author: JUSTICE HUNT

text:
    DENISE KUNST and CHARLA ERPENBACH, Plaintiffs and Appellants, v. CHARLES B. PASS and SHIRLEY A. PASS, Defendants and Respondents.
    No. 97-168.
    Submitted on Briefs November 6, 1997.
    Decided March 31, 1998.
    1998 MT 71.
    55 St.Rep. 289.
    957 P.2d 1.
    288 Mont. 264.

      For Appellant: Michael J. San Souci, Bozeman.
    For Respondent: Steve Reida, Landoe, Brown, Planalp, Braaksman & Reida, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Plaintiffs Denise Kunst (Kunst) and Charla Erpenbach (Erpenbach) (collectively “Plaintiffs”) appeal from the order of the District Court for the Eighteenth Judicial District, Gallatin County, denying their post-trial motion for attorney’s fees and costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

¶2 The issues raised on appeal are as follows:

¶3 1. Did the District Court err in denying Plaintiffs’ bill of costs as untimely?

¶4 2. Did the District Court err in denying Plaintiffs’ request for attorney’s fees?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Erpenbach, a tenant, and Kunst, her overnight guest, suffered carbon monoxide poisoning due to a furnace leak while staying at an apartment rented from Defendants Charles Pass and Shirley Pass. Plaintiffs filed a four-count complaint against Defendants. The caption of the first count alleged general negligence, and paragraph seven of that count stated that Plaintiffs were bringing that claim pursuant to § 27-1-701, MCA, and the Residential Landlord and Tenant Act, § 70-24-303(l)(d), MCA (the “Act”). The second count alleged breach of warranty of habitability and the third count alleged strict liability. Both of those counts also referenced the Residential Landlord and Tenant Act, § 70-24-303, et seq., MCA. Finally, the fourth count alleged res ipsa loquitur. While that count did not reference the Act, it incorporated by reference every allegation contained within the first three counts. Among the various damages requested, Plaintiffs requested costs of the suit and any other relief the court deemed just and proper.

¶6 The case proceeded to a jury trial on August 20,1996. After the presentation of the evidence, the Plaintiffs moved for a directed verdict on the liability issue pursuant to the Act. The presiding District Court Judge Larry Moran granted their motion and held that the jury would consider only the amount of damages to be assessed. At that same hearing, the Plaintiffs also requested costs and attorney’s fees pursuant to the Residential Landlord and Tenant Act. However, the court reserved its decision on the applicability of that Act and the attorney’s fees issue until the conclusion of the trial.

¶7 The jury returned a verdict for Plaintiffs on August 22, 1996, awarding them each $5,000 in damages. Plaintiffs filed a post-trial motion for attorney’s fees and costs on September 10, 1996. On that same date, the District Court formally entered judgment in the case. Subsequently, on December 6,1996, the District Court held a hearing on the issue of costs and attorney’s fees, and took the matter under advisement.

¶8 Before he had decided Plaintiffs’ motion, District Court Judge Moran retired on December 31, 1996. The case was thus reassigned to District Court Judge Mike Salvagni, who reheard the motion on February 14, 1997. On March 21, 1997, the court issued an order denying Plaintiffs’ request for both costs and attorney’s fees. It held that Plaintiffs’ motion for costs was untimely pursuant to § 25-10-501, MCA. The court also held that the request for attorney’s fees was untimely, because Plaintiffs had not placed Defendants on notice of a claim for attorney’s fees until after the court directed a liability verdict. Finally, it held that the Residential Landlord and Tenant Act did not apply, because the Plaintiffs had not limited their cause of action to a violation of that statute, and Plaintiffs had prevailed in the directed verdict solely under the general theory of negligence. Plaintiffs appeal.

ISSUE ONE

¶9 Did the District Court err in denying Plaintiffs’ bill of costs as untimely?

¶10 We review a district court’s conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶11 The law requires a prevailing party to file the bill of costs within five days after the jury renders its verdict. Section 25-10-501, MCA, states:

Bill of costs. The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, his attorney or agent, or the clerk of his attorney, stating that to the best of his knowledge and belief the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.

¶12 In this case, the jury verdict was signed and filed on August 22,1996. Plaintiffs filed their motion to tax costs with a memorandum of costs nineteen days later on September 10, 1996. Even allowing Plaintiffs two additional days for the weekend and three additional days for mailing, the Plaintiffs failed to file their bill of costs within five days of the jury verdict. The District Court thus properly denied Plaintiffs’ bill of costs as untimely.

¶13 Plaintiffs argue that at the August 22,1996 hearing where the court granted Plaintiffs a directed verdict, District Court Judge Moran also granted them an extension of the five-day time limit when it ordered that their bill of costs should be filed within twenty days after the conclusion of trial. But the transcript of the hearing contains no discussion about an enlargement of the time for filing the bill of costs, and the record does not reflect that such an order was ever entered. At the December 6,1996 hearing on the motion for attorney’s fees, Judge Moran himself did not specifically recall ever making such an order, although he conceded that it “sounds like something the Court would do,” and stated that he was “not going to dispute” that he gave the Plaintiffs twenty days to file that document.

¶14 Notwithstanding the court’s concession that it might have allowed the Plaintiffs’ an additional twenty days, the bill of costs is untimely. The five-day time limit provided for in the statute is mandatory: a party “must” file a memorandum of costs within five days after the verdict is entered. Section 25-10-501, MCA. Plaintiffs were thus tardy in filing that document.

¶ 15 Plaintiffs next contend that the five-day limit did not begin to run until the District Court entered the judgment on September 10, 1996. Because they filed their bill of costs that same day, they maintain that they were thus well within the statutory time period. But it is well-settled that where a case involves a jury trial, as opposed to a bench trial, the time period begins to run on the day following the jury verdict and not on the entry of the judgment. R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278, 288-89, 777 P.2d 338, 344. In Grover, this Court noted that in a bench trial, the judge has more latitude than a jury as to when it will render its decision. In such a case, the time period is computed from the day the court enters its judgment, and not when the court orally announces its decision. The oral announcement of a decision, which may be subject to changes when the court finally enters the judgment, is not comparable to the jury rendering its verdict. Thus, in a jury trial, the time limit begins to run on the day after the jury enters its verdict. Grover, 238 Mont. at 288-89, 777 P.2d at 344. See also Rocky Mountain Enterprises, Inc. v. Pierce Flooring Carpet Barn (1997), [286 Mont. 282], 951 P.2d 1326, 1337 (“[T]o claim costs under § 25-10-501, MCA, the plaintiffs had five days from the date of the jury verdict to file and serve upon the adverse party a verified memorandum of costs.”)

¶16 Plaintiffs maintain that this case should be treated as a bench trial for purposes of computing the time limitations, because the District Court granted Plaintiffs a directed verdict on the liability issue. Even so, however, the case still involved a jury trial and the jury rendered a verdict on the damages issue. When the court granted the directed verdict, it did not serve as the trier of fact, but instead directed liability as a matter of law.

¶ 17 We hold that the District Court did not err in denying Plaintiffs’ bill of costs as untimely.

ISSUE TWO

¶18 Did the District Court err in denying Plaintiffs’ request for attorney’s fees?

¶ 19 As previously stated, the standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County, 271 Mont. at 469, 898 P.2d at 686.

¶20 In denying the Plaintiffs’ motion for attorney’s fees, the District Court stated that the Defendants’ “liability was limited to the general theory of negligence as Judge Moran concluded.” After considering the allegations of the complaint, the directed verdict, and the jury verdict on damages, the court reasoned that Plaintiffs prevailed solely under a general theory of negligence and not under the Residential Landlord and Tenant Act, § 70-24-101, MCA, et seq. It thus concluded that the attorney fees provision of that Act did not apply and denied Plaintiffs’ motion.

¶21 We do not agree. In rendering the directed verdict, Judge Moran did not conclude that “liability was limited to the general theory of negligence.” Instead, he specifically left open the question as to whether the Residential Landlord and Tenant Act applied, and if so, whether Plaintiffs were entitled to attorney’s fees under that statute. As he stated:

Well, that’s a matter that will have to be handled after the jury trial is over. I haven’t at this time made any determination about whether the Landlord/Tenant Act applies to this case, nor whether my ruling is based upon the Landlord/Tenant Act. So when we get around to that issue, you’re going to have to bear the burden of showing the applicability of the Landlord/Tenant Act, as well as your entitlement to attorney’s fees under that Act.

Before Judge Moran could rule on that issue, he retired. Upon review, we conclude that liability was not limited to the general theory of negligence, but also arose under the Act, § 70-24-101, MCA, et seq.

¶22 The Residential Landlord and Tenant Act provides in part:

(1) A landlord shall:
(b) make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
(d) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord;

Section 70-24-303, MCA.

¶23 In this case, every single count of Plaintiffs’ complaint references or incorporates by reference the Residential Landlord and Tenant Act. Although the first count is captioned as “general negligence,” the count specifically states that it is also brought pursuant to the Act, § 70-24-303(l)(d), MCA. When the Plaintiffs moved for a directed verdict, they did not do so on general negligence grounds, but instead contended that the Defendants violated the Act. As the transcript of the hearing on that motion reveals:

[Plaintiffs’ attorney]: I’d like — at this time, I would like to move for a directed verdict on behalf of the Plaintiffs in this case. As reflected in our proposed jury instructions, as reflected in the law, referenced in our trial brief, I think that this case clearly falls under the Montana Residential Landlord & Tenant Act and, in particular, Section 70-24-303(l)(d), which, in part, provides, “A landlord shall maintain in good and safe working order and condition all heating, ventilating and other facilities and appliances supplied or required to be supplied by him.”
Based upon that, based upon what are, in effect, the admissions at trial of the Defendants, the acknowledged responsibility on their part, I believe that it would be appropriate to have a directed verdict on this issue.

