                                      No, 13344

          I N THE SUPREME C U T O THE STATE O M N A A
                           OR    F           F OTN

                                           1976



T E STATE O M N A A
 H         F OTN,

                               P l a i n t i f f and Respondent,

          -VS   -
R N L GENE EMMETT,
 O AD

                               Defendant and Appellant,



Appeal from:          D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t ,
                      Honorable L. C , Gulbrandson, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

                Moses, Kampfe, T o l l i v e r and Wright, B i l l i n g s ,
                 Montana
                D. Frank Kampfe argued, B i l l i n g s , Montana

     For Respondent :

                Hone Robert L, Woodahl, Attorney General, Helena,
                 Montana
                John F. North argued, A s s i s t a n t Attorney General,
                 Helena, Montana
                Richard A, Simonton, County Attorney, argued,
                 Glendive, Montana



                                               Submitted:        October 13, 1976

                                                  Decided :      DEC 18
Filed :             1 8 I=
 M r . J u s t i c e Frank'I.Haswel1 d e l i v e r e d t h e Opinion of t h e Court.


          Defendant Ronald Emmett appeals from an order of t h e

d i s t r i c t c o u r t , Dawson County, revoking h i s d e f e r r e d imposition

of sentence and sentencing Emmett t o two and one-half years i n

Montana S t a t e Prison.

          On March 24, 1975 defendant Emmett was charged with felony

possession of marijuana i n v i o l a t i o n of s e c t i o n 54-133, R.C.M.

1947.     That same day he pled g u i l t y and t h e c o u r t ordered imposi-

t i o n of sentence d e f e r r e d f o r t h r e e years provided defendant

complied with a number of conditions during t h a t period.                            After

compliance with t h e conditions f o r t h r e e y e a r s , t h e charges would

be dismissed.

          O September 30, 1975 Emmett's probation o f f i c e r reported
           n

t o t h e county a t t o r n e y a l l e g e d v i o l a t i o n s of conditions of

Emmett's deferred sentence.                 The county a t t o r n e y i n t u r n p e t i -

tioned t h e c o u r t t o revoke t h e d e f e r r a l and impose sentence of

f i v e years i n prison.           Other v i o l a t i o n s subsequent t o t h e f i l i n g

of t h i s f i r s t p e t i t i o n were a l l e g e d p r i o r t o t h e hearing.

          Hearing was held December 23, 1975.                    The c o u r t found

Emmett v i o l a t e d t h e terms of h i s d e f e r r e d sentence, revoked t h e

d e f e r r a l , and sentenced him t o two and one-half years i n Montana

S t a t e Prison with c r e d i t f o r t h i r t y days previously served i n

t h e Dawson Cbunty j a i l .

          The i s s u e s a r e :

          (1)    Did t h e d i s t r i c t c o u r t have a u t h o r i t y t o revoke t h e

d e f e r r e d sentence and impose sentence?

          (2)    Was t h e r e s u f f i c i e n t evidence t o f i n d defendant

v i o l a t e d t h e conditions of h i s d e f e r r e d sentence and t o warrant

imposing t h e two and one-half year p r i s o n sentence?
         Defendant's argument on t h e f i r s t i s s u e i s t h a t t h e

d i s t r i c t c o u r t had relinquished i t s j u r i s d i c t i o n t o t h e Board

of Pardons by i t s o r d e r of March 24, 1975, d e f e r r i n g imposition

of sentence.        Condition 10 of t h a t o r d e r reads:

          "10) The Defendant i s placed under t h e supervision
          and c o n t r o l of t h e S t a t e Board of Pardons and i s t o
          abide by t h e i r r u l e s and regulations".

         Defendant r e l i e s on t h e language of t h e l a s t paragraph of

s e c t i o n 95-2206, R.C.M.     1947, which reads:

                "Any judge who has suspended t h e execution of a
         sentence o r d e f e r r e d t h e imposition of a sentence
         of imprisonment under t h i s s e c t i o n , o r h i s successor,
         i s authorized t h e r e a f t e r , i n h i s d i s c r e t i o n , during -
         t h e period of such suspended sentence o r d e f e r r e d
         imposition of sentence t o revoke such suspension o r
         impose sentence and order such person committed, o r
         may, i n h i s d i s c r e t i o n , order t h e p r i s o n e r placed
         under t h e j u r i s d i c t i o n of t h e s t a t e board of pardons
         a s provided by law, o r r e t a i n such j u r i s d i c t i o n with
         t h i s c o u r t . P r i o r t o t h e revocation of an o r d e r
         suspending o r d e f e r r i n g t h e imposition of sentence,
         t h e person a f f e c t e d s h a l l be given a hearing."
         (Emphasis supplied.)

