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Gregg v. Kirkegard

Supreme Court of Montana

October 30, 2013

ERIC ERVIN GREGG, Petitioner,
v.
LEROY KIRKEGARD, WARDEN, Respondent.

ORDER

Appearing pro se, Eric Ervin Gregg (Gregg) has filed a petition for a Writ of Habeas Corpus. Gregg had received a juvenile sentence in the Youth Court. He challenged his sentence on appeal. This Court remanded with instructions. In the Matter of E.G., 2009 MT 404N, ¶¶ 9-13. The Youth Court transferred Gregg's case to the District Court on remand and after a rehearing. The District Court retained jurisdiction over Gregg until Gregg reached the age of 25.

Gregg alleges that the District Court breached his plea agreement by sentencing him to probation until Gregg reached the age of 25. Gregg accuses the District Court of illegally "sentence[ing Gregg] to the Department] of Corrections until 25 and not ending jurisdiction at age 21." Gregg alleges that the Youth Court abused its discretion by allowing the District Court to exercise jurisdiction over him until the age of 25.

Gregg further alleges that the District Court lacked any authority to impose standard probation conditions on Gregg following the transfer of his case from Youth Court to the District Court. Gregg alleges that the District Court lacked authority to revoke his probation for failure to abide by the conditions that the District Court allegedly lacked authority to impose.

Gregg also claims that certain conditions of his sentence are illegal. Gregg claims that the prohibition on gambling and entering casinos, the requirement to repay attorney's fees and surcharge fees, and the requirement to advise health professionals of his that the prohibition on gambling and entering casinos, the requirement to repay attorney's fees and surcharge fees, and the requirement to advise health professionals of his addiction history lack a nexus to his underlying offense. Gregg takes exception to findings in his presentence investigation report, and claims that those findings constitute a double jeopardy violation. Gregg lastly claims that the restitution requirement of his sentence violates his due process rights and constitutes an illegal sentence. We have reviewed and considered all of the documents that Gregg has submitted.

A person imprisoned or otherwise restrained of liberty "may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint." Section 46-22-101(1), MCA. The writ of habeas corpus is not available, however, to "attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. The language of §46-22-101(2), MCA, limits this Court's authority to hear and decide issues in the context of a postconviction proceeding that could have been raised on direct appeal. State v. Osborne, 2005 MT 264, ¶ 14, 329 Mont. 95, 124 P.3d 1085.

Gregg filed this petition at the same time that he appealed the District Court's order in the same underlying action. Matter of E.G., No. 13-0314. The fact that Gregg challenges the legality of his sentence and that Gregg's appeal is presently pending leads us to decline to rule on Gregg's petition. Direct appeal represents the proper forum in which to litigate issues relating to the sentence. State v. Wright, 2001 MT 282, ¶ 13, 307 Mont. 349, 42 P.3d 753. We will address the issues raised in Gregg's direct appeal with the benefit of the full District Court record.

THEREFORE,

IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DISMISSED, without prejudice.

The Clerk is directed to provide a copy hereof to Eric Ervin Gregg and to all counsels of record.


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