¶24 When Judge Moran granted Plaintiffs’ motion for a directed verdict, he held that as a matter of law the Defendants failed to keep the heating system in a good and safe working order. He stated:

[T]he owners of the premises were well aware that they had a duty to inspect the premises on a routine basis, that duty and warning or admonition or advice that had been rendered first in the inspection report. And I think that that is a matter that repeats itself down through every year after the inspection report, that they should check out these matters on an annual basis.
The evidence is clear that they never checked out the premises. They never looked at the heating system. They never did anything to inspect the heating system, either personally or through the retaining services of an expert to do that.
We have then the testimony of Mr. Doug Schnell, who testifies that when he got to the premises and looked at the thing, that the boiler — that it was in a state and a condition that an inspection of it would have — he believes would have precluded the boiler ever to have gotten into that condition, so that there could have been the leaking of gas fumes resulting in carbon monoxide poisoning to the Plaintiffs.
The defendant has essentially come to court with no evidence that would counter that, either in weight or quantity. I feel that this is a proper case to direct a verdict of liability on behalf of the Plaintiffs, and I’ll do that.

¶25 Although the court did not expressly hold that the Defendants violated the Act, the undisputed facts that form the very basis of his holding indicate that as a matter of law the Defendants breached the duty imposed by the Act to “make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition,” and “maintain in good and safe working order and condition all ... heating ... facilities ... supplied by the landlord.” Section 70-24-303(b),(d), MCA. We thus hold that the Defendants breached their statutory duties pursuant to the Residential Landlord and Tenant Act.

¶26 Having held that the Defendants breached the duties imposed by the Act, the next question is whether this breach exposed Defendants to liability for damages and for attorney’s fees. Defendants contend that an award is not warranted because there is no precedent for a personal injury plaintiff to receive attorney’s fees under the Act. Defendants are incorrect. In Calder v. Anderson (1996), 275 Mont. 273, 911 P.2d 1157, we addressed the circumstances under which a landlord could be held liable for personal injuries caused to a tenant for failing to comply with the Act. We stated that because “§ -303 of the Act was obviously intended by the legislature to be for the benefit and safety of tenants, a landlord’s failure to comply with the statute is negligent per se.” Calder, 275 Mont. at 278, 911 P.2d at 1160. We also repeated the well-settled holding that:

The violation of statutes is negligence as a matter of law when the purpose of the statute is to protect a class of persons, the plaintiff is a member of that class, and the defendant is a person against whom a duty is imposed. The purpose of the statute also must be to protect against the kind of injury received by the plaintiff.

Calder, 275 Mont. at 278, 911 P.2d at 1160 (citing Nehring v. LaCounte (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333) (internal citations omitted).

¶27 In this case, Defendants, as landlords, were members of the class on whom a duty was imposed; carbon monoxide poisoning from the faulty heating system was the type of injury that the statute was designed to prevent; and Plaintiff Erpenbach, a tenant, was a member of the class the Act was designed to protect. See Calder, 275 Mont. at 279, 911 P.2d at 1160. The Defendants, however, contend that Plaintiff Kunst has no standing to enforce remedies under the Residential Landlord and Tenant Act because she was only an overnight guest of Defendant Erpenbach and was not a tenant. The Defendants cite no authority and provide no analysis to support this position.

¶28 One Montana case has touched upon the issue of a landlord’s liability to third persons under the Act. Rennick v. Hoover (1980), 186 Mont. 167, 606 P.2d 1079, overruled on other grounds by Richardson v. Corvallis Pub. School Dist. (1997), [286 Mont. 309], 950 P.2d 748. In Rennick, a guest of a tenant brought suit against the landlords after he fell on an icy cement slab in the common area of the apartment building. Rennick, 186 Mont. at 169, 606 P.2d at 1080. This Court declined to address the landlord’s statutory liability under the Residential Landlord and Tenant Act, because the plaintiff was not a tenant. This Court stated:

In Montana, a landlord owes a duty to the tenant to “keep all common areas of the premises in a clean and safe condition.” Section 70-24-303, MCA. However, this appeal does not involve an injury to a tenant. ...

Rennick, 186 Mont. at 170, 606 P.2d at 1081. In making that statement, the Court provided no further analysis and it is not clear whether the issue of a landlord’s liability to third persons under the Act was actually an issue on appeal. The statement constitutes dicta only and was not the holding of the Court. We thus view the issue of whether a guest of a tenant is a member of the class that the Act was intended to protect to be one of first impression in Montana.

¶29 Upon review, we conclude that pursuant to Montana’s Residential Landlord and Tenant Act, a landlord’s liability is not limited to tenants, but also extends to third persons who may foreseeably be on the premises. Indeed, the Act expressly extends its remedies to any person who is aggrieved when the landlord breaches the duties embodied in § 70-24-303, MCA. Specifically, § 70-24-401, MCA, states that the “remedies provided by this chapter must be administered so that an aggrieved party may recover appropriate damages.” The comment to the corresponding section of the Uniform Residential Landlord and Tenant Act, from which Montana’s Act was substantially adopted, explains that “[t]he use of the words ‘aggrieved party’ is intended to indicate that in appropriate circumstances rights and remedies may extend to third persons under this Act or supplementary principles of law. ...” Uniform Residential Landlord and Tenant Act, 7B Uniform Laws Annotated section 1.105(a).

¶30 In our view “aggrieved party” includes third persons foresee-ably on the property, such as the tenant’s guest, who suffers injuries when the landlord breaches the duties embodied in the Act. This Court is not alone in its interpretation of the Act. Based upon precisely the same reasoning, the Oregon Supreme Court has also held that a tenant’s guest has a cause of action against a landlord pursuant to Oregon’s Residential Landlord and Tenant Act for injuries resulting from the landlord’s violation of its statutory duties. Humbert v. Sellars (Or. 1985), 708 P.2d 344, 347. The pertinent portions of Oregon’s Act are substantially identical to Montana’s Act. Upon interpreting the meaning of “aggrieved party” in the Oregon Act, the Oregon Supreme Court similarly held:

An aggrieved party includes a tenant’s guest who is injured by a landlord’s failure to maintain the premises in a habitable condition, if the tenant herself could recover damages for the same injury. The measure of a “habitable condition” may be what is habitable by those who reside in the premises, but when the measure is breached, ORS 91.725 recognizes that others may suffer the consequences. The [tenant’s guest] therefore has a cause of action if she is injured because of the [landlord’s] breach of the act.

Humbert, 708 P.2d at 347.

¶31 In addition to the term “aggrieved party” contained within the remedies section of the Act, a review of § 70-24-303, MCA, itself also leads us to conclude that the duties imposed by the Act extend to third persons such as a guest of a tenant. The comment to the section of the Uniform Residential Landlord and Tenant Act which corresponds to § 70-24-303, MCA, indicates that the standards of habitability embodied in that section extend beyond simply the contractual rights between a landlord and a tenant. Instead, the standards involve a matter of public police power. The comment states:

Vital interests of the parties and public under modern urban conditions require the proper maintenance and operation of housing. It is thus necessary that minimum duties of landlords and tenants be set forth.
Standards of habitability dealt with in this section are a matter of public police power rather than the contract of the parties or special landlord-tenant legislation. This section establishes minimum duties of landlords consistent with public standards.

Uniform Residential Landlord and Tenant Act, 7B Uniform Laws Annotated section 2.104.

¶32 The fact that a person does not enjoy a contractual landlord/tenant relationship with the landlord is thus not dispositive. Rather, what is at issue is whether the interests of public standards require that the standards of habitability extend not only to tenants but to third persons in certain circumstances. We conclude that they do. As evidence of these standards, we turn to other areas of the law that govern the landlord’s duty. For example, in Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491, we held that the status of the injured party does not affect a property owner’s general duty of care. Limberhand, 218 Mont. at 140, 706 P.2d at 496. Instead, a landlord’s duties under § 27-1-701, MCA, extend to all persons foreseeably on the premises, including social guests of a tenant. Limberhand, 218 Mont. at 145, 706 P.2d at 498, 499. Although the Residential Landlord and Tenant Act establishes minimum duties of the landlord, nothing in the Act limits those duties only to a tenant, and indeed we conclude that the public interests require those duties to extend to any person foreseeably on the premises. In short, we conclude that both Plaintiffs were members of the class the Act was designed to protect, and Defendants’ liability arose under the Residential Landlord and Tenant Act, § 70-24-303, MCA.

¶33 Because liability arose under the Act, the Defendants may also be required to pay attorney’s fees. The Act provides that reasonable attorney’s fees may be awarded to any person who prevails in an action “arising under this chapter.” Section 70-24-442(1), MCA. In this case, both Plaintiffs prevailed in an action arising under the Act. Hence, attorney’s fees are an appropriate award.

¶34 Defendants nonetheless urge this Court to affirm the District Court’s order denying attorney’s fees for an additional reason. They point to Rule 8(a), M.R.Civ.P., which requires the complaint to contain “a demand for judgment for the relief the pleader seeks,” and contend that the District Court correctly held that Plaintiffs did not put them on notice in their complaint, their pretrial order or their trial brief that they sought attorney’s fees. They maintain that the first time Plaintiffs raised a claim for attorney’s fees was after the court granted a directed verdict on liability, and insist that the failure to present this claim earlier bars their claim entirely. We reject Defendants’ position for several reasons.

¶35 First, it is well settled that Montana’s rules of civil procedure, including Rule 8(a), M.R.Civ.P., are notice pleading statutes. Mysse v. Martens (1996), 279 Mont. 253, 266, 926 P.2d 765, 773; Butte Country Club v. Metropolitan Sanitary & Storm Sewer Dist. No. 1 et al. (1974), 164 Mont. 74, 77, 519 P.2d 408, 409. Pursuant to Rule 8(a), M.R.Civ.P., a complaint must put a defendant on notice of the facts the plaintiff intends to prove; the facts must disclose the elements necessary to make the claim; and the complaint must demand judgment for the relief the plaintiff seeks. Mysse, 279 Mont. at 266, 926 P.2d at 773; Rule 8(a), M.R.Civ.P.

