                                          No. 04-505

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2005 MT 277



STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

BILLY JIVELEKAS,

              Defendant and Respondent.




APPEAL FROM:         The District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DC 2001-0820,
                     Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Honorable Mike McGrath, Attorney General; Brenda E. Thompson,
                     Special Assistant Attorney General, Department of Corrections,
                     Helena, Montana

                     Dennis Paxinos, County Attorney; Mark Murphy, Chief Deputy
                     County Attorney, Billings, Montana

              For Respondent:

                     Nancy Schwartz, Attorney at Law, Billings, Montana



                                                       Submitted on Briefs: July 26, 2005

                                                                  Decided: November 3, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     The State of Montana appeals the District Court’s order filed May 3, 2004, granting

Billy Jivelekas approval to operate a vehicle for employment purposes. We affirm.

¶2     The State argues on appeal that § 61-8-731, MCA (2001), legally prohibits the District

Court from granting Jivelekas approval to operate a motor vehicle. Jivelekas argues that the

appeal should be dismissed because the State did not file its appeal within fourteen days of

the District Court’s original order and judgment filed April 25, 2002, as mandated by Rule

5(b), M.R.App.P. Because we agree with Jivelekas that the State’s appeal is untimely, we

dismiss.

¶3     We state the issues as follows:

¶4     1. Whether the District Court had jurisdiction to hear Jivelekas’s motion.

¶5     2. Whether the State is time-barred from appealing the District Court’s order and

judgment of April 24, 2002.

                                     BACKGROUND

¶6     On April 25, 2002, the Montana Thirteenth Judicial District Court of Yellowstone

County filed judgment convicting Jivelekas of Count I, Driving Under the Influence of

Alcohol and/or Drugs (Felony), and Count II, Driving while the Privilege to do so is

Suspended or Revoked (Misdemeanor). The District Court sentenced Jivelekas to the

Department of Corrections (DOC) for thirteen months, followed by five years of probation.

Jivelekas completed his term with the DOC and, on October 21, 2002, successfully graduated

from the Warm Springs Addiction Treatment and Change (WATCh) program. The next day,


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Jivelekas entered the department’s probation program in Billings under the supervision of

Probation Officer Mary Aggers.

¶7    The issue disputed by the parties stems from condition #13 of the District Court’s

original judgment and order filed April 25, 2002, which states:

      The defendant shall not at anytime, anywhere, any place nor under any
      circumstances drive/operate a motor vehicle unless approved by the sentencing
      Court and/or defendant’s Supervising Officer at such period when determined
      defendant possesses a valid driver’s license and insurance. At such period
      when determined defendant is legally able to drive/operate a motor vehicle,
      defendant shall maintain an Ignition Interlock system on his motor vehicle for
      a period of no less than (1) one year while on supervised probation. [Emphasis
      added.]

¶8    Nearly two years later, on April 8, 2004, Jivelekas filed with the District Court a

motion asking for approval to operate a motor vehicle, pursuant to condition #13 of the

judgment and order. Jivelekas informed the court that he had served his time with DOC, as

well as successfully completed the WATCh program, along with sixteen weeks of Aftercare,

eight weeks of Relapse Prevention, one year of monthly monitoring, and ninety Alcoholics

Anonymous meetings in ninety days. He also had no incidences of drinking while on

probation.

¶9    In his motion, Jivelekas explained that he worked full-time at Rocky Mountain

Leisure Spas making repair calls at customers’ homes. Because this employment requires

driving to job sites, Jivelekas’s inability to operate the company vehicle required his

employer, Scott Oleson, or another employee, to serve as his driver.          Due to this

inconvenience, Jivelekas’s hours dropped to almost half, and according to Oleson, created



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a hardship on the company. For these reasons, Jivelekas requested that the District Court

authorize him to drive his personal vehicle to and from work as long as he maintained a valid

driver’s license and equipped his vehicle with an ignition interlock device. Jivelekas further

requested permission to operate the company vehicle, not equipped with an interlock device,

during work hours only.

¶10    The Yellowstone County Attorney did not object to Jivelekas’s motion; however,

Jivelekas’s probation supervisor, Officer Aggers, opposed the motion. On behalf of Officer

Aggers, the DOC filed an objection in District Court based in relevant part on § 61-8-731,

MCA (2001):

              (3) The court shall, as a condition of probation, order:
              ...
              (e) that the person may not operate a motor vehicle unless authorized
       by the person’s probation officer. [Emphasis added.]

Pursuant to the above statute, the DOC argued that the District Court went beyond its

authority by including condition #13 in its judgment and order, permitting Jivelekas to seek

approval from the District Court to operate a motor vehicle. Despite the DOC’s objection,

the District Court granted Jivelekas permission to drive in an order filed May 3, 2004.

                                       DISCUSSION

1. Whether the District Court had jurisdiction to hear Jivelekas’s motion.

¶11    Because jurisdictional challenges are not subject to time constraints, the DOC

attempts to circumvent a time-bar on this appeal by arguing that the DOC “does not allege

the District Court imposed an illegal sentence,” but rather, “the District Court did not have

jurisdiction to hear Mr. Jivelekas’s motion . . . .” (Emphasis added.) The DOC cites Peña

                                              4
v. State, 2004 MT 293, ¶ 22, 323 Mont. 347, ¶ 22, 100 P.3d 154, ¶ 22, in which this Court

held that “‘jurisdictional’ claims are those which challenge a court’s ‘power’ or ‘capacity’

to entertain the subject matter of the proceeding and render a determination therein.” The

DOC correctly cites Peña as precedent; however, further reading of the case fails to support

the DOC’s jurisdictional argument.

