STATE v MCGUIRE
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No. 92-534 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 STATE OF MONTANA, Plaintiff and Respondent, -vsJOHN LEE McGUIRE, Defendant and Appellant. APPEAL FROM: COUNSEL OF District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding. RECORD: For Appellant: Jeannette Ellen Berry; Berry Montana & Bordy, Bozeman, For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, AssltAttorneyGeneral, Helena, Montana Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell, Montana Submitted on Briefs: Decided: Filed: August 12, 1993 October 4, 1993 Justice Karla M. Gray delivered the Opinion of the Court. John McGuire appeals the sentence imposed by the Eleventh Judicial District Court. Flathead County, following conviction for the offense of burglary. We modify the sentence and remand for entry of sentence consistent with this opinion. The issue on appeal is whether the District Court erred by imposing a sentence consecutive to one not yet imposed by another district court. On March 27, 1990, John McGuire (McGuire) pled guilty to a burglary charge in Flathead County. The District Court granted his request to postpone sentencing until he completed a drug and alcohol treatment program at the State Hospital in Galen. McGuire escaped from that facility in May of 1990. McGuire was subsequently arrested in November of 1990 for offenses committed in Gallatin County. He pled guilty to one count of felony theft and one count of burglary in August of 1992. Prior to sentencing in Gallatin County, however, McGuire was returned to Flathead County for sentencing on the earlier burglary conviction. On September 14, 1992, the Eleventh Judicial District Court, Flathead County, sentenced McGuire to a twenty-year sentence at the Montana State Prison, with eight years suspended. The court ordered that the sentence be served consecutively to the sentence McGuire subsequently would receive in Gallatin County. On November 4, 1992, McGuire was sentenced for the felony theft and burglary convictions in Gallatin County. McGuire appeals from the sentence imposed by the District Court in Flathead County. Did the District Court err by imposing a sentence consecutive to one not yet imposed by another district court? McGuire argues that under g 46-18-401(1)(a), MCA, only a district court which imposes a sentence subseauent to one already imposed has the authority to determine whether the sentences will be concurrent or consecutive to each other. On that basis, he contends that the Eleventh Judicial District Court exceeded its sentencing authority by ordering its sentence to run consecutive to one not yet imposed by the district court in Gallatin County. We agree. Section 46-18-401(1)(a), MCA, authorizes a court imposing sentence on a person already serving a term of commitment to determine whether the new sentence will be concurrent with, or c"',secuti.v.e to, A"- ult! ---* s l L l L r l r l r .-.---. 3 . u ' - prrv ~ " u . "----A b ~ y riqJuaru. m%.- -*..*,.*,. ,,.-I.,.,. lur a L a c u c s iua&c= consecutive sentences under these circumstances automatic lt[u]nless the judge otherwise orders." Section 46-18-401(1)(a), MCA. It is clear that this statute is not applicable here and provides no support for the District Court's order for consecutive sentences. McGuire was not serving another sentence at the time the District Court sentenced him on the Flathead County burglary charge. Thus, we conclude that the Eleventh Judicial District Court, Flathead County, was without authority to order McGuire to serve his term of incarceration consecutive to another sentence not yet imposed. Furthermore, sound sentencing principles preclude a court from 3 imposing a sentence consecutive to one not yet imposed. By definition, a consecutive sentence does not begin until the sentence to which it is consecutive has been satisfied. On that basis, a sentence ordered to run consecutively to one which has not been imposed creates problems of implementation. Furthermore, when a court orders a sentence to run consecutively to one not yet imposed, the court does so without knowing the length of the future sentence; therefore, it lacks an adequate basis for the exercise of its discretion. Finally, the imposition of consecutive sentences under these circumstances interferes with the sentencing discretion of the court which will impose the future sentence. King (Ariz. App. 1990), 802 P.2d &g State v. 1041. On appeal from a criminal conviction, we may reverse, affirm or modify the judgment or order from which the appeal is taken. Section District MCA. 46-20-703, Court in Because we have determined that the Flathead County exceeded its sentencing authority, we modify the judgment and sentence by striking the provision ordering McGuirers sentence to be consecutive to one not yet imposed in Gallatin County, affirm the remainder of the sentence, and remand this cause to the District Court for entry of sentence consistent with this opinion. ./ October 4, 1993 I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Jeannette Ellen Berry BERRY & BORDY 2631 West Main Street Bozeman, MT 59715 HON. JOSEPH P. MAZUREK, Attorney Generl Micheal S. Wellenstein, Assistant Justice Bldg. Helena, MT 59601 Thomas J. Esch, County Anorney Ed Conigan, Deputy Flathead County, P.O. Box 1516 Kalispeil, MT 59903-1516 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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