¶36 In this case, the complaint does not specifically request attorney’s fees. However, the complaint itself was brought pursuant to the Residential Landlord and Tenant Act. As pointed out earlier, the first count specifically states that it was brought pursuant to § 70-24-303(1)(d), MCA, and both the second and third counts specifically reference that Act. The fourth count incorporates by reference each allegation of the other counts, including the Act. Both Plaintiffs and Defendants reference the Act several times in the pretrial order, and the Plaintiffs’ trial brief addresses the Plaintiffs’ claim that the Defendants were hable under the Act for failing to properly maintain the heating system. The Act itself provides that attorneys fees may be awarded to the prevailing party in an action “arising under this chapter.” Section 70-24-442(1), MCA. Accordingly, although the Plaintiffs did not specifically request attorneys fees, it should have been apparent to Defendants that if Plaintiffs prevailed, an award of attorneys fees was possible. Furthermore, in the complaint the Plaintiffs requested that they be awarded “other and further relief as the Comet may deem just and proper.” This Court liberally construes pleadings, and under this demand for general relief, the court could grant Plaintiffs any relief to which they were entitled.

¶37 Second, any claim by the Defendants of unfair surprise or that they had no opportunity to defend themselves lacks merit. The Defendants had a full opportunity to file objections to the request for attorneys fees and to be heard at oral argument as to why the Plaintiffs should not receive such an award. We conclude that the Defendants did indeed have notice and an opportunity to defend themselves.

¶38 Finally, attorney’s fees may be awarded only to a “prevailing party,” which “means the party in whose favor final judgment is rendered.” Section 70-24-442(2), MCA. It was thus entirely proper and necessary for Plaintiffs to wait until after the court had granted them a directed verdict to file a motion for attorneys fees. See § 70-24-442(1), MCA. Plaintiffs immediately requested attorney’s fees at the hearing where the court granted a directed verdict, but the court stated it would not consider the motion until a later date after the jury had rendered its verdict. Indeed the court conceded that it probably gave them twenty days after the verdict to file their motion. Montana does not have a statute that provides for a mandatory time limit for filing such a motion, such as the statute that requires the bill of costs to be filed within five days of the verdict. Section 25-10-501, MCA. In sum, we hold that the Plaintiffs’request for attorney’s fees was timely.

¶39 For the foregoing reasons, we hold that the District Court erred in denying Plaintiffs’ request for attorney’s fees. However, the award of attorney’s fees still remains within the court’s discretion. Section 70-24-442(1), MCA. Because the Plaintiffs’ request for attorney’s fees was denied for legal reasons, the court did not exercise its discretion. We thus remand this issue to the District Court for a determination as to whether to award attorney’s fees, and if so, for what amount.

¶40 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

JUSTICES TRIEWEILER, LEAPHART, REGNIER and NELSON concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    RAYMOND DALE RHODE, Plaintiff and Appellant, v. LOIS HALL ADAMS, Defendant and Respondent.
    No. 97-213.
    Heard January 20, 1998.
    Submitted January 21, 1998.
    Decided April 3, 1998.
    1998 MT 73.
    55 St.Rep. 303.
    957 P.2d 1124.
    288 Mont. 278.

      For Appellant: John L. Hollow (argued); Attorney at Law; Helena.
    For Respondents: Diana P. Leibinger-Koch (argued), Attorney at Law, Helena (for Respondent Adams).
    For Amicus Curiae: Patricia O’Brien Cotter; Cotter & Cotter, P.C.; Great Falls (for Montana Trial Lawyers Association); Robert W. Minto, Jr.; Attorneys Liability Protection Society; Missoula; and John R. Gordon; Reep, Spoon & Gordon, PC.; Missoula (for Attorneys Liability Protection Society); W. Corbin Howard; Attorney at Law; Billings (for Child and Family Law Section, State Bar of Montana).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Raymond Dale Rhode brought this action in the District Court for the First Judicial District in Lewis and Clark County to recover damages caused by the violation of his civil rights by the Honorable Dorothy McCarter, District Judge of the First Judicial District, and by the violation of his right to procedural due process by Lois Hall Adams, the attorney who represented his wife in the parties’ dissolution of marriage action. Rhode moved the District Court for an order which would allow him to amend his allegations against Adams and add his minor children as plaintiffs. The District Court denied Rhode’s request and granted the defendants’ motions to dismiss. Rhode appeals from the District Court’s denial of his motion to add his children as plaintiffs and, necessarily, from the District Court’s dismissal of Adams. We affirm the order and judgment of the District Court.

¶2 The issues raised on appeal are whether, by adding Rhode’s children as plaintiffs, his amended complaint would have stated a cause of action against Adams, and whether the District Court, therefore, erred when it denied Rhode’s motion to file an amended complaint.

STATEMENT OF FACTS

¶3 Raymond Dale Rhode was married to Kelly Lynn Lazenby in 1984. Three children were born of that marriage. They are now thirteen, eleven, and eleven years old, respectively. Rhode and Lazenby were divorced and then remarried in LeGrande, Oregon. The couple remained married until January 28,1991, when they divorced in Montgomery County, Tennessee. It is not clear from the record who was awarded custody following the second divorce. However, Rhode obtained physical custody of the children and moved with them to Townsend, Montana.

¶4 According to Rhode, on May 11,1993, his three children did not return from school to his home in Townsend. Rhode learned from the sheriff of Broadwater County that Lois Hall Adams, Lazenby’s attorney, had obtained Judge Dorothy McCarter’s signature on an order which, based on the decree of the Tennessee court, awarded sole custody of the couple’s children to Lazenby. Adams gave the order to the sheriff who then presented it to the school administrator at the children’s school, removed the children from the school, and handed them over to Lazenby. Lazenby immediately left the state of Montana with the children.

¶5 On July 14, 1993, the Honorable Jeffery Sherlock, District Judge of the First Judicial District, overturned Judge McCarter’s order. Judge Sherlock found that Rhode was not afforded adequate notice and opportunity to be heard before Judge McCarter issued her order.

¶6 In this action, Rhode alleged that Judge McCarter violated his civil rights because she was without jurisdiction to grant Lazenby custody of the children. He also contended that Adams is liable to him because she breached her duty to comply with Montana law. As a result of Judge McCarter’s and Adams’ actions, Rhode claimed to have expended a considerable amount of time, money, and energy in his efforts to locate and reestablish contact with his children after Judge McCarter’s order was quashed.

¶7 Rhode moved the District Court for an order which would allow him to amend his complaint by adding as plaintiffs the parties’ children and setting forth factual allegations that Adams owed a duty to the children. Rhode’s amended complaint would have alleged that Adams was negligent when she obtained the order because she failed to follow the laws and procedures that are intended to prevent the harm that was caused to the children. Rhode maintains that one of the children was physically and sexually abused while the children were with Lazenby both prior to this incident and after Lazenby removed the children from Montana. According to Rhode, but for the unlawful order that Adams sought and received from Judge McCarter, Lazenby would not have had the means to obtain physical custody of the children.

¶8 On December 18, 1996, Judge Thomas Honzel denied Rhode’s request to file an amended complaint. The court reasoned that, if filed, the amended complaint, which would add the children as plaintiffs, would not change the outcome of the case and would instead create additional expense and frustration for the parties. The District Court also granted Judge McCarter’s, the State of Montana’s, and Adams’ motions to dismiss. It concluded that Adams owed no duty to the children because they were not her clients and that Judge McCarter is shielded from suit by judicial immunity. Rhode, on behalf of the parties’ children, filed a notice of appeal.

STANDARD OF REVIEW

¶9 We have held that the determination that a complaint does not state a claim upon which relief can be granted is a conclusion of law which we review to determine whether the district court is correct. See Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317. We have further held that the question of whether a legal duty is owed by one person to another is a question of law. See Webb v. T.D. (1997), [287 Mont. 68] 951 P.2d 1008, 1011.

DISCUSSION

¶10 The issue Rhode raises on appeal is whether or not the District Court erred when it denied Rhode’s motion to file an amended complaint which would add his minor children as plaintiffs. That issue, necessarily, involves the related issue of whether, as amended, the complaint would have stated a cause of action against Adams. Rhode’s amended complaint, had it been filed, would have alleged that the children were injured by Adams’ negligence when she obtained the order which gave Lazenby custody of the children. Rhode contends that Article II, Section 16, of the Montana Constitution guarantees the children a remedy for the harm caused by Adams. That section provides all people with a speedy remedy for every injury of person, property, or character. Rhode further maintains that Adams is responsible for any harm she may have caused the children because § 27-1-701, MCA, states, except as otherwise provided bylaw, “everyone is responsible... for an injury occasioned to another by want of ordinary care.” Rhode contends that attorneys, including Adams, should not be an exception to that rule.

¶11 According to Rhode, the stated purposes of the Uniform Child Custody Jurisdiction Act involve the protection of children from the harmful effects of abduction and other unilateral removals of children, as well as to continuously protect the best interests of the children. See § 40-7-102(1)(e), MCA. He also argues that one of the stated purposes of Montana’s laws governing dissolution of marriage is to mitigate the potential harm to the parties children caused by the process of legal dissolution of marriage. See § 40-4-101(3), MCA.

¶12 We have held that in a professional negligence action, the plaintiff must prove that the professional owed him or her a duty. See Carlson v. Morton (1987), 229 Mont. 234, 238, 745 P.2d 1133, 1136. However, we have never discussed whether an attorney owes a duty to third persons to exercise care in the performance of services for his or her client.

¶ 13 Although Rhode concedes that there are no prior Montana decisions which create a duty from an attorney to someone other than his or her client, he relies on the following decisions from other jurisdictions: Goldberg v. Frye (Cal. 1990), 266 Cal Rptr. 483; Neal v. Baker (Ill. App. Ct. 1990), 551 N.E.2d 704, appeal denied (Ill. 1990), 555 N.E.2d 378; Trask v. Butler (Wash. 1994), 872 P.2d 1080. Each of these jurisdictions takes a slightly different approach to the issue of an attorney’s duty to a non-client. Rhode urges this Court to adopt the test and rule set forth in Trask.

