STATE v KIME
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No. 01-487 IN THE SUPREME COURT OF THE STATE OF MONTANA 2002 MT 38 STATE OF MONTANA, Plaintiff and Respondent, v. DAVID WAYNE KIME, Defendant and Appellant. APPEAL. FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Mike Salvagni, Judge presiding. COUNSEL OF RECORD: For Appellant: Jennifer Went Bordy, The Angel Law Firm, Bozeman, Montana For Respondent: Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney; Gary Balaz, Deputy County Attorney, Bozeman, Montana Submitted on Briefs: December 13,200l Decided: March 5, 2002 Filed: ChiefJusticc Karla M. Gray delivered the Opinion of the Court ill David Wayne Kime (Kime) appealsfrom the judgment entered by the Eighteenth Judicial District Court, Gallatin County, on his convictions and sentencesfor felony theft, driving under the influence of alcohol (DUI) and driving while his license was suspended. We affirm. 12 The issue on appeal is whether the District Court abusedits discretion in sentencing Kime by failing to give him sufficient credit for preconviction time served in jail. BACKGROUND lI3 On November 26, 2000, Kime was arrested and placed in the Gallatin County Detention Center (Jail) on charges of felony theft, DUI and driving while his license was suspended. On the following day, he appearedbefore the Gallatin County Justice Court, which set bail in the amount of $25,000. Kime did not post bail and remained incarcerated in the Jail. ll4 At the time of his arrest, Kime was participating in a supervisedreleaseprogram as part of a prior sentencefor a felony assaultconviction. The prior sentencecommitted Kime to the custody of the Montana Department of Corrections (DOC) for a period of ten years, with five years suspended. On December 5, 2000, the DOC removed Kime from the supervisedreleaseprogram and he was transferred from the Jail to the Montana StatePrison (MSP) to serve the remainder of his felony assaultsentence. 2 115 On Dcccmber 12, 2000, the State of Montana (State) charged Kimc by information in the District Court with felony theft, secondoffense DUI and driving while his licensewas suspended. At Kime s initial appearance,the District Court continued the $25,000 bail amount previously set by the JusticeCourt. Kime subsequentlypleadedguilty to the charges pursuant to a plea agreement and, at sentencing,requested the court to credit his sentence with the time he was incarcerated between the dates of his arrest and the April 2, 2001, sentencing. The District Court, however, credited Kime s sentenceonly with 20 days time served between his arrest and December 5,2000, when he was transported from the Jail to the MSP. The court enteredjudgment on the convictions and sentenceand Kime appeals. STANDARD OF REVIEW ll6 We review a district court s sentencefor legality. State v. Horton, 2001 MT 100,y 17,305 Mont. 242,y 17,25 P.3d 886,117 (citations omitted). Our standardofreview ofthe legality of a sentenceis whether the district court abusedits discretion. Horton, 1 17. DISCUSSION Did the District Court abuseits discretion in sentencing Kime by failing to give him 17 sufficient credit for preconviction time served in jail? 78 In refusing to credit Kime s sentencewith the time he was incarcerated subsequent to his transfer to the MSP on December 5,2000, the District Court concluded that, after that point, Kime was incarceratedbecauseof his prior felony offense rather than the offenses for which it was imposing sentence. Kime contendsthat the District Court abusedits discretion. 3 1P Section 46 I S-403( I), MCA, provides that [a]ny person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction _ Kime arguesthat, becauseall three of the offenses with which he was charged in this case are bailable offenses and the District Court imposed a sentenceof imprisonment, § 46-l 8-403( l), MCA, requires that his sentence be credited with the entire time he was incarcerated between the date he was arrestedand the datehe was sentenced,notwithstanding the fact that he was also incarcerated at the MSP as a result of his prior felony conviction during a portion of that time. He relies on Horton in support of his argument. 110 In Horton, the defendant was arrestedand chargedwith four offenses. Horton, 117- 10. Shortly after his arrest, the State petitioned to revoke his suspendedsentenceimposed on an earlier offense. Horton, 7 9. Horton subsequently pleaded guilty to three of the offenses for which he had beenarrestedandthe district court scheduleda sentencinghearing. Horton, 1 12. At sentencing, Horton requestedthe district court to credit his sentences with the time he served in jail from the time of his arrest through his sentencing. The court orally stated that Horton would be given credit for time served, but the later written sentence provided that he would not be given such credit becausehe also had been held in jail as a result of the revocation petition. Horton, 1 15. 