                                                                                           January 21 2014


                                           DA 12-0583

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 17N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL ANDREW JOHNSTON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 96-12127
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General; Helena, Montana

                        Fred R. Van Valkenburg, Missoula County Attorney, Patricia Bower, Deputy
                        County Attorney; Missoula, Montana



                                                    Submitted on Briefs: January 2, 2014
                                                               Decided: January 21, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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     Michael Andrew Johnston (Johnston) pled guilty to two counts of robbery, one count

of theft, and one count of burglary in 1996. The court sentenced Johnston to 40 years in the

Montana State Prison (MSP) with 20 years suspended on the robbery counts, 10 years for the

use of a weapon, and additional concurrent sentences. Johnston was entitled to 87 days of

credit for time he served prior to sentencing. Johnston later completed the Treasure State

Correctional Training Center Program (boot camp), and the court reduced Johnston’s

sentence to 20 years with all time suspended.

¶3     Johnston was released in 1999, but the State filed a petition to revoke his suspended

sentence on March 20, 2012 after he was arrested on two driving under the influence

charges. Johnston moved to dismiss the petition as untimely, which the court denied. The

court revoked Johnston’s suspended sentence and committed him to the Department of

Corrections for five years.

¶4     Johnston’s appeal argues that the State’s petition to revoke was untimely. Johnston

contends that his original sentence began on October 1, 1996, and that his suspended

sentence should have expired on September 18, 2010.

¶5     In criminal cases, we review a denial of a motion to dismiss de novo. State v.

Wagner, 2013 MT 47, ¶ 14, 369 Mont. 139, 296 P.3d 1142. The law in effect at the time of

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an offense generally controls the possible sentence and revocation of the sentence. State v.

Tirey, 2010 MT 283, ¶ 26, 358 Mont. 510, 247 P.3d 701. Where a defendant has served any

portion of his sentence under a commitment based upon a judgment that is subsequently

modified during the term of imprisonment, such time shall be credited. Section 46-18-402,

MCA (1995). Petitions for revocation must be filed with the sentencing court during the

period of suspension or deferral. Section 46-18-203(2), MCA (1995).

¶6     Johnston incorrectly believes that he began serving his sentence on October 1, 1996.

Because he was given credit for 87 days of time served before sentencing, the records

department subtracted those days from October 1, 1996, resulting in a commencement date

of July 6, 1996. In 1999, Johnston’s sentence was reduced by the court to a twenty-year

suspended sentence, pursuant to § 53-30-401, MCA (1995). Johnston served 1160 days

between his sentence commencement and his discharge to probation on September 8, 1999.

He was given good time credit for all of those days except 120 days spent in boot camp,

resulting in 1040 days of good time. In total, Johnston served 2200 days of his sentence

before his discharge to probation.

¶7     Since Johnston’s original total sentence was 7300 days, the staff at the Department of

Corrections subtracted 2200 days and left a remaining 5100 days to be served on probation.

To determine when Johnston’s suspended sentence would be completed, 5100 days is added

to September 8, 1999, the date of his release to probation. That results in a date of August

25, 2013, the same date calculated by the records technician at the Department of

Corrections. The State’s petition to revoke in 2012, therefore, was timely.



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¶8     Johnston would have us apply the remaining 5100 days to his original sentencing date

of October 1, 1996. But Johnston has already received credit for that time served. Since

5100 days already takes his time served into account, applying it to his original sentencing

date would double his credit for time served. Johnston’s suspended sentence was properly

calculated by adding his remaining time to September 8, 1999.

¶9     The District Court’s decision correctly applied well-settled Montana law. We have

determined to decide this case pursuant to Section I, Paragraph 3(d), of our Internal

Operating Rules, which provides for noncitable memorandum opinions. Affirmed.


                                                 /S/ MICHAEL E WHEAT

We Concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON




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