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State v. Brister1/29/2002
APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Marge Johnson, Judge presiding.
Submitted on Briefs: January 17, 2002
In July 1984, Dennis Brister (Brister) was sentenced to the Montana State Prison (MSP) for twenty years, ten years of which were suspended, for the felony crime of sexual assault, after being found guilty of sexually assaulting two of his young nieces. After serving his time at MSP, he began his ten-year suspended sentence in December 1992. In May 1998, he committed felony theft and was sentenced to five years with the Montana Department of Corrections. As a result of this felony, Brister's ten-year suspended sentence for sexual assault was revoked and replaced with another ten-year suspended sentence conditioned upon compliance with twenty-six specifically defined sentencing conditions. Brister contends that many of these conditions were not, nor could have been, included in his original sexual assault sentence, and must be stricken. However, he does not provide this Court with his original conditions of probation. Brister appeals the imposition of the new conditions, claiming they are in violation of his constitutional protections from double jeopardy and ex post facto laws. We reverse and remand.
ISSUES
The following is a restatement of the issues.
1. Did Brister waive his objections by failing to contemporaneously object when the sentence was pronounced and did he file a timely appeal from the District Court's sentence?
2. Did the District Court's sentence violate Brister's constitutional protections against double jeopardy?
3. Did the District Court err in imposing new conditions upon a continuation of Brister's suspended sentence?
FACTUAL AND PROCEDURAL BACKGROUND
On July 12, 1984, Brister was sentenced to the MSP for twenty years, ten years suspended, for the felony crime of sexual assault, after being found guilty of sexually assaulting two of his young nieces. He was released and began his ten-year suspended sentence in December 1992. Under his original sentence, he was subject to the rules and regulations of the Adult Probation and Parole Field Services Office during his entire suspension period. Brister signed the set of rules applicable to his suspended sentence on December 22, 1992, but did not provide a copy of these rules to the District Court or this Court for the record in this case.
On May 22, 1998, Brister was charged with felony theft by the Missoula County Sheriffs Department and on June 4, 1998, was placed in the Missoula County Jail on a $10,000.00 bond. According to Brister's voluntary interview with a detective for the Sheriff's Department, Brister, while under the influence of alcohol and drugs, stole numerous firearms and ammunition, among other items, from a neighbor for the purpose of selling them. Upon sobering up, however, he reconsidered this moneymaking venture and disposed of the guns and ammunition at various locations.
Brister entered into a plea agreement with the Montana Department of Corrections (DOC) under which he would serve five years for felony theft.
This felony theft was committed before Brister's ten-year suspended sentence for sexual assault had run and, during its commission, Brister violated various conditions of his probation. On June 12, 1998, Brister's probation and parole officer prepared a Report of Violation in which he listed three probation/parole violations: 1) failing to comply with all applicable laws; 2) drinking alcohol, and 3) testing positive for marijuana use.
On June 18, 1998, a C
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