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State v. Scott

Supreme Court of Montana

October 22, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
JOSEPH SAMUEL SCOTT, Defendant and Appellant.

          ORDER

         Defendant and Appellant Joseph Samuel Scott has moved for a stay of the execution of a sentence of the Eighth Judicial District Court, Cascade County, in Cause No. ADC-17-578 until this Court resolves the present appeal. Scott argues that the District Court abused its discretion in denying him the requested stay. The State of Montana objects to Scott's motion.

         Scott pled guilty to misdemeanor partner or family member assault under § 45-5-206(1)(c), MCA, before Hon. Gregory Pinski, District Court Judge, on November 19, 2018. He was sentenced to a one-year commitment to the Cascade County Detention Center (CCDC), with all but four days suspended, and a $250 fine. The court imposed conditions on Scott's suspended sentence, including twice-weekly drug testing and 520 hours of community service.

         The State petitioned to revoke Scott's suspended sentence on December 5, 2018. It alleged that Scott had failed to comply with the drug testing and community service conditions. Judge Pinski issued a warrant for Scott's arrest and fixed bail at $100, 000. On December 20, 2018, Scott made his initial appearance on the revocation before Hon. Elizabeth Best, District Court Judge, who fixed bail at $1, 000. Later that day, Judge Pinski reinstated the bond amount to $100, 000. At a bail modification hearing on December 26, 2018, Judge Pinski reduced bail to $5, 000. Scott posted bond and was released.

         On January 10, 2019, the State petitioned to revoke, alleging Scott tested positive for marijuana use. Judge Pinski revoked Scott's bond and reset the amount to $25, 000.

         The District Court convened a dispositional hearing on March 4, 2019. The court determined that Scott had violated six sentencing conditions: GPS monitoring, maintain and provide proof of employment, comply with all laws, twice-weekly drug testing, obtain a mental health evaluation within 30 days, and perform 10 hours of community service weekly. The court exonerated Scott's bond, revoked his suspended sentence, and ordered him to serve his one-year sentence at CCDC with no early release.

         Scott moved to stay execution of judgment. On September 11, 2019, the District Court heard Scott's motion. It orally denied the motion for stay, ruling that Scott's failure to comply with his probation conditions posed a danger to the community.

         Scott now argues before this Court that the District Court abused its discretion in denying him a stay of execution of judgment. He maintains that it was unfair to find he had not complied with his sentencing conditions because only two weeks had passed from his sentencing to the filing of the first revocation petition and that was insufficient time to prove that he was not complying. He further argues that some of the alleged violations the court relied upon in revoking his probation in March 2019 were not pled in the State's revocation petition and that he was entitled to advance notice of those allegations under §46-18-209(4)(a), MCA.

         The State responds that the evidence is clear that Scott repeated violated his release conditions and the court did not err in finding additional probation violations because it relied on the evidence presented by the parties at the revocation hearing.

         If an appeal is taken and the defendant is admitted to bail, a sentence of imprisonment must be stayed by the trial court. Section 46-20-204(2), MCA. A defendant should be admitted to bail bond pending appeal if "the defendant is not likely to flee or pose a danger to the safety of any person or the community." Section 46-9-107, MCA. If, in the trial court's discretion under § 46-9-107, MCA, it admits a convicted defendant to bail pending appeal, it must stay the execution of the sentence under these statutes. However, if the trial court does not admit the defendant to bail pending appeal, there is no mandate to stay his sentence under § 46-20-204(2), MCA. Moore v. McCormick, 260 Mont. 305, 307-08, 858 P.2d 1254, 1256 (1993).

         When considering an appellant's motion to stay under M. R. App. P. 22, this Court reviews the trial court's denial of a stay for abuse of discretion. City of Missoula v. Mountain Water Co., No. DA 15-0375, Or. (Mont. Aug. 18, 2015). In this case, we find no abuse of discretion in the District Court's determination that Scott's failure to abide by the conditions of his probation posed a danger to the community. In making its ruling, the court found that Scott had had multiple opportunities to comply with the conditions of his release, and that the conditions which Scott failed to comply with had been put in place specifically to protect the community. While it generally follows from § 46-18-203(4)(a), MCA, that the scope of the revocation hearing is properly limited to the violations alleged in the State's petition, Scott did not object to the evidence of additional violations and has failed to show that the District Court abused its discretion in denying the requested stay based on the cited nexus between community protection and adjudicated violations noticed in the State's petition.

         Therefore, IT IS ORDERED that Defendant and Appellant Joseph Samuel Scott's motion for stay of execution of ...


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