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MacNair v. Kirkegard

Supreme Court of Montana

October 8, 2013

DA WANE JOHNATHAN MACNAIR, Petitioner,
v.
LEROY KIRKEGARD, Respondent.

ORDER

Dawane Johnathan MacNair (MacNair) seeks a writ of habeas corpus based upon a claim that his sentence is illegal because it exceeds the statutory maximum of a five-year commitment to the Department of Corrections (DOC). The petition is sparse and we have ascertained from available electronic records that MacNair committed felony burglary offenses in 2009, had his original sentences revoked in February 2013, and is currently serving a revocation sentence at Montana State Prison.

In support of his claim, MacNair cites Lott v. State, 2006 MT 279, 334 Mont. 270, 150 P.3d 33, and presumably relies upon § 46-18-201(3)(a)(iv)(A), MCA, which requires that all time except the first five years of a DOC commitment be suspended or deferred. However, MacNair was not entitled to be resentenced under the statutes governing imposition of an original sentence, but under § 46-18-203(7)(a), MCA, which prescribes the parameters of revocation sentences:

If the judge finds the offender has violated the terms and conditions of the suspended or deferred sentence, the judge may: ... (iii) revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence.

Section 46-18-203(7)(a), MCA. MacNair's seven-year revocation sentences do not exceed the permissible length of sentence that may be imposed under § 46-18-203(7)(a), MCA. Unlike an initial sentence, "[p]robation revocation is not based upon the conduct that constituted the original crime, but upon later conduct that constitutes a violation of the conditions of a suspended sentence." State v. Roberts, 2010 MT 110, ^j 13, 356 Mont. 290, 233 P.3d 342.

Habeas corpus relief "is not available to attack the legality of an order revoking a suspended or deferred sentence." Section 46-22-101(2), MCA. MacNair did not include with the petition a copy of the order he is challenging, but it is apparent that he is attacking his revocation order and sentence. Habeas corpus offers no remedy under these circumstances.

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record and to Dawane Johnathan MacNair.


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