State v. E. Ness

03/17/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 19-0250
DA 19-0250
FILED
STATE OF MONTANA, MAR 1 7 2020
Bowen Greenwood
Clerk of Supreme Court
Plaintiff and Appellee, Stat® of Montana
v. ORDER
ERNEST FREDRICK NESS,
Defendant and Appellant.
Ernest Fredrick Ness appeals the March 1, 2019 Dispositional Order issued by the
Eighteenth Judicial District Court. Through counsel,the parties have stipulated and moved
for an order remanding the case to the District Court with instructions to award "street time"
credit.
Ness originally received a suspended sentence on January 26,2009,for sexual assault
ofa minor. A condition ofhis sentence was to complete sex offender treatment. Ness began
serving his suspended sentence on September 24, 2015. He enrolled in sex offender
treatment but was suspended on November 28,2017,and was terminated from the program
on May 14, 2018. Ness appeared before the District Court on March 1, 2019, for violating
the terms and conditions ofhis suspended sentence. As a result ofthe violation,the District
Court committed Ness to the Department of Corrections(DOC)for a period of eight years
with three years suspended. Ness requested credit for time served on probation, but the
District Court denied him any such credit because he had failed to follow the rules of
supervision.
The Attorney General's Office concedes that, pursuant to § 46-18-203(7)(b)(2017),
Ness is owed 797 days ofcredit for elapsed time served on probation ("street time credit").
This amount represents the period from September 24, 2015 (the date Mr. Ness began
serving his suspended sentence)to November 28,2017(the date ofhis suspension from sex
offender treatment). The parties have further stipulated to a dismissal of the remainder of
this appeal with prejudice.
Having reviewed the parties' stipulation, and good cause appearing,
IT IS HEREBY ORDERED the parties' stipulated motion is GRANTED. This matter
is REMANDED to the District Court with instructions to amend its Dispositional Order to
award Ness 797 days of credit for elapsed time served on probation toward his five-year
sentence under Cause No. DC-03-56B.
IT IS FURTHER ORDERED that the appeal is DISMISSED with prejudice.
The Clerk is directed to provide a copy ofthis Order to the Gallatin County District
Court under Cause No. DC-03-56B,Hon. Rienne McElyea presiding; to counsel ofrecord;
and to counsel for the Dzrtment of Corrections.
DATED this I -.4" Tay of March, 2020.
Chief Justice
cJLit )k, Justices