¶14 In Trask, the Supreme Court of Washington adopted California’s multi-factor balancing test to determine whether an attorney owes a duty to a non-client. The multi-factor balancing test involves an analysis of the following six factors:

(1) the extent to which the transaction was intended to affect the plaintiff;
(2) the foreseeability of harm to the plaintiff;
(3) the degree of certainty that the plaintiff suffered injury;
(4) the closeness of the connection between the defendant’s conduct and the injury;
(5) the policy of preventing future harm; and
(6) the extent to which the profession would be unduly burdened by a finding of liability.

Trask, 872 P.2d at 1083. According to the Trask court, the first and threshold inquiry in the multi-factor balancing test is whether the attorney’s services were intended to affect the plaintiff. See Trask, 872 P.2d at 1083.

¶15 In Trask, the court analyzed the multi-factor balancing test within the context of the duty a personal representative’s attorney owes to the estate, or to the beneficiaries of the estate, and found that no duty is owed. See Trask, 872 P.2d at 1085. The court explained that the multi-factor balancing test does not impose legal malpractice liability upon the personal representative’s attorney, in part because “the unresolvable conflict of interest an estate attorney encounters in deciding whether to represent the personal representative, the estate, or the estate heirs unduly burdens the legal profession.” Trask, 872 P.2d at 1085. The court held that the multi-factor balancing test also requires an evaluation of public policy before a court can find a duty to a third party. It explained that the policy considerations which weigh against finding a duty to a non-client are the strongest when doing so would detract from the attorney’s ethical obligations to the client. See Trask, 872 P.2d at 1085. It described such a situation as one in which a duty to a non-client creates a risk of divided loyalties because of a conflicting interest or of potential for breach of confidence. According to the Trask court, conflicts of interest arise in estate matters whenever the interest of the personal representative is not harmonious with the interest of an heir and, thus, the estate proceedings become adversarial. See Trask, 872 P.2d at 1085.

¶16 Rhode contends that in this case all of the elements of the Trask multi-factor test are present and there is no danger of a division of loyalties. He maintains that if a division of loyalty arises, the attorney may request that counsel be appointed for the children.

¶17 We conclude, however, that while a multi-factor balancing test, such as that set out in Trask, may be effective when used to address the duties of attorneys in transactional matters or estate planning and probate practice, this model is not appropriate to define an attorney’s duties while representing clients in adversarial proceedings. In a disputed child custody case, for example, there would be substantial risk of divided loyalties between the client and the children.

¶18 California and Washington, the leading proponents of the multi-factor test, also recognize that this test does not apply in adversary situations. See Norton v. Hines (Cal. 1975), 123 Cal. Rptr. 237; Bowman v. John Doe Two (Wash. 1985), 704 P.2d 140. In Bowman, the Washington Supreme Court recognized that the “[e]xistence of a duty to an adverse party beyond the courtesy and respect owed all participants in the legal process would interfere with the undivided loyalty an attorney owes a client and would diminish an attorney’s ability to achieve the most advantageous position for a client.” Bowman, 704 P.2d at 144 (citation omitted).

¶19 Other jurisdictions have similarly found that to place a duty upon an attorney to a non-client in an adversarial situation would inhibit free access to the courts by unduly inhibiting attorneys from bringing close cases, innovative theories, or suing defendants who might retaliate. See Friedman v. Dozorc (Mich. 1981), 312 N.W.2d 585. As the Friedman court explained, an adverse party has no basis for reliance on the actions of an adversary’s counsel and that fact distinguishes an attorney’s relationship from the third-party relationship of other professions. See Friedman, 312 N.W.2d at 593-94.

¶20 The Colorado Court of Appeals found that an attorney representing a parent in a contested custody proceeding does not per se also represent the children’s interests. See McGee v. Hyatt Legal Services, Inc. (Colo. App. 1990), 813 P.2d 754. That court held that when custody is contested by each parent, such that the best interests of the child may be contrary to the parents’ wishes, the duty of the attorney to represent his or her client zealously and ethically is inconsistent with any duty he or she might owe to the child. See McGee, 813 P.2d at 757. The McGee court further explained that this principal is implicitly recognized in Colorado’s statute which permits the court to appoint an attorney to represent the minor child concerning custody, support, and visitation. See McGee, 813 P.2d at 757.

¶21 We agree that an attorney must be able to vigorously advocate his or her client’s interests in litigation without being compromised by obligations to non-clients. Such vigorous representation of a client is an essential part of the adversarial system. See Rules 1.2, 1.7,1.9, and 3.1, Montana Rules of Professional Conduct. This is not to say that an attorney who represents a parent in a contested child custody case should not advise his or her client to consider what is best for the children, and to work within the proper legal and ethical parameters when litigating custody and visitation. Nor are children without other protections. See § 40-4-205, MCA (appointment of guardian ad litem), and § 40-4-212, MCA (best interest of child to determine parenting plan). Furthermore, if the conduct of the attorney-advocate rises to the level of deceit, collusion, or intentionally reckless conduct, an injured party is entitled to recover treble damages (see § 37-61-406, MCA), and, under other limited circumstances, the attorney may be liable for malicious prosecution or abuse of process. See Hopper v. Drysdale (D. Mont. 1981), 524 F. Supp. 1039; Davis v. Sheriff (1988), 234 Mont. 126, 762 P.2d 221; Vehrs v. Piquette (1984), 210 Mont. 386, 684 P.2d 476. However, we conclude that if an attorney owes the same duty of care to both the parent and the children, he or she will be able to serve neither effectively.

¶22 As stated by the court in Friedman, 312 N.W.2d 585, when the professional relationship between an attorney and a client is placed within an adversarial context in which the attorney functions as the advocate for the client, the attorney has a different relationship to non-clients than do members of other professions. This distinction is what differentiates this type of case from one involving non-client relationships with doctors, probate and estate planning attorneys, accountants, realtors, architects, and other similarly situated professionals.

¶23 We therefore conclude that because the interests of a parent and those of a child in a child custody case may not be identical, the attorney’s duty runs solely to his or her client, except as otherwise specified in this opinion.

¶24 Accordingly, we conclude that the District Court did not err when it denied Rhode’s motion to file an amended complaint. The judgment of the District Court is, therefore, affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT, REGNIER, DISTRICT COURT JUDGE JOHN S. HENSON, sitting for JUSTICE LEAPHART and DISTRICT COURT JUDGE THOMAS M. McKITTRICK, sitting for JUSTICE GRAY concur.


author: JUSTICE REGNIER JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES LANE, Defendant and Appellant.
    No. 96-514.
    Submitted on Briefs October 30, 1997.
    Decided April 7, 1998.
    1998 MT 76.
    55 St.Rep. 311.
    957 P.2d 9.
    288 Mont. 286.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General; Helena; Dennis Paxinos, Yellowstone County Attorney; Billings.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 James Lane appeals from the entry of a nunc pro tunc order entered by the Thirteenth Judicial District Court, Yellowstone County, correcting the written judgment and commitment to conform to the sentence as orally pronounced. For the reasons stated below, we affirm.

¶2 The dispositive issues on appeal are:

¶3 1. Did the District Court err in correcting the written judgment by nunc pro tunc order to conform with its oral pronouncement of sentence at Lane’s sentencing hearing?

¶4 2. Did entry of the nunc pro tunc order to correct Lane’s sentence violate Lane’s rights to due process?

¶5 3. Did entry of the nunc pro tunc order to correct Lane’s sentence constitute double jeopardy?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 James Lane was charged by information in the Thirteenth Judicial District Court, Yellowstone County, with the felony offense of sexual intercourse without consent on March 4, 1994. Lane appeared with counsel and pled guilty to the offense on November 3, 1994.

¶7 On February 15, 1995, Lane appeared with counsel in District Court for his sentencing hearing. After sentencing recommendations from both parties, the District Court stated:

It is the Order and Judgment of this Court that you serve ten years in the Montana State Prison. It will be a Special Order of this Court that you will not be paroled until Sexual Offender Program Phases I and II are completed.
The Court believes in this case [], based on the testing results and the evaluation that has been done, that there appears to be a high risk of reoffending, which you have verified to the Court by your lack of recognition of the seriousness of this offense this morning.
The Court bases this sentence on the psychological evaluation, the pre-sentence report and the special circumstances and nature of this offense.

(Emphasis added.)

¶8 A minute entry filed on February 15, 1995, by the clerk of the District Court regarding Lane’s sentence, provides as follows:

The Court’s sentence is that the defendant be imprisoned for a term of 10 years in the Montana State Prison. It is a further order of the Court, that the defendant not be eligible for parole until after he completes Phases I and II of the Sexual Offender Treatment Program.

¶9 Although the transcript and minute entry from the sentencing unquestionably indicate that the District Court required that Lane complete sexual offender treatment before parole, the written judgment filed on February 21, 1995, provided:

IT IS THE RECOMMENDATION OF THIS COURT that the defendant not be eligible for Parole, pursuant to Section 46-18-202, Montana Code Annotated, until said defendant has completed both Phases I & II of the Sex Offender Treatment Program.

(Emphasis added.)

¶10 A year later, on March 6, 1996, the court entered a nunc pro tunc order regarding Lane’s sentence. The nunc pro tunc order provides, in its entirety:

It appearing to the Court that the Judgment heretofore entered by the Clerk in [Lane’s case] is not a correct memorial of the Judgment as rendered and announced by this Court in the particulars hereinafter set forth, in that through inadvertence and clerical error the Judgment is not a correct memorial as rendered and announced by the Court is hereby corrected to conform to the actual Judgment intended, announced and rendered by the Court:
IT IS ORDERED that JAMES LANE not be eligible for parole until the defendant has successfully enrolled in and completed the Montana Sex Offender Treatment Program, Phases I and II.
In all other respects the Judgment and Order Suspending Sentence entered on the 15th day of February, 1995, shall remain unchanged.

¶11 In April 1996, Lane was scheduled to have parole considered in his case. However, the parole board informed him that he would not be considered for parole. Upon Lane’s request for a reason why he would not be considered for parole, an officer from the parole board told Lane by letter of the District Court’s nunc pro tunc order. Before this, Lane had not received any notice of the nunc pro tunc order.

