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                                                                No. 99-156

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2000 MT 18

                                                              298 Mont. 135

                                                              995 P. 2d 963



                                                      STATE OF MONTANA,

                                            DEPARTMENT OF CORRECTIONS,

                                                        Plaintiff and Appellant,

                                                                       v.

                                          BILLIE JOE PHELPS, a/k/a BILLIE JOE

                                                                NEWTON,

                                                     Defendant and Respondent.



                            APPEAL FROM: District Court of the Eighth Judicial District,

                                                In and for the County of Cascade,

                                         Honorable Marge Johnson, Judge Presiding


                                                     COUNSEL OF RECORD:

                                                              For Appellant:

                             David L. Ohler and Diana Leibinger-Koch, Special Assistant

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                                               Attorneys General, Helena, Montana

                                                             For Respondent:

                           Ronald L. Bissell, Public Defender's Office, Great Falls, Montana



                                            Submitted on Briefs: December 29, 1999

                                                      Decided: January 27, 2000

                                                                     Filed:

                                    __________________________________________

                                                                     Clerk


Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1.Billie Joe Phelps was sentenced in the Eighth Judicial District Court, Cascade County,
for his fourth offense of driving under the influence of alcohol (DUI) and driving while his
license was suspended or revoked. On appeal, the Department of Corrections argues that
the District Court failed to comport with the applicable DUI sentencing law pursuant to §
61-8-731, MCA (1997). We remand Phelps's sentence to be modified according to our
holding in this opinion.

¶2.We restate the issues as follows:

¶3. Does § 61-8-731, MCA (1997), permit the District Court to suspend any of Phelps's
imprisonment term?

¶4. Does the District Court have statutory authority to award Phelps double credit for time
served when he completes a treatment program?

¶5. Can the District Court order Phelps committed to a prerelease program or intensive
supervision?


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                              FACTUAL AND PROCEDURAL BACKGROUND

¶6.The District Court originally sentenced Phelps for his fourth DUI offense, but after it
realized that Phelps committed this offense on the day § 61-8-731, MCA (1997), became
effective the District Court re-sentenced him on December 22, 1998, pursuant to the new
law. Consequently, the District Court imposed the following sentence:

The Defendant is sentenced to 13 months of incarceration with the Department of
Corrections, with all time SUSPENDED, except time served, which the Court believes to
be 227 days, plus Four Years of probation with the Department of Corrections. He must
enter and complete an appropriate treatment program. The Court believes inpatient
chemical dependency treatment is probably most appropriate. Upon successful completion
of treatment and follow up aftercare and relapse prevention, the Court will give him
DOUBLE CREDIT for time served in treatment. Once he completes treatment, the
Defendant shall enter and complete either a Pre-Release Program or an ISP. The
Defendant must report daily to his supervising officer and abide by a 6:00 p.m. to 7:30 a.
m. curfew until he is accepted into treatment.

¶7.The Department of Corrections contends that this sentence does not comport with § 61-
8-731, MCA (1997).

                                                   STANDARD OF REVIEW

¶8.Although the State never raised the issue of whether Phelps's sentence comports with
the new law, this Court may review any sentence imposed in a criminal case if it is alleged
that the sentence is illegal or exceeds its statutory mandates. See Petition of Hans, 1998
MT 7, ¶ 36, 288 Mont. 168, ¶ 36, 958 P.2d 1175, ¶ 36. Our review is limited to questions
of legality and whether the sentence is within the parameters provided by the statute. See
Hans, ¶ 36. This is a question of law, which we review to determine if the District Court's
interpretation is correct. See State v. Long (1995), 274 Mont. 228, 236, 907 P.2d 945, 950.

                                                                  ISSUE 1

¶9.Does § 61-8-731, MCA (1997), permit the District Court to suspend any of Phelps's
imprisonment term?

¶10.Section 61-8-731, MCA (1997), provides:


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(1) On the fourth or subsequent conviction under 61-8-714 or 61-8-722 for a violation of
61-8-401 or 61-8-406, the person is guilty of a felony and shall be punished by:

(a) imprisonment for a term of not less than 6 months or more than 13 months, the
imposition or execution of which may not be suspended, and during which the person is
not eligible for parole.

(Emphasis added.)

¶11.Where the language of a statute is clear and unambiguous, we interpret the statute by
its plain meaning. See Howell v. State (1994), 263 Mont. 275, 284, 868 P.2d 569, 573.
This statute unambiguously states that the District Court cannot suspend any time of
imprisonment; therefore, the District Court must strike the language from Phelps's
sentence regarding the time suspended.

