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State v. Roth

December 16, 2008

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
TODD ALLEN ROTH, DEFENDANT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Benny A. Graff, Judge.

The opinion of the court was delivered by: Maring, Justice

AFFIRMED.

[¶1] Todd Allen Roth appeals from a district court order revoking probation. We affirm, holding the district court did not err when it concluded Roth was subject to probation at the time of his violation of his probationary conditions. We further affirm, holding the district court did not abuse its discretion when it ordered revocation of Roth's probation.

I.

[¶2] Todd Roth pled guilty to five counts: (1) possession of marijuana with intent to deliver; (2) possession of methamphetamine; (3) possession of drug paraphernalia; (4) possession of drug paraphernalia; and (5) driving under suspension. The district court sentenced him to ten years on count one, five years on counts two and three, one year on count four, and one year on count five. The court suspended seven years on count one and two years on counts two and three "for a period of five (5) years on Counts I, II, and III following his release from the North Dakota Department of Corrections, or termination of parole, whichever is later, subject to the following conditions . . . ." The court ordered the sentences to run concurrently with each other and with the sentences imposed in unrelated charges. At the hearing, the court also stated, "And upon release, you'll be on probation for five years" and "[y]ou'll report to your probation officer upon release in the manner that he or she directs." The district court entered a criminal judgment on February 7, 2003, and an amended criminal judgment on February 24, 2003. The conditions of probation were attached as part of the judgment. Roth did not sign the conditions of probation.

[¶3] Roth's incarceration for these crimes ended on February 7, 2006. However, he remained incarcerated on other unrelated convictions. Roth was released from the Department of Corrections on parole on these unrelated convictions on May 9, 2007. In July 2007, Roth was charged with driving with a revoked license, driving under the influence, and fleeing an officer. Roth's parole was revoked, and he was returned to the Department of Corrections. Roth was released from the Department of Corrections in December 2007. On December 13, 2007, Roth signed an acknowledgment and agreement to the conditions of probation.

[¶4] Roth's probation officer petitioned the court to revoke Roth's probation on November 7, 2007. The court held a hearing on the petition for revocation of Roth's probation on February 1, 2008. Roth admitted he violated the conditions of his probation by consuming or possessing alcohol, driving with a revoked license, driving under the influence, and fleeing an officer. The district court entered a second amended criminal judgment, sentencing Roth to serve seven years on count one and five years on counts two and three. The court ordered the sentences be served concurrently and ordered Roth receive credit for the three years he had previously spent in custody.

[¶5] Roth appeals, arguing he was not on probation when the State petitioned for revocation of probation.

II.

[¶6] We review the revocation of probation under a two-step analysis. State v. Jacobsen, 2008 ND 52, ¶ 8, 746 N.W.2d 405. In Jacobsen, we explained: First, we review the district court's factual finding of a probation violation under the clearly erroneous standard. A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, the court is left with a definite and firm conviction that a mistake has been made. Second, we determine whether the district court abused its discretion when it decided that revocation of probation was warranted. A district court abuses its discretion when it acts in an arbitrary, unreasonable, unconscionable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.

Id. (citations omitted).

III.

[¶7] Roth argues he was not on probation when the State petitioned to revoke his probation on November 7, 2007, because he was not yet released from parole. Roth contends his probation began in December 2007, when he signed the acknowledgment and agreement to the conditions of probation. Roth asserts he cannot be on parole and probation at the same time.

[¶8] Section 12.1-32-02(3), N.D.C.C., provides that "[a] court may suspend the execution of all or a part of the sentence imposed. The court shall place the defendant on probation during the term of suspension." In this case, the district court suspended a portion of Roth's sentence and placed him on probation for five years. Roth's three-year sentence began on February 7, 2003. Thus, Roth should have been released on February 7, 2006, and Roth's five-year probationary period would have commenced then. Although Roth remained incarcerated beyond February 7, 2006, on unrelated charges, his probation for the present case began on that date. Roth's probation on these charges could be revoked even though he was imprisoned or paroled on other charges. See State v. Bender, 1998 ND 72, ¶ 15, 576 N.W.2d 210 ("The statute explicitly allows revocation at any time before the period of probation expires, and does not prohibit revocation of subsequent probation if the defendant violates the conditions of probation while still incarcerated."); ...


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