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Nelson v. Fletcher

Supreme Court of Montana

August 22, 2017

DERRICK NELSON, Petitioner,
v.
MICHAEL FLETCHER, Warden, Respondent.

          ORDER

         Derrick Nelson has filed a petition for a writ of habeas corpus, seeking additional credit for time he served on North Dakota sentences toward his Montana sentences received in 2016 upon revocation, imposed by the Seventh Judicial District Court, Richland County. The Attorney General has filed a response, conceding that Nelson is entitled to additional credit, and requesting the matter be remanded for a recalculation. We remand the matter to the District Court, and provide a summary of the matter that will hopefully be helpful in further proceedings, Nelson was sentenced in November 2005 on two felony drug possession charges in North Dakota's South Central Judicial District Court, Burleigh County.[1] In August 2009, Nelson was charged with felony theft (common scheme) and misdemeanor theft in Richland County District Court, Montana, and an arrest warrant was issued.

         In April 2010, the North Dakota District Court held a revocation hearing and sentenced Nelson to a 78-month term with the North Dakota Department of Corrections, with credit for time served stated as eighteen months and thirty-two days. While incarcerated in North Dakota, Nelson sought final disposition of his Montana criminal charges. Nelson was thereafter served with the 2009 Montana arrest warrant and he appeared in the Richland County District Court on July 20, 2010, pleading guilty to the two charges under a plea agreement. On August 10, 2010, the District Court sentenced Nelson to the Montana Department of Corrections (DOC) for a suspended eight-year term on the felony, with a six-month term for the misdemeanor. The court ordered that the "sentences shall run concurrently with any sentences [Nelson] has been previously sentenced to in other states." The court also credited him with 65 days for his time in the Richland County Jail.[2]

         Nelson returned to North Dakota to complete his sentence there. Nelson was incarcerated at the North Dakota State Penitentiary, apparently starting in April 2010, and was paroled in January 2013, although, according to Montana's DOC records, he was not released from custody in North Dakota until July 10, 2013. Montana Adult Probation and Parole records confirm that Nelson returned to Montana in March 2014.

         The State of Montana filed a petition to revoke Nelson's eight-year suspended sentence in June 2014. The Richland County District Court held a revocation hearing on August 6, 2014, and found that Nelson violated his conditions. The court revoked his suspended sentence, yet continued the dispositional hearing. For reasons not apparent, Nelson was released on September 23, 2014.

         The State again filed a petition to revoke about a year later. The court held a revocation hearing on October 28, 2015, and Nelson admitted violating his conditions. The District Court committed Nelson to Montana's DOC for an eight-year term, with three years suspended on January 6, 2016. The court ordered that Nelson was to receive a total credit of 237 days, based upon 163 days of incarceration and 74 days of street time.

         In his petition, Nelson contends that he is due extra credit. He explains that he considers the entire time in North Dakota from April 9, 2010 to January 9, 2013, as credit for time served, a total of 1, 008 days. From this total, he derives 124 days of pre-sentence incarceration and 844 days in North Dakota on his concurrent sentence. He also points out that he sought relief for this credit with the District Court last year, and, in its denial, the District Court advised him to seek postconviction relief.

         The State responds that this matter should be remanded to the Richland County District Court for recalculation of Nelson's credit for time served. The State, while noting that Nelson's court record is not clear and that it does not necessarily agree with Nelson's precise calculations, agrees that Nelson is entitled to additional credit. The State posits that Nelson is entitled to credit for actual time served while incarcerated for his North Dakota sentence because the Richland County District Court ran his sentences concurrently with his North Dakota sentence, and the two terms merged. State v. Tracy, 2005 MT 128, ¶ 27, 327 Mont. 220, 113 P.3d 297; §§ 46-18-203(7)(b) and 46-18-40l(1)(a), MCA.

         We agree with the State that remand is appropriate here to correct the portion of Nelson's sentence addressing credit for time served. State v. Heafner, 2010 MT 87, ¶ 11, 365 Mont. 128, 231 P.3d 1087. The parties upon remand may present more information about the dates Nelson was incarcerated in the Richland County Jail, whether on probation holds or revocation bench warrants, and the court may determine the designation of the days for street time credit. Section 46-18-203(7)(b), MCA. We remand this matter to the Richland County District Court to determine the accurate release dates and to calculate the correct credit. Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is GRANTED in part, and this matter is REMANDED to the Seventh Judicial District Court, Richland County, under Cause No. DC-09-38, to determine the correct dates of Nelson's incarcerations and releases, and calculate the proper credit for time served.

         The Clerk is directed to provide a copy of this record to the Hon. Katherine M. Irigoin, Seventh Judicial District Court, Richland County; to Janice Klempel, Clerk of District Court, Richland County; to counsel of record; and to Derrick Nelson personally.

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Notes:

[1] The State points out that Nelson's original sentence from North Dakota was not in the record before us.

[2] It is not clear from the record before us how the number of sixty-Five days was ...


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