STATE OF MONTANA
Plaintiff and Respondent,
v.
TANA M. SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC 2002-0958
The Honorable Susan P. Watters, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Matthew C. Claus, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County
Attorney, Billings, Montana
Submitted on Briefs: January 21, 2004
Decided: January 28, 2004
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Tana M. Smith (Smith) appeals from the District Court’s June 10, 2003 Order
Deferring Imposition of Sentence insofar as the District Court restricted Smith from
possessing or consuming intoxicants and alcohol or entering any place where intoxicants are
the chief item for sale. We reverse and strike this restriction.
BACKGROUND
¶3 On June 10, 2003, the Thirteenth Judicial District Court, Yellowstone County, entered
its Order Deferring Imposition of Sentence on Smith’s entry of plea to felony forgery and
misdemeanor forgery. The District Court’s Order imposed certain probation conditions on
Smith including the following (hereinafter referred to as condition #2):
The Defendant [Smith] shall not possess or consume intoxicants/alcohol, nor
will she enter any place intoxicants are the chief item of sale. She will submit
to Breathalyzer testing or bodily fluid testing for drugs or alcohol as requested
by her Probation & Parole Officer: this Court granting defendant a special
exception for employment purposes.
¶4 At the sentencing hearing, Smith argued against this condition.
¶5 At the sentencing hearing, the District Court noted while that it appeared from the presentence report that Smith had used substances in the past, it did not appear that she was
under the influence of any substance when she committed the offenses with which she was
charged.
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DISCUSSION
¶6 We review a criminal sentence for legality only (i.e., whether the sentence is within
the statutory parameters). State v. Montoya,
.
¶7 When deferring imposition of sentence, a court “may impose upon the offender any
reasonable restrictions or conditions during the period of the deferred imposition . . . of
sentence.” Section 46-18-201(4), MCA. We have held however that such conditions must
have “some correlation or connection to the underlying offense for which the defendant is
being sentenced.” State v. Ommundson,
.
¶8 Here, Smith argues that the condition of her probation prohibiting her use of alcohol
and entering places where it is the chief item for sale is not reasonably related to the offenses
she committed. The State agrees, conceding, as the record reflects, that there was no
evidence that the offenses at issue were alcohol related. Moreover, according to the presentence investigation report, Smith rarely drinks alcohol. Thus, no nexus exists between
the subject condition and the charged forgery offenses. Furthermore, the condition is not
reasonably related to Smith’s rehabilitation or for the protection of society.
¶9 Accordingly, the District Court’s imposition of condition #2 in its June 10, 2003
Order Deferring Imposition of Sentence is reversed and the condition is stricken.
/S/ JAMES C. NELSON
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We Concur:
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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