¶12 On July 18, 1996, the clerk of the District Court filed a notice received from Lane indicating that he was appealing the decision in “State v. Lane, decided Feb. 15th, 1995.” On August 5,1996, the State filed a response to Lane’s notice of appeal, arguing that his appeal was untimely made.

¶13 On September 16, 1996, this Court received Lane’s request for court-appointed counsel to represent him in his appeal. Lane also moved for bond pending appeal. On September 27, 1996, we remanded to the District Court for a ruling on Lane’s motions for appointment of new counsel and for bail pending appeal. We also granted Lane’s request for a continuance for purposes of transmission of the transcript and filing an appeal brief until the State had an opportunity to respond to Lane’s motions and the District Court ruled on said motions.

¶14 Upon receipt of our order, the District Court notified the State and Lane’s trial counsel, the Yellowstone County Public Defender’s office, and asked both to file responses. Both parties filed responses that suggested they were unaware of what Lane was actually appealing. The Public Defender’s office asked the District Court to appoint the State Appellate Defender to represent Lane with his appeal in order to avoid any conflict of interest claim because the office had represented Lane during trial. On November 26, 1996, the District Court appointed the State Appellate Defender to represent Lane and set bail at $50,000 pending appeal.

¶15 On April 3,1997, Lane filed a motion with this Court pursuant to Rule 3, M.R.App.P., to suspend the application of the Rules of Appellate Procedure relative to the time for filing an appeal. Under Rule 5, M.R.App.P., an appeal in a criminal case must be taken in sixty days. Lane sought to appeal the entry of the nunc pro tunc order filed by the District Court more than a year after the court had imposed sentence. However, Lane’s pro se notice of appeal was not filed within sixty days of entry of the nunc pro tunc order. On April 16, 1997, the State filed a response objecting to the appeal on the grounds that this Court lacks jurisdiction where a notice of appeal has not been timely filed.

¶16 On May 1, 1997, we granted Lane’s motion to suspend the sixty-day filing requirement of Rule 5(b), M.R.App.P., and permitted Lane to file a notice of appeal of the District Court’s nunc pro tunc order.

¶17 Lane now appeals, arguing that the District Court, by way of its nunc pro tunc order, erroneously modified his sentence and violated a number of his rights.

ISSUE 1

¶18 Did the District Court err in correcting the written judgment by nunc pro tunc order to conform with its oral pronouncement of sentence at Lane’s sentencing hearing?

¶19 At the sentencing hearing, the District Court clearly imposed a condition of ineligibility for parole until Lane had completed both phases of sexual offender treatment at prison. However, the written judgment made this condition a recommendation. Over a year later, this conflict between the oral pronouncement of sentence and the written judgment was called to the District Court’s attention. By entry of a nunc pro tunc order, the District Court stated that its written judgment was in error and corrected it to conform to the oral pronouncement.

¶20 Lane, relying on precedent established by this Court in State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170, argues that the written version is the final, valid judgment that can not be amended by means of a nunc pro time order. Moreover, Lane contends that the District Court’s amendment of the sentence in the written judgment and commitment constituted double jeopardy and violated his constitutional and statutory rights to be present at any sentencing proceeding and be represented by counsel. Furthermore, Lane argues, the entry of the nunc pro tunc order violated his right to due process.

¶21 The State counters that it is within the District Court’s inherent power to correct an error in the record at any time by entry of a nunc pro tunc order. The State also asserts that the District Court has authority under § 46-18-117, MCA, to correct an erroneous sentence at any time. However, the State, ignoring the precedent established by Enfinger, states that the oral sentence, not the written judgment, controls. The State cites other jurisdictions for this proposition, but fails to offer any reason why this Court should overrule Enfinger and its progeny and hold that the oral pronouncement of sentence should constitute the final, valid judgment.

Oral Pronouncement v. Written Judgment

¶22 We begin by focusing on the conflict that existed between the District Court’s oral pronouncement at the sentencing hearing on February 15, 1995, and the written judgment filed on February 21, 1995. Lane and the State disagree as to what constitutes a final valid, judgment — the terms and conditions as orally announced by the sentencing court, or the final, written judgment filed with the clerk of court.

¶23 In Enfinger, the defendant was convicted of mitigated deliberate homicide at trial. The defendant was sentenced and remanded to the sheriff for delivery to Montana State Prison. Later that same day, the court brought Enfinger back into court for further proceedings because the judge had earlier failed to state his reasons for imposing sentence and it was necessary for him to do so. In the second hearing, the judge designated the defendant a dangerous offender. After the second hearing, a judgment was reduced to writing and filed with the court.

¶24 On appeal, Enfinger argued that the District Court, in designating him a dangerous offender, unconstitutionally subjected him to double jeopardy by enhancing his punishment after the court had sentenced him in a previous proceeding. We noted that the first sentence pronounced by the court, was not reduced to writing, signed by the judge, or filed with the clerk of the court. In rejecting the defendant’s argument, we held that the oral sentence first pronounced by the court was not a valid, final judgment. We relied on and quoted from a New Mexico case that held “[i]t is well established that an oral ruling by the trial court is not a final judgment, and that the trial court can change such ruling at any time before the entry of written judgment.” Enfinger, 222 Mont. at 444, 722 P.2d at 1174 (quoting State v. Diaz (1983), 100 N.M. 524, 673 P.2d 501, 502, cert. denied (1984), 469 U.S. 1016, 105 S. Ct. 429, 83 L. Ed. 2d 356).

¶25 In State v. Wirtala (1988), 231 Mont. 264, 752 P.2d 177, we relied on Enfinger and held that “[t]he oral sentence first pronounced by the District Court did not constitute a final judgment. Atrial court remains free to modify such a ruling until such time as it is reduced to writing, signed by the district judge and filed with the court.” Wirtala, 231 Mont. at 270, 752 P.2d at 181 (citation omitted). See also State v. Mason (1992), 253 Mont. 419, 833 P.2d 1058 (holding that defendant was not placed in double jeopardy when he was later returned to the courtroom on the same day for the trial court to amend its oral pronouncement and designate him as a dangerous offender because the oral judgment was not a final, valid judgment).

¶26 Subsequently, in State v. Graveley (1996), 275 Mont. 519, 915 P.2d 184, we were faced with resolving a conflict between the oral pronouncement at sentencing and the written judgment and commitment. At the hearing, the court sentenced Graveley “to a period of 40 years with the Department of Corrections, the first ten years of that sentence will be placed in a prison environment similar to that of the Montana State Prison.” However, when the court issued its written judgment and commitment, it stated that Graveley was

committed to the Montana Department of Corrections and Human Services for a period of forty years (40) years for placement that may include Montana State Prison ....
It is the recommendation of this Court that defendant Graveley serve a portion of this sentence in a prison environment. The Montana Department of Corrections and Human Services may allow additional good time if it deems appropriate for parole eligibility.

¶27 On appeal, Graveley argued that the written judgment must conform to the oral pronouncement of sentence. He argued that the written judgment had the effect of resentencing him after he had already started serving his sentence and, thus, violated his due process rights and double jeopardy protections. The oral sentence, he argued, was in essence a ten-year sentence with an additional thirty-year sentence 'suspended. The written judgment, however, was for forty years, possibly less at the discretion of the Department of Corrections. The State responded to Graveley’s argument by relying on Enfinger and contending that it was “well established in Montana that an oral pronouncement of judgment is not a final judgment and may be changed at any time prior to entry of a written judgment.”

¶28 In evaluating Graveley’s claim, we noted that the District. Court did not state in its written judgment that the sentence pronounced in open court was either illegal or erroneous and, therefore, could not be corrected pursuant to § 46-18-117, MCA. Rather than basing our decision on Enfinger and holding that the written judgment was final, we held that Graveley was not prejudiced by the court’s written judgment varying from the orally pronounced sentence. Although the court should not have altered the written judgment from its oral pronouncement of sentence, we concluded that the error was harmless.

¶29 The Court’s opinion in Graveley provoked a strongly worded dissent which focused on the conflict between this Court’s approach to the finality of a sentence and the federal position. “To the extent that Enfinger, Wirtala, and Mason hold that a written sentence can alter the terms of an oral sentence which the defendant has already begun to serve, they fundamentally contradict Montana statutory law and federal law regarding the finality of sentences.” Graveley, 275 Mont. at 527, 915 P.2d at 189 (Leaphart, J., dissenting).

¶30 Lane’s case, like Graveley’s, raises an important question regarding the sentencing of criminal defendants. Under Montana law, which sentence — the oral pronouncement or the written judgment and commitment — is the legally effective sentence, controlling for the purpose of finality? A review of both Montana statutory law and federal precedent, leads this Court to conclude that holding the oral pronouncement of sentence to be the legally effective sentence is more consistent with our constitutional and statutory provisions.

¶31 The right of the criminal defendant to be present in the courtroom has its source in the confrontation clause of the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution, which states, in relevant part, “[i]n all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.” The purpose of the right of presence is to: (1) assure defendants the opportunity to observe, in most cases, all stages of the trial “in order to prevent the loss of confidence in courts as instruments of justice which secret trials would engender,” and (2) protect the integrity and reliability of courtroom procedures by guaranteeing the defendant the opportunity to aid in his defense. United States v. Gregorio (4th Cir. 1974), 497 F.2d 1253, 1258-59, cert. denied, (1974), 419 U.S. 1024, 95 S. Ct. 501, 42 L. Ed. 2d 298.