         The t r i a l judge followed t h e provisions of s e c t i o n 95-

2206, R.C.M.      1947.     H e deferred sentence.            Condition 10 of t h e

c o u r t ' s o r d e r placed E m m e t t under t h e supervision of a probation

o f f i c e r , and t h e r u l e s and r e g u l a t i o n s of t h e Board of Pardons.

T h e r e a f t e r t h e c o u r t held a hearing, found Emmett had v i o l a t e d

t h e c o n d i t i o n s , and i n i t s d i s c r e t i o n imposed sentence of i m -

prisonment.

         Any u n c e r t a i n t y was eliminated by t h e c o u r t ' s remarks

t o defendant when he d e f e r r e d imposition of sentence t o t h e

e f f e c t t h a t i f defendant d i d not abide by t h e conditions of

d e f e r r a l , t h e c o u r t would impose a sentence of imprisonment and

by t h e following provision of t h e c o u r t ' s order of March 24:
          " I T IS FURTHER ORDERED, ADJUDGED AND DECREED
          t h a t i f t h e Defendant f a i l s t o comply with any
          of t h e above c o n d i t i o n s a bench warrant of a r r e s t
          w i l l be i s s u e d , t h e Defendant apprehended and t h e
          s a i d Defendant w i l l be required t o appear before
          t h i s Court f o r f u r t h e r proceedings    ."
          Defendant's argument on t h e second i s s u e i s t h a t t h e r e

was no c r e d i b l e evidence of a v i o l a t i o n of t h e c o n d i t i o n s of

t h e d e f e r r e d sentence.   Additionally, he argues t h e evidence

presented d i d n o t warrant t h e imposition of a prison                   sentence

and he was "violated1' because t h e p a r o l e o f f i c e r and county

a t t o r n e y believed he had a bad a t t i t u d e .

          I n support of i t s o r d e r imposing sentence t h e c o u r t made

t h e s e findings of f a c t :

          "1) The Court hereby f i n d s from t h e testimony
          and t h e admission of t h e Defendant t h a t while on
          probation he was i n t h e Jordan ';Hotel, Lulhaven Bar,
          Glendive Moose Club and Beer Jug, a l l of which
          places s e r v e i n t o x i c a t i n g l i q u o r s .

          "2) That September 8 , 1975, h e was present a t t h e
          scene of aggravated a s s a u l t upon p o l i c e o f f i c e r s and
          t h a t he joined i n t h e y e l l i n g and encouraged o t h e r s
          t o 'do a good j o b ' .

          "3) The testimony of witnesses and admission of
          t h e Defendant i n d i c a t e s t h a t he shouted o b s c e n i t i e s
          o r p r o f a n i t i e s a t a P o l i c e Department d i s p a t c h e r while
          i n c a r c e r a t e d i n t h e Dawson County j a i l on A p r i l 6 , 1975.

         "4) That Condition #2 of t h e Court's p r i o r judgment
         was v i o l a t e d i n t h a t t h e Defendant f a i l e d t o reimburse
         Dawson County f o r t h e c o s t s of h i s j a i l i n c a r c e r a t i o n
         o r attorney's fees.

          "5) That t h e evidence and admission of t h e Defendant
          i n d i c a t e s he pleaded g u i l t y t o a charge of r e c k l e s s
          d r i v i n g while on probation, t h a t he was involved i n an
          a c c i d e n t , and t h a t l i q u o r was found i n h i s v e h i c l e .

          "6) That t h e Defendant admitted he f o r f e i t e d bond f o r
          speeding while on probation.

          "That t h e admission of t h e Defendant and t h e evidence
          a t t h e hearing, a s s e t f o r t h above, a r e v i o l a t i o n s of
          t h e terms and conditions of t h e defendant's probation."
       There is no real conflict as to the underlying facts.

       Condition 5 of defendant's deferred sentence was that

he "not frequent any place where intoxicating liquor or beer

is sold."   Emmett admitted going into the Jordan Hotel dance

hall one night to attend a dance where drinks could be brought

in from the bar in another room. He testified he did not have

any intoxicants and he had permission from his probation officer.

The probation officer testified against Emmett but did not deny
this statement. Emmett admitted going into the Lulhaven Bar
to tell another man he could come to work for Emmett's employer.

