State v. Dreidlein

No. 04-678
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 259N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GENE DREIDLEIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Meagher, Cause No. DC 03-09
Honorable Randal I. Spaulding, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Carl White, Attorney at Law, Havre, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Ilka Becker,
Assistant Attorney General, Helena, Montana
Linda Hickman, Meagher County Attorney, White Sulphur
Springs, Montana
Submitted on Briefs: September 13, 2005
Decided: October 19, 2005
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray 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 its case title, Supreme Court
cause number and disposition shall be included in this Court's quarterly list of noncitable
cases published in the Pacific Reporter and Montana Reports.
¶2 Gene Dreidlein appeals from the judgment and sentence entered by the Fourteenth
Judicial District Court, Meagher County. We affirm.
¶3 The State of Montana charged Dreidlein with numerous fish and game offenses and
the parties subsequently executed a plea agreement. With respect to one felony charge, the
plea agreement provided that the parties would enter into a six-year deferred prosecution
agreement, under which the State would argue for a condition that Dreidlein serve a one-year
jail term, with all but 90 days suspended, and Dreidlein would have the right to argue for a
lesser jail term and a “staggered schedule” to serve it. The parties also executed a deferred
prosecution agreement, which incorporated the plea agreement by reference. At sentencing,
the District Court asked Dreidlein “[d]o you think the 90 days that’s suggested here is
appropriate?” and Dreidlein responded “[y]es, Your Honor.” The court approved and
adopted the deferred prosecution agreement. With respect to the felony charge, the court
sentenced Dreidlein to a six-year deferred sentence with the condition that he would serve
one year in jail, with all but 90 days suspended; the 90 days could be served on weekends.
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¶4 On appeal, Dreidlein asserts the jail sentence violates § 46-16-130, MCA, which sets
forth procedures for deferred prosecution. Addressing the situation at issue here, a deferred
prosecution agreement made after a charge is filed, Dreidlein states that “the parties may
agree and the court may approve of a condition requiring incarceration.” He contends,
however, that he did not agree to such a condition. His contention is incorrect, because the
deferred prosecution agreement, which he signed, incorporated the plea agreement by
reference and the plea agreement, which he also signed, provided for a jail term to be
determined by the District Court based on the parties’ arguments. Moreover, as noted above,
Dreidlein expressly acquiesced to the State’s 90-day sentencing recommendation at the
sentencing hearing. When a party acquiesces to an error, that party loses the right of
objecting to it. See State v. Gray, 2004 MT 347, ¶ 20, 324 Mont. 334, ¶ 20, 102 P.3d 1255,
¶ 20 (citation omitted).
¶5 In his reply brief, Dreidlein argues the District Court improperly imposed the 90-day
jail term related to the felony fish and game offense because the court also sentenced him
to a 45-day jail term--apparently referring to his sentence for a misdemeanor assault charge,
which was filed under a different cause number. We do not address this argument, as it
appears for the first time in the reply brief. See Rule 23(c), M.R.App.P.; State v. Murphy,
2003 MT 276, ¶ 14, 317 Mont. 500, ¶ 14, 78 P.3d 843, ¶ 14 (citations omitted).
¶6 Affirmed.
/S/ KARLA M. GRAY
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We concur:
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
Justice James C. Nelson specially concurs.
¶7 I concur in the result here for the reasons stated. That said, I have serious concerns
about the propriety of imposing incarceration as part of a deferred prosecution agreement in
view of the plain language of § 46-16-130, MCA, which provides that the agreement is
entered into prior to the filing of a charge and which specifies the sorts of conditions that can
be imposed during the deferral period--incarceration not being one of those.
/S/ JAMES C. NELSON
Justice Jim Rice joins in the special concurrence of Justice James C. Nelson.
/S/ JIM RICE
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