¶32 The following Montana statutes require the defendant’s presence when his sentence is pronounced:

46-16-121. Felony offenses. (1)... the defendant in all cases in which a felony is charged must be present at... sentencing ....
46-16-123. Absence of defendant on receiving verdict or at sentencing....
(2) In all felony cases, the defendant shall appear in person when ... the sentence is imposed unless ....
46-18-115. Sentencing hearing — use of two-way electronic audio-video communication. Before imposing sentence ... the court shall conduct a sentencing hearing, without unreasonable delay, as follows:
(1) The court shall afford the parties an opportunity to be heard on any matter relevant to the disposition, including the applicability of sentencing enhancement provisions, mandatory minimum sentences, persistent felony offender status, or an exception to these matters.
(3) ... the court shall address the defendant personally to ascertain whether the defendant wishes to make a statement and to present any information in mitigation of punishment or reason why the defendant should not be sentenced. If the defendant wishes to make a statement, the court shall afford the defendant a reasonable opportunity to do so. ...
(4) ... (c)... if the victim’s statement includes new material facts upon which the court intends to rely, the court shall allow the defendant adequate opportunity to respond and may continue the sentencing hearing if necessary.
(6) In felony cases, the court shall specifically state all reasons for the sentence, including restrictions, conditions, or enhancements imposed, in open court on the record and in the written judgment.

¶33 These statutes implement the Sixth Amendment and Article II, Section 24, of the Montana Constitution, allowing the defendant to be present and giving him an opportunity to respond before the trial court imposes its sentence. A defendant’s only opportunity to respond is at the sentencing hearing before the sentence is orally pronounced. There is no need for a defendant to be present when the written judgment and commitment is handed down and filed with the clerk of court because, in most cases, the written judgment and commitment mirrors what was orally pronounced as the sentence at the sentencing hearing. However, if the written judgment and commitment conflicts with the oral pronouncement of sentence and is the legally effective sentence, the defendant has then been sentenced in absentia, violating his statutory right to be present pursuant to §§ 46-16-121(1), -123(2), and 46-18-115, MCA. “Our cases holding that an oral sentence can be altered or amended by a subsequent written sentence imposed out of the presence of the defendant, contradict our statutory scheme, are, arguably, unconstitutional and directly oppose the federal authority they purport to invoke.” Graveley, 275 Mont. at 528, 915 P.2d at 190. (Leaphart, J., dissenting),

¶34 In stating that the oral pronouncement is not the final, valid judgment in Enfinger, we relied on United States v. DiFrancesco (1980), 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328, and stated that “[t]he practice in the federal courts seems to support our decision.” Enfinger, 222 Mont. at 445, 722 P.2d at 1175. In DiFrancesco, the United States Supreme Court did state “the established practice in the federal courts [is] that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence.” DiFrancesco, 449 U.S. at 134, 101 S. Ct. at 436, 66 L. Ed. 2d at 344. DiFrancesco held that under certain conditions set forth by statute, the government could appeal the sentence of a convicted defendant without violating the Double Jeopardy Clause of the United States Constitution. In other words, the defendant had no expectation of finality until the time allowed for the government to appeal had expired. However, DiFrancesco did not address whether the oral pronouncement of sentence or the written judgment was the legally effective sentence or which was controlling with regard to the finality of a sentence.

¶35 In fact, the established practice of the federal courts is that the oral pronouncement of sentence is controlling for the purposes of finality. Regarding the finality of sentences, the Ninth Circuit held:

“The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant.” United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). See United States v. Villano, 816 F.2d 1448, 1451-52 & n. 5 (10th Cir. 1987) (en banc). It is the words pronounced by the judge at sentencing, not the words reduced to writing in the judge’s Judgment/Commitment Order, that constitute the legal sentence.

United States v. Bergmann (9th Cir. 1988), 836 F.2d 1220, 1221.

¶36 The Ninth Circuit recognized the importance of protecting the rights of a criminal defendant during sentencing against double jeopardy. In Munoz-Dela Rosa, the Ninth Circuit emphasized that the oral pronouncement of a sentence must control, even if contrary to the trial judge’s intent:

All acknowledge that judges are human and may misstate their intention at the time of sentencing. The instant case presents very strong evidentiary support for a holding that the district judge did in fact ‘misspeak’ himself at the time Appellant was sentenced. Yet ... the interests of justice, in the light of constitutional double jeopardy protections and the defendant’s right to be present at the time of sentencing ... and to speak on his own behalf ... require strict adherence to the axiom that an unambiguous oral pronouncement of a legal sentence must control.

United States v. Munoz-Dela Rosa (9th Cir. 1974), 495 F.2d 253, 256.

¶37 In United States v. Villano (10th Cir. 1987), 816 F.2d 1448, a judgment and commitment order, signed the same day as the sentencing proceeding, was different from the oral pronouncement of sentence. Three years later, the defendant moved to correct the clerical mistake, arguing that the oral sentence pronounced by the judge should control over the commitment order. The Tenth Circuit held that the legally effective sentence is the oral pronouncement and that the written judgment and commitment is mere evidence of the oral sentence. Villano, 816 F.2d at 1452. The true function of the written judgment is to help clarify an ambiguous oral sentence by providing evidence of what was stated at sentencing. Villano, 816 F.2d at 1452. Villano clearly sets forth the practice followed by the federal courts.

¶38 Under the federal rules, the Tenth Circuit stated that a change to make the written judgment rather than the oral sentence final

would endanger the right to be present at sentencing. Fed.R.Crim.P. 43(a) mandates that “[t]he defendant shall be present... at the imposition of sentence. ...” Rule 43 has its source in the confrontation clause of the sixth amendment and the due process clause of the fifth and fourteenth amendments. Although it is not an absolute right... it is fundamental to the entire law of criminal procedure. A defendant is present only when being sentenced from the bench. Thus, a defendant is sentenced in absentia when the judgment and commitment order is allowed to control when there is a conflict.
The imposition of punishment in a criminal case affects the most fundamental human rights: life and liberty. Sentencing should be conducted with the judge and defendant facing one another and not in secret. It is incumbent upon a sentencing judge to choose his words carefully so that the defendant is aware of his sentence when he leaves the courtroom.

Villano, 816 F.2d 1452-53 (citations omitted).

¶39 Furthermore, a substantial number of the federal circuit courts and state supreme courts subscribe to the principle that when a conflict exists between a court’s unambiguous oral pronouncement of sentence and a written judgment, the oral pronouncement, as correctly reported, must control. For example, the Ninth Circuit has repeatedly held that the oral pronouncement, as correctly reported, controls over the written judgment if the two conflict. See United States v. Garcia (9th Cir. 1994), 37 F.3d 1359, 1368, cert. denied (1995), 514 U.S. 1067, 115 S. Ct. 1699, 131 L. Ed. 2d 562; United States v. Hicks (9th Cir. 1993), 997 F.2d 594, 597; Munoz-Dela Rosa, 495 F.2d at 256.

¶40 After review of our statutory sentencing framework and mindful of the constitutional protections afforded criminal defendants, we now hold that the sentence orally pronounced from the bench in the presence of the defendant is the legally effective sentence and valid, final judgment. Accordingly, the written judgment and commitment will serve as evidence of the sentence orally pronounced. Adopting this interpretation is more consistent with Montana’s constitutional and statutory provisions that allow for a defendant to be present at sentencing and be afforded an opportunity to respond at sentencing.

¶41 Consequently, State v. Enfinger, 222 Mont. 438, 722 P.2d 1170, State v. Mason, 253 Mont. 419, 833 P.2d 1058, State v. Wirtala, 231 Mont. 264, 752 P.2d 177, State v. Graveley, 275 Mont. 519, 915 P.2d 184, and any other Montana case that has held that the written judgment and commitment is the valid, final judgment or legally effective sentence, rather than the oral pronouncement of sentence in the presence of the defendant, are hereby overruled to that extent.

Nunc Pro Tunc Order

¶42 We now turn to the case at bar. Lane argues that the District Court erred in entering the nunc pro tunc order correcting the written judgment and commitment to conform to the oral pronouncement of sentence.

¶43 At the sentencing hearing on February 15, 1995, Lane appeared and was represented by counsel. Both Lane’s counsel and an attorney representing the State made sentencing recommendations to the District Court. Lane addressed the District Court before his counsel made a sentencing recommendation. After hearing both sides present their sentencing recommendations but before pronouncing sentence, the District Court addressed Lane:

THE COURT: James Lane, do you have any further cause to show why judgment should not be pronounced at this time?
[LANE’S COUNSEL]: We do not, Judge.
THE COURT: It is the Order and Judgment of this court that you serve ten years in the Montana State Prison. It will be a Special Order of this court that you will not be paroled until Sexual Offender Program Phases I and II are completed.

¶44 However, when the written judgment and commitment was filed, the requirement that Lane complete Phases I and II of the Sexual Offender Treatment Program before he would become eligible for parole was recorded only as a recommendation by the District Court. When the District Court was informed of this discrepancy, it corrected the written judgment and commitment to conform to its oral pronouncement at the sentencing hearing by means of a nunc pro tunc order. The District Court stated that the mistake was made “through inadvertence and clerical error.” The entry of the nunc pro tunc order was to conform the written judgment and commitment “to the actual Judgment intended, announced and rendered by the [District] Court” at Lane’s sentencing hearing.

¶45 A nunc pro tunc order is a district court order made now of something which was actually done previously to have effect as of the former date. Black’s Law Dictionary 1069 (6th ed. 1990). Judgments or records of district courts may be modified or amended by the entry of nunc pro tunc orders or amended judgments to remedy certain clerical errors. State ex rel. Kruletz v. District Court (1940), 110 Mont. 36, 39-40, 98 P.2d 883, 885. “Every court has the inherent right to correct clerical errors.” Dahlman v. District Court, Seventeenth Judicial Dist. (1985), 215 Mont. 470, 474, 698 P.2d 423, 425. While a District Court may correct clerical errors to make the record speak the truth as to what was actually decided, “[t]he error must be apparent on the face of the record to insure that the correction does not in effect set aside a judgment actually rendered nor change what was originally intended.” State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474.

¶46 Furthermore, outside of a court’s inherent authority to correct clerical errors, a district court may modify or correct a sentence pursuant to § 46-18-117, MCA. When a valid sentence has been pronounced, the court imposing that sentence has no jurisdiction to modify or change it, except as provided by statute. State v. Fertterer (1993), 260 Mont. 397, 860 P.2d 151. The only statutory provision that allows a court to modify a sentence is provided at § 46-18-117, MCA, which states:

Correction of sentence. The court may correct an erroneous sentence or disposition at any time and may correct a sentence imposed in an illegal manner within 120 days after the sentence is imposed or after remand from an appellate court.