¶12.The Department of Corrections suggests that Phelps should instead be sentenced to
incarceration for 227 days, which he already has served. This would satisfy the 6-month to
13-month requirement of the statute and, in effect, produce the same result as suspending
Phelps's sentence. However, a determination of this matter is not appropriate on this
appeal.

                                                                  ISSUE 2

¶13.Does the District Court have statutory authority to award Phelps double credit for time
served when he completes a treatment program?

¶14.Central to the parties' disagreement on this issue is whether Phelps's participation in a
treatment program is part of his incarceration or part of probation. As the Department of
Corrections points out, the District Court has no statutory authority to award additional
credit for the time a defendant serves on probation. It discerns that the only statute which
allows the court to give a defendant credit aside from the actual days a defendant serves is
§ 46-18-403, MCA, which provides that the court must give a defendant "against whom a
judgment of imprisonment is rendered . . . credit for each day of incarceration prior to or
after conviction." Although Phelps does not cite this or any other statute to justify his
sentence, he argues that he should be awarded double credit because his participation in a
treatment program is part of his incarceration.



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¶15.Phelps argues that incarceration is defined by more than just a place and that we
should consider the surrounding circumstances. On this basis, he informs us that he
participated in an inpatient treatment program in which he was transferred pursuant to jail
transfer policies from the Cascade County Detention Center to the Montana Chemical
Dependency Center and then back to the detention center, where he was given double
credit for the time he served and then released. He asserts that he was in effect on inmate
status because had he left the Montana Chemical Dependency Center the proper
authorities would have been notified and he would have faced an escape charge. His
assertion is based on our holdings in State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247,
State v. Savaria (1990), 245 Mont. 224, 800 P.2d 696, and State v. Whiteshield (1980),
185 Mont. 208, 605 P.2d 189. In each of these cases, however, the defendants were
inmates of the Montana State Prison who escaped while temporarily away from the prison,
and their incarceration status was not at issue. In these cases, we considered instead
whether the defendants should be convicted of felony escape or misdemeanor escape
pursuant to § 45-7-306(3), MCA. None of the cases involved an escape from a chemical
treatment program. Thus, they do not lend support to Phelps's assertion that his
participation in a treatment program was on inmate status.

¶16.Given a plain reading of the language of Phelps's sentence, we conclude that Phelps's
participation in a treatment program was a condition of his probation. Section 61-8-731,
MCA (1997), does not grant the District Court authority to mandate that a defendant
receive inpatient treatment unless it is a condition of probation.

¶17.Phelps does not cite any law that provides the District Court authority to award
additional credit for the time he serves on probation. Without specific statutory authority,
the District Court does not have power to award him double credit for the time he served
in treatment. See State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029. Thus,
the District Court must strike this language in Phelps's sentence.

                                                                  ISSUE 3

¶18.Can the District Court order Phelps committed to a prerelease program or intensive
supervision?

¶19.Here, the pertinent part of Phelps's sentence reads: "Once he completes treatment, the
Defendant shall enter and complete either a Pre-Release Program or an ISP." The
Department of Corrections argues that the District Court only has statutory authority to


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commit Phelps to a prerelease program as the initial place of incarceration pursuant to §
61-8-731(2)(a)(v), MCA (1997). Phelps does not argue to the contrary.

¶20.The parties also agree that the District Court does not have authority to order Phelps to
complete intensive supervision (ISP). The Department of Corrections argues that pursuant
to § 61-8-731(4)(b), MCA (1997), only it has the power to order all or any portion of the
term of probation to be served under intensive supervision.

¶21.Upon our review of the statute, we agree. The District Court cannot require Phelps to
be committed to a prerelease program or intensive supervision; thus, it must strike the
language noted above.

¶22.In summary, we order the District Court to strike the language in Phelps's sentence
regarding its suspension of his incarceration time, its award of double credit for the time
Phelps spends in treatment, and its order to commit Phelps to a prerelease program or
intensive supervision. The District Court also must take away any double credit Phelps
may already have been awarded.

¶23.We remand Phelps's sentence and order the District Court to make the necessary
modifications.

                                                        /S/ J. A. TURNAGE

We concur:

                                                 /S/ WILLIAM E. HUNT, SR.

                                                /S/ TERRY N. TRIEWEILER

                                                          /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART




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