October 30, 2013
THOMAS BRADLEY MORITZ, Petitioner,
WARDEN FRINK, Respondent.
Thomas Bradley Moritz (Moritz) seeks relief by way of a petition for a writ of habeas corpus. Moritz claims that at sentencing on a petition to revoke his suspended sentence, he was sentenced to one and one-half years beyond his lawful discharge date. The State has responded and concedes that Moritz was entitled to more credit for time served than was granted by the District Court.
On August 15, 2009, Moritz was sentenced in the Missoula County District Court, Cause No. DC-09-134, for two felony counts of Failure to Register as a Sexual or Violent Offender. On Count I, the court sentenced him to five years to the Department of Corrections (DOC) with all suspended. On Count II, he was sentenced to five years to the DOC with three years suspended, to run concurrently with Count I. Moritz was given credit for time served of 316 days to be applied to both counts. His official discharge date was thus March 1, 2014. Moritz's began serving his suspended sentence on probation on March 2, 2011.
On July 13, 2011, Moritz was placed in the Missoula County Jail pending probation revocation for violating the conditions of his judgment. On August 30, 2011, the District Court revoked Moritz's sentence on Count I and sentenced him to five years to the DOC with no time suspended. On September 6, 2011, the court sentenced him to three years to the DOC with no time suspended on Count II, which had inadvertently been left out of the August 30 sentencing, to run concurrently with Count I. The court gave Moritz credit for time served of 364 days, including the previously served 316 days plus the 48 days Moritz spent in jail pending revocation. With the five-year sentence on Count I fully reinstated, this made Moritz's discharge date August 30, 2015.
As Moritz's original sentences for Counts I and II were ordered to be run concurrently, those two sentences run simultaneously. When a sentencing judge orders sentences to be served concurrently, those sentences merge for the purpose of time served. State v. Tracy, 2005 MT 128, ¶ 27, 327 Mont. 220, 113 P.3d 297. Credit for time served must be given on all sentences being served concurrently. Tracy, ¶ 28. Moritz had already served the two years of detention time, which must be credited against both Counts. Thus, only the three years suspended remained at the time the county attorney filed the petition to revoke. Therefore,
IT IS HEREBY ORDERED that the Petition for Habeas Corpus is GRANTED. Since Moritz has only challenged his sentence and not the underlying revocation, he is not entitled to be released, but only resentenced. Lott v. State, 2006 MT 279, ¶ 23, 334 Mont. 270, 150 P.3d 337. Consequently, this matter is remanded to the District Court for resentencing on Count I for a period not to exceed three years.
The Clerk is directed to provide a copy of this Order to counsel of
record, to Thomas Bradley Moritz, personally, to the Fourth Judicial District
Court, and to the Department of Corrections.