¶47 Section 46-18-117, MCA, is based upon Rule 35 of the Federal Rules of Criminal Procedure. The federal rule has been recognized as providing “the appropriate remedy to make the judgment and commitment papers conform to the sentence pronounced orally.” 3 Wright, Federal Practice and Procedure § 611, at p. 527 (1982).

¶48 The District Court’s written judgment and commitment clearly conflicted with the oral pronouncement because it only recommended rather than required that Lane complete both Phases I and II of the Sexual Offender Treatment Program before he would be eligible for parole. As discussed above, this Court now concludes that the oral pronouncement of sentence is the legally effective sentence and that the written judgment and commitment serves as evidence of the sentence orally pronounced. Also, we conclude that in the event of a conflict between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement controls. In the event of a conflict, we conclude that a district court may correct an error in a written judgment and commitment by a nunc pro tunc order to accurately reflect what had been orally pronounced at the sentencing hearing pursuant to § 46-18-117, MCA.

¶49 In the present case, the record affirmatively demonstrates that Lane was to remain ineligible for parole until he had completed both Phases I and II of Sexual Offender Treatment Program at the prison. The written judgment and commitment contained a clerical error causing it to conflict with the sentence the District Court orally pronounced at the hearing. Although the District Court did not cite § 46-18-117, MCA, in its nunc pro tunc order, the statute provides authority for the correction. Therefore, the correction of the clerical error was an appropriate nunc pro tunc entry and we find no error.

ISSUE 2

¶50 Did entry of the nunc pro tunc order to correct Lane’s sentence violate Lane’s rights to due process?

¶51 Lane argues that the correction of his sentence by the nunc pro tunc order violates the Due Process Clause of the United States Constitution, and Article II, Section 17, of the Montana Constitution. Both provide that no person shall be denied liberty without due process of the law. Lane contends that his eligibility for parole was delayed by the entry of the nunc pro tunc order. He contends that it is fundamentally unfair for the written judgment and commitment to be enhanced more than thirteen months after he had began serving his sentence.

¶52 Lane’s argument is based upon dicta in Breest v. Helgemoe (1st Cir. 1978), 579 F.2d 95, cert. denied (1978), 439 U.S. 933, 99 S. Ct. 327, 58 L. Ed. 2d 329, which provided:

[T]he power of a sentencing court to correct even a statutorily invalid sentence must be subject to some temporal limit. When a prisoner first commences to serve his sentence, especially if it involves a long prison term as here, the prospect of release on parole or otherwise may seem but a dimly perceived, largely unreal hope. As the months and years pass, however, the date of that prospect must assume a real and psychologically critical importance. ... After a substantial period of time, therefore, it might be fundamentally unfair, and thus violative of due process for a court to alter even an illegal sentence in a way which frustrates a prisoner’s expectations by postponing his parole eligibility or release date far beyond that originally set.

Breest, 579 F.2d at 101.

¶53 However, the First Circuit has clarified Breest by limiting due process violations to cases where the prisoner’s expectations of being released have been realized and the correction of the sentence results in a tangible detriment or concrete injury. Lerner v. Gill (1st Cir. 1985), 751 F.2d 450, 459, cert. denied (1985), 472 U.S. 1010, 105 S. Ct. 2709, 86 L. Ed .2d 724; Littlefield v. Caton (1st Cir. 1988), 856 F.2d 344, 348. In Littlefield, the First Circuit held that the revocation of illegally awarded “good time credits” which had accrued over a period of nine years did not violate the due process rights of a prisoner who had not yet been released, noting: Littlefield, 856 F.2d. at 348 (quoting Lerner, 751 F.2d at 459). In both Littlefield and Lerner, the First Circuit was influenced by the fact that, although the correction of the sentences left the prisoners with dashed hopes, they were essentially “no worse off than... had the error not been made.” Littlefield, 856 F.2d at 349; Lerner, 751 F.2d at 459.

[W]e have made clear that misdirection of this sort must ‘involve [ ] prejudice and harm beyond frustrated expectations’ to be constitutionally redressable. The mere passage of time — even, as here, the passage of many years — does not per se import the existence of such prejudice and harm. Something more — something specific, some concrete injury — must be shown.

¶54 Although we have concluded that Lane’s written judgment and commitment was in error because it did not conform to the oral pronouncement of sentence, we next evaluate Lane’s due process claim to determine if Lane had acquired a vested interest in an erroneous sentence. We recognize that there must be some time limit after which the State cannot reopen a matter after a final decision and substantial lapse in time. In the present case, however, we conclude that the entry of the nunc pro tunc order correcting Lane’s sentence was neither fundamentally unfair nor unfair because Lane had gained an indefeasible expectation of finality. Furthermore, Lane is unable to establish a concrete injury or prejudice as a result of the nunc pro time order. The parole board may very well have followed the judge’s recommendation provided in the written order and required Lane to complete the sexual offender programs before considering his parole eligibility. The District Court inadvertently erred in stating in the written judgment and commitment that it was a recommendation rather than a requirement that Lane complete Phases I and II of the Sexual Offender Treatment Program before he would be eligible for parole. The record contains no hint of any improper motive on the part of the District Court in issuing the nunc pro tunc order. We also note that Lane was still in prison when he learned of the nunc pro tunc order. Therefore, we find no due process violation here.

ISSUE 3

¶55 Did entry of the nunc pro tunc order to correct Lane’s sentence constitute double jeopardy?

¶56 When a district court corrects a written judgment and commitment to conform to the one it originally intended, double jeopardy does not apply to bar the correction. Owens, 230 Mont. at 137, 748 P.2d at 474. As discussed above, we now conclude that the oral pronouncement of sentence is the legally effective sentence. In Lane’s case, the entry of the nunc pro tunc order served to correct the written judgment and commitment to conform to the oral pronouncement of sentence. Therefore, we find no double jeopardy here.

¶57 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART and HUNT concur.

JUSTICE NELSON

specially concurs.

¶58 I concur in the result and in the analysis of our opinion. I write separately only to suggest that, in my view, there are ramifications flowing from our decision that may wind up being traps for the unwary prosecutor, defendant and sentencing judge. While these observations are properly not included in the majority opinion and are admittedly dicta, nonetheless, I believe that an ounce of prevention is worth a pound of cure, and I offer these observations in that context for whatever worth they may have.

¶59 First, in criminal cases an appeal from a judgment must, generally, be taken within 60 days. Rule 5(b), M.R.App.P. “ ‘Judgment’ means an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.” Section 46-1-202(10), MCA (emphasis added). “ ‘Sentence’ means the judicial disposition of a criminal proceeding upon a plea, verdict, or finding of guilty.” Section 46-1-202(24), MCA. Given our decision in the case at bar that “the sentence orally pronounced from the bench in the presence of the defendant is the legally effective sentence and valid, final judgment,” it is my view that the time for filing the notice of appeal in a criminal case will now run from the oral pronouncement of sentence and not from the entry of the written judgment and sentence. Defense counsel or a defendant who delays in filing a notice of appeal on the assumption that the appeal time does not start to run until the written judgment is issued by the court and filed may well find an otherwise meritorious appeal time-barred.

¶60 In this regard, I note that the last sentence of § 46-18-116, MCA, states that “[t]he judgment must be signed and entered on the record.” While this statute requires that at some point the defendant’s guilt or innocence, the adjudication, and the disposition of his or her case be reduced to a writing which is signed and filed of record, there is nothing in this statute, again in my view, that would affect the finality of the controlling oral pronouncement of the judgment and sentence for purposes of appeal.

¶61 Second, it should also be obvious that to the extent that the written judgment differs from the oral pronouncement of sentence, the defendant will likely have good grounds for appeal. I suggest that judges are going to have to be especially careful to specifically articulate on the record each and every aspect, term, requirement and condition of the sentence intended. Imposing “stock” or “standard” conditions and requirements by reference to some other document, standing order or customary practice or leaving to the prosecutor the task of inserting those in the written judgment, may be a risky practice, indeed.

¶62 Third, in those jurisdictions where the county attorney or deputy drafts the written judgment following the sentencing hearing, the prosecutor is, likewise, going to have to be extremely careful to incorporate in the written judgment only those terms, requirements and conditions orally imposed and actually pronounced by the court. Adding “stock” or “standard” conditions that the court usually imposes but may not, in all instances, specifically articulate, will likely be grounds for appeal.

¶63 Fourth, it seems to me that in order to best avoid this risk of variance between the sentence orally pronounced and the written judgment, the sentencing judge should simply hear the evidence and take under advisement the recommendations of the prosecution and defense at the sentencing hearing, but not pronounce sentence at that time. Once the written judgment is drafted in accordance with the sentencing court’s wishes, the defendant can then be brought back into open court with counsel, and the judge can simply pronounce sentence by reading the entirety of the written judgment and sentence.

¶64 Finally, it should be obvious to both defendants and prosecutors that, under the law as presently written and our decision in the case at bar, if the oral pronouncement of sentence is not correct or is incomplete, the time for dealing with the error is at the time the sentence is orally pronounced and while the defendant is in open court. Attempting to “fix” the error later in the written judgment will no longer work.

JUSTICE GRAY concurs in the foregoing special concurrence.

JUSTICE TRIEWEILER

dissenting.

¶65 I dissent from the majority opinion. I would reverse the order of the District Court which substantively amended its written judgment nearly thirteen months after James Lane began serving his sentence. Lane was not given notice of the amendment before it was entered or after it was entered, and first learned of it when he was advised of its effect by the parole board. New practices could more clearly offend traditional notions of due process and the prohibition against double jeopardy.

