     Indeed,      the
probation             officer          so testified               at the hearing.                          He testified,              in
addition,             that      it     was the Great               Falls        arrest            that      prompted             him to
seek the revocation                         and agreed that               the Great              Falls       charge        had been
dismissed.              Martin's             argument         of insufficient                       evidence            to support
the     revocation               is     premised           on the          dismissal                of     the      Great         Falls
charge       which           had        prompted            the         probation                officer          to      seek      the
revocation.
          Martin's           argument            is       unpersuasive                in     light          of     the     Billings
convictions.                 That        those        convictions               did        not     cause the probation
officer          to      seek         revocation             does         not        equate           to     an absence               of
sufficient             evidence              to support            the District                   Court's          finding         that
Martin       violated                 the      condition           requiring                him       to         obey     the      law.
Indeed,          as set          forth         above,        the        convictions                are      undisputed             and,
under       both         § 46-18-203,                 MCA, and Lundauist,                             they        constitute              a
sufficient              basis          for      revocation.                    Thus,         we conclude                  that      the
District          Court         did      not     abuse its              discretion                in revoking              Martin's
suspended             sentence.

                                                                   4
          Did the District    Court err in                                  referencing                 § 46-14-312,
          MCA, in resentencing    Martin?
          At      the         revocation                    hearing,         Martin's                  probation              officer
testified             to     his         concerns            over        Martin's          mental            condition.                  He
stated         his        beliefs          that     Martin           needed help                mentally         and the            only
way Martin            could         receive         that       help would be in an institution;                                     that

way,        according               to     the     probation               officer,             the      director             of     the
Department            could         have Martin               evaluated           at Warm Springs.                     Martin        did
not object                to the testimony.
          The        District              Court            agreed        with        the        probation               officer's
assessment,                stating          that       it     was in         Martin's             best        interest           to be
evaluated            at Warm Springs                    in order           that       appropriate               help      could          be
provided             to     him.           The court's                 Judgment         and Commitment                        ordered
Martin         committed             to the director                     of the Department                     pursuant             to     §
46-14-312,                MCA, for          placement            for       a term          of     five        years.           Martin
appeals,          asserting               that     reliance            on § 46-14-312,                   MCA, renders                the
sentence         unlawful.
          The State                argues          that,        absent           objection              to     the      probation
officer's            testimony,              Martin          waived        his     right         to appeal             this        issue
under       § 46-20-104(2),                       MCA.         While       the      State         is     correct          that       the
failure         to        object          ordinarily            would        preclude             our        review,          we have
created         a limited                exception           regarding           review         of a sentence                 alleged
to     be      illegal          or        exceeding             statutory             mandates.                 See State                v.
Lenihan          (1979),             184 Mont.                338,       602 P.2d               997.          We apply              that
exception            here.
          Section           46-14-312,             MCA, to which                  the District                Court       referred
in its         Judgment             and Commitment,                  relates          to sentencing                  a defendant
                                                                     5
who claims              that,      at the time              of the offense                   of which          convicted,            he
was suffering                   from      a mental          disease        or defect.                     See §§ 46-14-311
and 46-14-312,                    MCA.       Martin         did not        raise         such        a     claim      here;        the
probation               officer           merely         expressed             concerns            regarding            Martin's
mental       condition             during          the revocation               hearing.             That testimony                did
not relate              to Martin's                mental      condition             at the        time      of the May and
July,        1994,          offenses              upon      which        the        revocation             ultimately              was
premised           or      at     the      time      of the         original           assault            offense;           in    any
event,        the          probation               officer's           testimony                  does     not       provide             a
sufficient              basis       for      a determination                   of mental            disease          or defect.
As a result,               it     is clear          that    the District               Court        erred          in referring
to § 46-14-312,                   MCA, in its               Judgment and Commitment.                                We conclude
that     the statutory                  reference           must be stricken                  from the Judgment and
Commitment.
         Pursuant               to § 46-20-701(l),                  MCA, however,                  we do not reverse                     a
court     based on error                     unless         the error               was prejudicial.                   Once the
Judgment        and Commitment                       is modified           to delete                the reference                 to §
46-14-312,               MCA, Martin                 essentially               is     left         with      the      five-year
sentence       originally                 imposed for            the felony            assault            conviction,             with
credit       for         time      served          and discretion                   in the         Department           director
regarding           his         placement.
         Such a sentence                     is      authorized           under         § 46-18-203,                 MCA, which
permits       a district                  court--on          revocation--to                  reimpose              the original
sentence       or any lesser                       sentence.           Moreover,             it     is     clear      that        this
Court may modify                   a judgment              from which appeal                  is taken,             rather        than
reversing               and remanding                for       further         proceedings.                    See § 46-20-

                                                                   6
703(l),      MCA. We conclude           that,     under the District                   Court's      Judgment
and       Commitment       as     modified         by         this       Court,        Martin       has   not
established          prejudice      affecting           his      substantial           rights      so as to
require       reversal.
          The District       Court's         Judgment         and Commitment             is modified       to
strike      the reference          to § 46-14-312,               MCA, and is            affirmed      in all
other      respects.
          Pursuant     to Section       I,      Paragraph            3 (c),    Montana Supreme Court
1988 Internal          Operating       Rules,      this       decision         shall    not be cited       as
precedent       and shall        be published        by its           filing      as a public       document
with      the Clerk       of the Supreme Court                 and by a report             of its     result
to Montana Law Week, State                   Reporter          and West Publishing                 Company.