111 On appeal, Horton argued that the district court had erred in issuing a written sentencingorder which contradicted its oral sentence. The State concededin responsethat, pursuant to 5 46-l 8-403(l), MCA, Horton was entitled to credit for time served betweenhis 4 arrest and sentencing. Horton, 11 32. The State further conceded that, pursuant to State v. Lane, 1998 MT 76,258 Mont. 286, 957 P.2d 9, a court s oral pronouncement of sentence controls over a subsequent written sentence when there is a conflict between the two. Horton, 133. As a result, we held that basedupon 5 46-l S-403(1), MCA, and our holding in Lane, the sentence the District Court orally pronounced from the bench in Horton s presenceis the legally effective sentence, andstruck from Horton s sentencethe provision that he would not be given credit for time served. Horton, 7 34. 112 Contrary to Kime s argument that Horton requires that a defendant receive credit against a sentence of imprisonment for each day served prior to sentencing on a bailable offense, regardlessof the fact that he or shealso may have beenincarceratedduring the same period for some other reason, we concludethat our holding in Horton was basedon the rule that an oral pronouncement of sentencecontrols over a subsequentcontradictory written sentence. Becausethe State concededwithout argument that Horton was statutorily entitled to credit for time served in jail, we were not presentedwith--and, thus, did not address--the issueofwhether § 46-l 8-403( l), MCA, requiresthat a defendant s sentencebe credited with time served on an offense notwithstanding the fact that he or she was concurrently incarcerated as a result of proceedings relating to a different offense. We conclude, therefore, that Horton is of no assistanceto Kime here. Moreover, Kime does not cite, nor have we found, any case in which we have addressedthis issue. 113 Notwithstanding the absence ofcase authority, Kime contendsthat, as long asthe two prerequisites of 5 46-18-403(l), MCA, are met--that is, the defendant hasbeen incarcerated 5 on a bailable offense for which he or she rcccivcs a sentenceof imprisonment--the plain language of the statute requires that the de fendant ssentencebe credited for time served. The State responds that the statute provides for credit only for time a defendant is incarcerated on a bailable offense and that, once Kime was transported to the MSP on December 5, 2000, he was incarcerated on--and serving his sentence for--his nonbailable prior felony offense. Thus, according to the State, after December 5, 2000, Kime was no longer incarcerated on a bailable offense and is not entitled to credit for time served on the chargesstemming from his arrest in November of 2000. In other words, the Statearguesthat a defendant should only be credited for time served prior to sentencing where the incarceration is directly related to the offense for which the defendant subsequently is sentencedand that, after December 52000, Kime s incarceration was related to his sentence on the prior felony, not the offenses at issue in the present case. We agree. 714 Kime was transported to the MSP on December 5, 2000, to complete serving his sentenceon the prior felony conviction. After that point, even if Kime had beenable to post bail to secure his releaseon the charges in this case,he would not have been releasedfrom the MSP. Thus, each day he served in the MSP between that date and the date of his sentencing on the convictions at issue in this casewas directly attributable to, and credited against, that prior conviction. 715 Moreover, the general purpose of § 46-l X-403(I), MCA, is to eliminate the disparity of treatment between indigent and nonindigent defendants. In other words, credit for time servedis given so as not to penalizeindigent defendantswho are unableto post bail and must 6 remain in custody until they are sentencedwhen nonindigent defendants may secure their releaseand remain free during that time period. That purpose is not served by crediting a defendant s sentencefor time servedwhere the defendantwould not havebeenreleasedfrom custody had he or she been able to post bail in any event as a result of being held on a sentencerelated to an earlier offense. 116 We conclude that, pursuant to § 46-18-403(l), MCA, a defendant s sentencemay be credited with the time he or she was incarcerated only if that incarceration was directly related to the offense for which the sentence is imposed. Here, the time Kime was incarcerated at the MSP between December 5, 2000, and the date of his sentencing was related to his prior felony conviction and not the charges of which he was convicted in the present case. As a result, we further conclude that the District Court correctly refused to credit Kime s sentencewith the time servedbetween those dates. We hold, therefore, that the District Court did not abuse its discretion in sentencing Kime by failing to give him sufficient credit for preconviction time served in jail. 717 Affirmed.
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