¶66 We have repeatedly, and for good reason, held that the written judgment is the final judgment in criminal proceedings which establishes the terms of a defendant’s sentence and that an oral sentence is not a final judgment. In State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170, we held that:

The first sentence pronounced by the court, which omitted the dangerous offender designation, was not reduced to writing, signed by the judge, or filed with the court. Thus, that sentence was not a final judgment. “It is well established that an oral ruling by the trial court is not a final judgment, and that the trial court can change such ruling at any time before the entry of written judgment.” State v. Diaz (1983), 100 N.M. 524, 673 P.2d 501, 502. This Court has never explicitly adopted the Diaz rule but we implicitly stated the same rule in Wilkinson v. State (Mont. 1983), [205 Mont. 237,] 667 P.2d 413, 40 St.Rep. 1239. In Wilkinson we stated:
“[o]nce a valid sentence is imposed, the court lacks jurisdiction to vacate or modify it unless specifically authorized by statute.” (Citations omitted.)
"... there is no way for the judge to change his decision, after the filing of the judgment.” (Emphasis added.)
667 P.2d at 414. The oral sentence first pronounced by the lower court was not a final, valid judgment. Thus, that sentence did not subject appellant to a first “jeopardy.” There was no “former” jeopardy under the first oral sentence because it was not final. Therefore, there can be no double jeopardy. Petition of Williams (1965), 145 Mont. 45, 399 P.2d 732.

Enfinger, 222 Mont. at 444-45, 722 P.2d at 1174.

¶67 We followed Enfinger in State v. Wirtala (1988), 231 Mont. 264, 270, 752 P.2d 177, 181, and State v. Mason (1992), 253 Mont. 419, 425, 833 P.2d 1058, 1061. We ignored those decisions and misstated the rule regarding oral versus written judgments in State v. Graveley (1996), 275 Mont. 519, 524, 915 P.2d 184, 187. To the extent that Graveley is inconsistent with the three prior cases, I would overrule Graveley.

¶68 However, it makes no sense to overrule our repeated precedent in order to save the oral judgment of the District Court in this case. A rule which elevates an oral statement of the district court over a judgment which is reduced to writing, signed by the judge, and filed with the clerk of court is fraught with the potential for human error and, as sure as night follows day, will lead to endless appeals.

¶69 The modern criminal sentence is a complex matter. Part of it may be deferred or suspended based on numerous conditions; there may be a mandatory minimum sentence or exceptions to the mandatory minimum sentence; and the court may be required to determine that the defendant is a persistent felony offender or that the sentence should be enhanced for some other reason, such as the use of a weapon or the danger the defendant presents to the community. All of these considerations are more likely to be made accurately and reliably after the sentencing judge has had an opportunity to reflect on them and reduce his or her thoughts to writing with the assistance of counsel for the parties. Our cases, in fact, document that a district court’s oral sentence is frequently not the sentence that was intended. In Enftnger, the district court forgot to orally designate the defendant a dangerous offender. See Enfinger, 222 Mont. at 444, 722 P.2d at 1174. In Wirtala, the district court forgot to orally declare the defendant ineligible for parole during a portion of his sentence. See Wirtala, 231 Mont. at 269, 752 P.2d at 180. In Mason, the district court overlooked the condition of sexual offender and alcohol treatment programs as part of its oral sentence. See Mason, 253 Mont. at 425, 833 P.2d at 1061. Since judges are human, we are likely to see a further series of similar human errors in the future based on today’s change of course by the majority.

¶70 The majority bases its decision to elevate an oral sentence over a written sentence on the statutory and constitutional right of a defendant to be present at the time he or she is sentenced. There is no explanation, however, in the majority opinion of why a defendant cannot be present when a written sentence is imposed. In fact, the concurring opinion of Justice Nelson, with which a majority apparently concurs, suggests this very practice. While concurring that the Sixth Amendment and our statutes require a defendant’s presence at the time of sentencing and, therefore, that the oral sentence be final, Justice Nelson then suggests, in order to avoid the “risky practice” of issuing oral sentences as they have been issued in the past, that the sentencing judge hear the evidence and arguments of counsel, but not pronounce sentence at the time of the sentencing hearing, and instead wait until a written judgment is drafted. He suggests that the defendant then be brought back into open court and that the judge pronounce the sentence by reading the entirety of the written judgment and sentence. How is that process any different as a practical matter than retaining our current rule regarding the finality of a written sentence, but requiring a defendant be present when the written sentence is entered? In effect, the majority has held, in order to affirm what the District Court did in this case, that contrary to our prior decisions, the oral sentence of the district court is final, rather than the written sentence, because a defendant has to be present at the time of sentencing; but, since the oral sentence is inherently unreliable, that the district court should wait until his or her thoughts can be reduced to writing and then bring the defendant back into court so that the oral sentence can actually be read from the functional equivalent of a written judgment. If there is some thread of logic to this new approach, as expanded on in the concurring opinion, I have to admit that it has been lost on me.

¶71 Because I conclude that the better reasoned rule elevates the written sentence over the oral sentence of the District Court, and further conclude that the District Court’s March 6, 1996, order substantively altered and enhanced its February 21, 1995, sentence and judgment nearly thirteen months after the defendant had begun serving his sentence, I also conclude, pursuant to our prior case law, that the District Court was without jurisdiction to enter its March 6 order and, therefore, that it was of no effect. See, e.g., State v. Fertterer (1993), 260 Mont. 397, 860 P.2d 151. While I realize that § 46-18-117, MCA, upon which Fertterer was partially based, has been amended since then and that the amended form is applicable in this case, I would conclude that if that statute allows the kind of substantive amendment to enhance a sentence thirteen months after the defendant has begun serving his sentence, then it violates the constitutional prohibitions against double jeopardy found in the Fifth Amendment to the United States Constitution, and Article II, Section 25, of the Montana Constitution. In United States v. Fogel (D.C. Cir. 1987), 829 F.2d 77, the circuit court gave the following explanation with which I fully concur:

The primary purpose of the [double jeopardy] clause is to protect the finality of judgments. United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978); Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978). One of the interests protected by constitutional finality is that of the defendant to be free from being compelled to “live in a continuing state of anxiety and insecurity.” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). The clause applies to “multiple punishment” because, if it did not apply to punishment, then the prohibition against “multiple trials” would be meaningless; a court could achieve the same result as a second trial by simply resentencing a defendant after he has served all or part of an initial sentence. See Ex parte Lange, 85 U.S. (18 Wall.) at 175, [21 L.Ed. 872]. Similarly, if a court can increase a defendant’s sentence after service has begun, for any reason, or for no reason at all, then the interest in protecting a defendant from being compelled to live in a continuing state of anxiety is lost. This anxiety would seem to be the same as, or akin to, that which would follow from the knowledge that a defendant can be tried again. In each case the underlying fear is that the defendant will receive punishment in addition to that which he had already received. See Ex parte Lange, 85 U.S. (18 Wall.) at 173 (“It is the punishment that would legally follow the second conviction which is the real danger guarded against.”). It would seem to follow that a defendant has, barring any awareness to the contrary, an expectation of finality in the severity of a sentence that is protected by the double jeopardy clause.

Fogel, 829 F.2d at 88.

¶72 For these reasons, I dissent from the majority opinion.

      . See also United States v. Roberts (7th Cir. 1991), 933 F.2d 517, 519 n.1 (“[g]enerally the transcript of the sentencing proceeding takes precedence over the judgment order.”); United States v. Weir (8th Cir.1984), 724 F.2d 94, 95 (per curiam), (“the oral sentence and not the written order constitutes the actual judgment of the court ....”); United States v. Lewis (D.C.Cir.1980), 626 F.2d 940, 953 (“[the] oral sentence constitutes the judgment of the court and is the authority for the execution of the court’s sentence. The written judgment is mere evidence of such authority.”); United States v. Marquez (2d Cir.1974) 506 F.2d 620, 622 (“the written judgment and commitment being nothing more than mere evidence of the sentence imposed orally by the judge.”)

      . United States v. Chasmer (3rd Cir. 1991) 952 F.2d 50, 52, cert. denied (1992), 503 U.S. 997, 112 S. Ct. 1703, 118 L. Ed. 2d 412 ("we will follow the firmly established and settled principle of federal criminal law that an orally pronounced sentence controls over a judgment and commitment order when the two conflict"); United States v. Khoury (11th Cir. 1990), 901 F.2d 975, 977 (”[w]here there is a discrepancy between the orally imposed sentence and the written order of judgment and committal, the oral sentence controls"); United States v. Makres (7th Cir. 1988), 851 F.2d 1016, 1017 ("[t]he oral sentence prevails over a conflicting written sentencing order...."); Johnson v. Mabry (8th Cir. 1979) 602 F.2d 167, 170 ("oral sentence pronounced by the sentencing judge constitutes the judgment, and anything inconsistent with the judgment which is included in a commitment order is a nullity."); United States v. Kindrick (5th Cir. 1978), 576 F.2d 675, 677 ("any variance between the oral and written versions of the same sentence will be resolved in favor of the oral sentence."); United States v. Marquez (2d Cir. 1974), 506 F.2d 620.

      . Whittlesey v. State (Alaska 1981), 626 P.2d 1066, 1068 ("the written judgment should conform to the oral sentence. The latter ordinarily controls."); State v. Hutchinson (Me. 1991), 593 A.2d 666, 667 ("[wjhere a discrepancy exists between the oral pronouncement of sentence and the written judgment and commitment, it has long been the law that the oral pronouncement of sentence controls ...."); Sampson v. State (N.D. 1993), 506 N.W. 722, 726-27 ("[i]f there is a direct conflict between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement controls ...."); State v. O’Rourke (R.I. 1983), 463 A.2d 1328, 1332 ("[g]enerally when a discrepancy exists between an unambiguous oral pronouncement and a written judgment, the oral pronouncement will control."); State v. Ford, (S.D. 1982), 328 N.W.2d 263; State v. Perry (Wis. 1987), 401 N.W.2d 748, 758 ("where a conflict exists between a court’s oral pronouncement of sentence and a written judgment, the oral pronouncement controls."); Christensen v. State (Wyo. 1993), 854 P.2d 675. But see Temple v. State (Miss. 1996), 671 So. 2d 58, 59 ("in order for a sentence to be valid, a judgment must be entered as of record.”); State v. Dailey (Wash. 1980) 610 P.2d 357, 360 ('[t]he written decision of a trial court is considered the court’s ‘ultimate understanding’ of the issue presented.")