Defendant admitted he had been at the Moose Club one night to
attend a wedding dance but that he was not drinking. He testified
he Went into the Beer Jug on a Sunday afternoon and had a sand-

wich and a 7-Up soft drink at the 1unch:counter.
       Condition 7 was:

       "The Defendant shall conduct himself in a . law
        abiding manner and shall not violate any law
       of the United States or of the State of Montana
       or the ordinance of any city or town during said
       term."
At the wed,dingdance at the Moose Club 'an altercation broke out

involving several police officers and a number of young people.

Subsequently Emmett testified for the defense of two young men
charged with assault against the police officers. He admitted

being in the crowd and shouting encouragement, but also testified
that he prevented another young man from hitting an officer and
that he left early.
       Emmett was required to serve thirty days in jail as a
condition of deferment.   He admitted that once during that time
he shouted obscenities at the female police dispatcher when his

meal was a couple of hours late.

                           - 5 -
           Emmett t e s t i f i e d he received a r e c k l e s s d r i v i n g c i t a t i o n

when he and a f r i e n d saw each o t h e r on a s t r e e t and attempted

t o p u l l t h e i r c a r s alongside each o t h e r r e s u l t i n g i n a s e r i o u s

collision.        He claimed t h e empty b o t t l e s and l i q u o r found i n

h i s c a r a t t h a t time were probably l e f t from when a f r i e n d borrowed

his car.       He admitted receiving a speeding c i t a t i o n and f o r f e i t i n g

bond on another occasion.

           Conditions 2 and 3 were " t h e Defendant pay h i s own c o s t s

of i n c a r c e r a t i o n including board a t t h e r a t e of $3.00 per day"

f o r t h e t h i r t y days served i n j a i l and t h a t " t h e Defendant w i t h i n

a reasonable time, reimburse Dawson County f o r t h e f e e s charged

by h i s c o u r t appointed attorney".               He t e s t i f i e d he consulted

h i s c o u r t appointed a t t o r n e y on t h r e e occasions concerning t h i s

and concluded he had t o pay w i t h i n t h e t h r e e years of h i s d e f e r r e d

sentence unless he             was asked t o pay sooner, which he was.not.

          Defendant argues t h a t h i s probation o f f i c e r ' s negative

f e e l i n g s towards him and h i s views on t h e marijuana laws a r e t h e

r e a l source of h i s d i f f i c u l t y .     He argues t h a t over t h e n i n e

month period t h e probation o f f i c e r should have admonished him

f o r h i s v i s i t s t o t h e b a r s and should have requested t h e ordered

payments be made t o t h e county before charging him with v i o l a t i o n s

f o r t h e s e shortcomings.

          The s t a t e argues t h e evidence was s u f f i c i e n t t o support

t h e c o u r t ' s f i n d i n g t h a t Emmett v i o l a t e d t h e conditions imposed

by t h e c o u r t and t h a t although none of t h e s e a c t s s i n g l y need lead

t o a revocation of t h e d e f e r r e d sentence, t h e i r cumulative e f f e c t

i n d i c a t e s a contempt f o r t h e c o u r t ' s o r d e r , t h e r u l e s and r e g u l a t i o n s

of t h e Board of Pardons, and t h e laws of t h e s t a t e of Montana.
           Although p a r t of t h e evidence supporting some of t h e

a l l e g e d i n d i v i d u a l v i o l a t i o n s i s questionable, we f i n d t h e r e

was s u b s t a n t i a l evidence t o support t h e d i s t r i c t c o u r t ' s con-

c l u s i o n t h a t Emmett v i o l a t e d t h e terms of h i s deferred sentence.

           Defendant f u r t h e r argues t h a t h i s a c t s do n o t warrant

a sentence of imprisonment i n t h e Montana S t a t e Prison f o r

two and one-half years.                 However t h a t may be, t h e sentence i s

f o r conviction of a felony f o r which t h e s t a t u t e provides a

p o s s i b l e sentence of imprisonment n o t t o exceed f i v e years.

Section 54-133(c), R.C.M.                 1947.      W hold t h e sentence l e g a l and
                                                      e

t h e c o u r t acted w i t h i n i t s d i s c r e t i o n .   W leave t o t h e Sentence
                                                                 e

Review Division a review of t h e e q u i t i e s of t h e sentence.

           Accordingly, t h e judgment i s affirmed.




                                                      Justice




    .JudgeC/ s i t t i n g f o r J u s t i c e
    Wesley C a s t l e s .
