Opinion
OP 23-0717
01-02-2024
RACHELL FLORES, Petitioner, v. STATE OF MONTANA, Respondent.
ORDER
By way of habeas corpus, Rachell Flores seeks another District Court Judge to preside over proceedings in the First Judicial District Court, Lewis and Clark County. Flores is currently under the supervision of the Helena Probation and Parole Office.
Flores indicates that her incarceration is illegal because her sentence is longer than the law allows and violates the right to be free from double jeopardy. Flores explains that she has two sentences, amounting to twenty,years, for issuing a bad check in both Jefferson County and Lewis and Clark County District Courts. She contends that this "non drug felony" should not exceed five years. She also provides that she has a child custody case in Lewis and Clark County. Flores requests "removal of Judge Seeley from [her] custody case, protective order of [her] child[,]" as well as "removal from all State Probation because [she] did 7½ years good time and the State limit is 5." Flores does not provide any supporting documentation.
We secured copies of Flores's criminal judgments. In August 2013, the Lewis and Clark County District Court imposed a ten-year sentence to prison, all suspended, for felony issuing a bad check (common scheme). The District Court held that Flores owed $28,477.20 in restitution. The District Court awarded two days for credit for time served.
In September 2013, the Jefferson County District Court committed Flores to the Department of Corrections (DOC) for a suspended, ten-year term for felony issuing a bad check. The Jefferson County sentence was to run consecutively to the Lewis and Clark County sentence. The court ordered Flores to pay restitution of $4,300.00 to a named party.
On March 23, 2023, the Lewis and Clark County District Court revoked Flores's suspended sentence based on a report of violation noting that Flores had absconded. The court imposed a ten-year suspended term upon revocation. The court awarded credit for time served of 42 days, from August 8-9, 2012 and July 30, 2022 to September 7, 2022. The court also awarded elapsed time from August 29,2013 to September 22,2021, or eight years and 25 days (hereinafter sentence upon revocation).
Flores provides no law to support her arguments. We conclude that she has a valid sentence. The maximum punishment for felony issuing a bad check is ten years, pursuant to § 45-6-316, MCA. The 2011 version of the statutes apply because Flores committed her offenses in 2012. "If the offender has engaged in issuing bad checks that are part of a common scheme or if the value of any property, labor, or services obtained or attempted to be obtained exceeds $1,500, the offender shall be fined not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both." Section 45-6-316(3), MCA (2011). Both of Flores's 2012 offenses exceeded $1,500.00 in value; therefore, both offenses were subject to the 10-year maximum sentence.
Flores's sentence upon revocation is not any longer and does not violate the right to be free from double jeopardy. She does not have a twenty-year sentence. "[Revocation of a suspended sentence based upon violations of probationary conditions and reinstatement of the original sentence does not violate a person's constitutional rights against double jeopardy, although a court is limited to the parameters of the sentence imposed in,the initial suspended sentence and credit must be allowed for time already served in a detention center." State v. Dewitt, 2006 MT 302, ¶ 10, 334 Mont. 474, 149 P.3d 549 (citations omitted). With the award of credits, Flores has less than two years to serve on the sentence upon revocation. We point out that good time is not the same as elapsed time and that there is no limit, as Flores suggests. See § 46-18-20l(7)(b), MCA (2021).
As to Flores's request to remove Judge Seeley from her child custody case, a writ of habeas corpus is not the remedy for issues regarding child custody proceedings. Section 46-22-101(1), MCA.
Flores is not entitled to removal from all State Probation because her sentence is valid. Flores has not demonstrated illegal incarceration, and she is precluded from challenging a sentence upon revocation through this remedy. Section 46-22-101 (2), MCA. Therefore, IT IS ORDERED that Flores's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk will provide a copy of this Order to counsel of record and to Rachell, Flores at the address given as well as through the email address provided.