Opinion
DA 21-0566
03-07-2023
STATE OF MONTANA, Plaintiff and Appellee, v. JASON DEAN KELLEY, Defendant and Appellant.
ORDER
Jason Dean Kelley appeals his sentence for felony driving under the influence of alcohol or drugs in violation of § 61-8-401. MCA. Kelley argues that the District Court's written judgment requiring him to pay all future medical and incarceration costs is illegal because the condition was not orally pronounced and is not authorized by statute.
The State has now filed a Notice of Concession, without adopting all of Kelley's arguments. The State agrees that, although imposed in the written judgment, the District Court in its oral pronouncement of sentence did not order Kelley to pay the cost of his incarceration in a detention center under § 7-32-2245. MCA. Accordingly, the parties agree that this Court should remand the case to the District Court with instructions to strike condition 27 from the Judgment and Commitment. The State observes, however, that Kelley does not challenge condition 22, which requires him, if found financially able, to "pay the costs of imprisonment, probation, and alcohol treatment ordered by the court." The State represents that condition 22 was orally imposed and included in the written judgment.
Having reviewed the parties' submissions, and good cause appearing, IT IS ORDERED that this case is remanded to the First Judicial District Court with instructions to strike condition 27 in the September 13, 2021 judgment of conviction and sentencing order. Kelley having raised no other issues for consideration, this appeal is DISMISSED.
The Clerk is instructed to provide copies of this Order to all counsel of record and to the Honorable Michael F. McMahon, presiding District Judge.