Opinion
OP 23-0397
08-01-2023
GREGORY DEAN LEHMAN, Petitioner, v. COMMANDER LESTER, Respondent.
ORDER
Gregory Dean Lehman has filed a Petition for Writ of Habeas Corpus, stating that he is "entitled to habeas corpus relief based on [his] right to be free from Double Jeopardy, which the Fifth Amendment of the United States Constitution and Article II Section 25 of the Montana Constitution [guarantees] along with further protections offered under" § 46-11-410, MCA. Lehman is incarcerated in the Yellowstone County Detention Center.
This Court is familiar with Lehman's history, and he provides copies of relevant documents. On October 26, 2021, the City of Billings Municipal Court revoked Lehman's suspended sentences for seven misdemeanor convictions, including endangering welfare of children, social host, and unlawful transactions with children. The Municipal Court imposed consecutive sentences of 180 days in jail due to Lehman's probationary violations.
See Lehman v. Cpt. Valdez, No. OP 220-0258, Order (Mont. May 31, 2022).
Lehman contends that his sentence is illegal because it violates his right to be free from double jeopardy. He states that "[o]n October 6, 2021, the City of Billings filed a petition to revoke sentence along with an affidavit of violation." Lehman challenges the statutes concerning his convictions as well puts forth other definitions.
Lehman provides that he attended the hearing concerning his violation of the suspended sentence. Section 46-18-203(6)(a), MCA. "If the judge finds that the offender has violated the terms and conditions of the suspended ... sentence, the judge may[] revoke the suspension of the sentence . . . Section 46-18-203(7)(a)(iii). MCA. This Court has stated before that a sentence upon revocation does not violate double jeopardy. State v. Dewitt. 2006 MT 302, ¶¶ 7-9, 334 Mont. 474. 149 P.3d 549. "[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[.]" Dewitt, ¶ 10 (citation omitted). Here, the judge found that Lehman had violated his probationary term, revoked his suspended term, and imposed a six-month term for each of the seven convictions. The sentence upon revocation is not any longer, and the sentence upon revocation does not violate his right to be free from double jeopardy. Lehman is not entitled to habeas corpus relief. Section 46-22-101(2), MCA. Therefore, IT IS ORDERED that Lehman's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to: Commander Lester, YCDC; counsel of record, and Gregory Dean Lehman personally.