¶12     In Peña, the District Court sentenced seventeen-year-old Marcellino Peña to the

Montana State Prison as an adult offender for a total of forty-five years on charges of

deliberate homicide and aggravated burglary. Peña filed a petition for postconviction relief

in the District Court, arguing that the court imposed an illegal sentence because, pursuant to

§ 41-5-206(6), MCA (1997), of the Youth Court Act, youths must be sentenced to the DOC,

and, pursuant to § 46-18-201(1)(e), MCA (1997), the maximum sentence to which an

individual could be sentenced to the DOC is five years. Peña, ¶ 12. Peña further argued that

pursuant to subpart (e) of the sentencing statute, § 46-18-201, MCA, the District Court

lacked subject matter jurisdiction to sentence him to more than five years with the DOC.

Peña, ¶ 16.

¶13    In addressing Peña’s argument, we looked to Article VII, Section 4, of the Montana

Constitution, which provides the following:

       Section 4. District court jurisdiction. (1) The district court has original
       jurisdiction in all criminal cases amounting to a felony and . . . such additional
       jurisdiction as may be delegated by the laws of the United States or the state
       of Montana.




                                               5
Peña, ¶ 21 (emphasis added). We then explained that jurisdiction is the “‘power’ or

‘capacity’ of a district court to hear a particular action as well as render a judgment therein.”

Peña, ¶ 21. In conclusion, we held:

       “[J]urisdictional” claims are those which challenge a court’s “power” or
       “capacity” to entertain the subject matter of the proceeding and render a
       determination therein. Thus, although Peña argues that the sentencing court
       lacked subject matter jurisdiction to sentence him to the DOC for more than
       five years by virtue of §§ 41-5-206(6) and 46-18-201(1), MCA, Peña’s
       argument is not properly characterized as a jurisdictional inquiry. Whether a
       district court commits a statutory error in imposing a sentence must not be
       confused with the question of whether the court had the “power” or
       “capacity” to impose the sentence in the first instance. An error in sentencing
       does not divest a district court of subject matter jurisdiction over the case
       before it.

Peña, ¶ 22 (emphasis added). See also Camarillo v. State, 2005 MT 29, ¶ 17, 326 Mont. 35,

¶ 17, 107 P.3d 1265, ¶ 17; and Sanders v. State, 2004 MT 374, ¶ 15, 325 Mont. 59, ¶ 15, 103

P.3d 1053, ¶ 15.

¶14    Despite the DOC’s assertion that it “does not allege the district court imposed an

illegal sentence,” only that the court “did not have jurisdiction to hear Mr. Jivelekas’s

motion,” we find the former to be a more accurate characterization of the DOC’s objection.

The DOC argues that “the lower court did not have statutory authority because Montana

explicitly gives a probation officer, not the district court, the discretion to determine when

a felony DUI offender should operate a motor vehicle.” As we have previously noted: “A

sentence not based on statutory authority is an illegal sentence.” State v. Ruiz, 2005 MT 117,

¶ 12, 327 Mont. 109, ¶ 12, 112 P.3d 1001, ¶ 12 (citing Peña, ¶ 24). “An error in sentencing

does not divest a district court of subject matter jurisdiction over the case before it.” Peña,


                                               6
¶ 22. Thus, even assuming, arguendo, that the District Court exceeded its statutory authority,

it still had jurisdiction over Jivelekas’s motion.

2. Whether the State is time-barred from appealing the District Court’s order and
judgment filed April 25, 2002.

¶15    Without question, the terms of condition #13 in the judgment and order grant both the

probation officer and/or the sentencing court the authority to reinstate Jivelekas’s driving

privileges, creating a conflict with § 61-8-731, MCA. Jivelekas acknowledges as much,

noting that the sentencing order’s language conflicts “with the precise statutory language”

of § 61-8-731, MCA.

¶16    In accordance with subsection (2) of § 46-20-103, MCA, which provides “[t]he State

may appeal from any court order or judgment the substantive effect of which results in . . .

(h) imposing a sentence that is contrary to law,” the DOC filed an objection to Jivelekas’s

motion requesting approval to operate a motor vehicle. The DOC argued that based on § 61-

8-731, MCA, the District Court had no authority to entertain a motion to grant Jivelekas

permission to operate a motor vehicle.

¶17    On appeal, the DOC asks this Court to conclude that the District Court exceeded its

scope of authority when it granted Jivelekas’s motion for approval to operate a motor

vehicle. We are precluded, however, from addressing the merits of this argument because

the DOC failed to file a timely appeal under Rule 5(b), M.R.App.P. The Rule states that

“[a]n appeal from an order or judgment made appealable by section 46-20-103, Montana

Code Annotated must be taken within 14 days.” The District Court filed its judgment and



                                               7
order sentencing Jivelekas on April 25, 2002. Consequently, the DOC should have filed its

appeal within fourteen days of April 25, 2002. Instead, the DOC filed an appeal on May 17,

2004. While § 46-18-116(3), MCA, provides that “[t]he court may correct a factually

erroneous sentence or judgment at any time,” the statute clearly states that “[i]llegal

sentences must be addressed in the manner provided by law for appeal . . . .” (Emphasis

added.) Since the DOC’s appeal is not within the fourteen-day period provided by law, Rule

5(b), M.R.App.P., the appeal is time-barred.

¶18   This appeal is dismissed.



                                         /S/ W. WILLIAM LEAPHART


We Concur:


/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS




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