Kim Maurice Wiley (Wiley) seeks habeas corpus relief from the August 2013 revocation of his suspended sentence. He claims that he was not served with a summons issued on November 19, 2012 and that hearings relating to revocation proceedings were held in Missoula County District Court on December 4 and December 18, 2012 without notice to him and in his absence. He also alleges that on December 20, 2012, a probation and parole office issued an authorization to pick him up and detain him and that he was arrested on December 30, 2012 and detained in violation of § 45-23-1012(2), MCA. He claims that his due process rights were violated, that the District Court exceeded its jurisdiction and that he received ineffective assistance of counsel.
Wiley was sentenced on November 21, 2011 for partner or family member assault, third offense, to a three-year suspended sentence, with 28 conditions. A petition to revoke his probation was filed on April 13, 2012. Wiley denied the allegations and an evidentiary hearing was conducted on June 15, 2012 where the court determined that Wiley had violated two conditions and imposed a three-year suspended sentence with credit for time served; it re-imposed all of the previous conditions of probation.
On November 16, 2012, the State filed another petition to revoke Wiley's probation and a summons was issued for Wiley's appearance. Following a request by Wiley's counsel, the court continued the matter until January 15, 2013.
On December 28, 2012, the State filed a supplemental petition to revoke and a probation warrant for Wiley's arrest was issued. On December 31, 2012, Wiley was arrested on the warrant in Great Falls.
On January 9, 2013, the State filed another supplemental petition to revoke Wiley's probation. At the January 15, 2013 hearing, neither Wiley's counsel nor the State knew that Wiley was in custody in Great Falls and was therefore unable to attend. The State requested and the court granted a bench warrant and set bail at $20, 000. On January 29, 2013, Wiley made an initial appearance on the Missoula bench warrant in Great Falls, bail was continued at $20, 000 and he was remanded to Missoula County for further proceedings. Wiley finally appeared in Missoula County District Court on February 12, 2013. At that time, his counsel moved to quash the bench warrant based upon Wiley's inability to appear at the January 15 hearing because he was incarcerated in Great Falls. Bail was reduced, but Wiley remained in custody.
Wiley's counsel moved to dismiss the petition for failure to comply with the requirements of § 46-23-1012, MCA. On April 30, 2012, without conceding any error, the State moved to dismiss the petitions filed on November 16, December 28, 2012, and January 9, 2013. The State then re-filed the three petitions, and Wiley's counsel again moved to dismiss the re-filed petitions. Relying upon State v. Finley, 2003 MT 239, 317 Mont. 258, 77 P.3d 193, the court denied the motion to dismiss, citing language in Finley: "[W]hen a court revokes a probationer's suspended sentence without authority to do so, the procedural remedy available to the State is to re-file a revocation petition as if the voided prior proceedings had never occurred." Finley, ¶ 14.
The Court ultimately revoked Wiley's probation on August 5, 2013, and imposed a three-year Department of Corrections (DOC) commitment with credit for 102 days of time served.
In response to Wiley's petition, the Attorney General references § 46-22-101(2), MCA, which precludes habeas relief as a means to challenge a revocation sentence. In lieu of habeas corpus, the Attorney General contends that the proper avenue by which to present a complaint regarding the revocation procedure is the timely filing of a petition for postconviction relief. (See §§ 46-21-101-105, MCA.) The Attorney General does not concede that such a petition would have merit in this case.
We agree with the Attorney General that relief under habeas corpus is not available pursuant to § 46-22-101(2), MCA, to challenge revocation of a suspended or deferred sentence. Consequently, this petition must be denied.
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 ...