author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    GERRY WILLIAMS, Plaintiff and Appellant, v. ZORTMAN MINING, INC., Defendant and Respondent.
    No. 95-442.
    Submitted on Briefs February 22, 1996.
    Decided April 15, 1996.
    53 St.Rep. 289.
    275 Mont. 510.
    914 P.2d 971.

      For Appellant: John F. Lynch; Lynch & Chisholm, Great Falls.
    For Respondent: Thomas E. Hattersley, III, David C. Dalthorp; Gough, Shanahan, Johnson & Waterman, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Gerry Williams appeals from the order of the Seventeenth Judicial District Court, Phillips County, granting Zortman Mining, Inc.’s motion to dismiss for failure to state a claim upon which relief can be granted, based upon the running of the statute of limitations. We affirm.

We consider the following dispositive issue on appeal:

Does the “savings statute,” § 27-2-407, MCA, apply to save Williams’ claim from being barred by the statute of limitations?

Gerry Williams (Williams) was employed by Zortman Mining, Inc. (Zortman), a wholly-owned subsidiary of Pegasus Gold Corporation, from 1978 until 1991. In 1991, Williams resigned his position rather than agree to a transfer to a position which amounted to a demotion. Thereafter, on January 8, 1992, Williams filed a charge of discrimination with the Montana Human Rights Commission (HRC) alleging that he had been unlawfully discriminated against because of his Native American origin and in retaliation for his complaints over the lack of Native American hiring by Zortman and his participation in a sexual discrimination suit brought by a female co-worker. At the request of Zortman, the HRC issued a right to sue letter on March 23, 1993. An amended right to sue letter was issued on March 29, 1993.

On June 18,1993, Williams filed his complaint in the United States District Court for the District of Montana, Billings Division, against “Pegasus Gold Corp., a Nevada Corporation, d/b/a Zortman Mining, Inc.” The court dismissed Williams’ complaint on November 3,1993. The court noted that Williams was attempting to manipulate the diversity jurisdiction of the federal court in naming the foreign parent corporation, Pegasus, and not the Montana subsidiary, Zortman. Zortman was incorporated in the State of Montana, and naming Zortman as a party would have defeated diversity jurisdiction under 28 U.S.C. § 1332. With respect to the named party, Pegasus, the federal court determined that Williams had not exhausted his administrative remedies against that entity. Accordingly, the court granted Pegasus’ motion to dismiss because of Williams’ failure to exhaust his administrative remedies.

On November 9, 1993, after the 90-day period to file in district court following the issuance of the right to sue letter, Williams filed his complaint in state district court naming Zortman as the only defendant. See § 49-2-509, MCA. On January 10, 1994 Zortman moved to dismiss Williams’ complaint for failure to state a claim upon which relief can be granted or, alternatively, for judgment on the pleadings, based on the statute of limitations. On September 1,1995, the District Court granted Zortman’s motion to dismiss. Williams appeals from this determination.

The issue of whether the district court properly applied the statute of limitations and granted a Rule 12(b)(6), M.R.Civ.P. motion to dismiss presents a question of law. Hollister v. Forsythe (1995), 271 Mont. 91, 93, 889 P.2d 1205, 1206. This Court reviews issues of law to determine whether the district court’s application or interpretation of the law is correct. Hollister, 889 P.2d at 1206 (citing McGregor v. Madsen (1992), 253 Mont. 210, 212, 832 P.2d 779, 780). In reviewing a district court’s dismissal for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), M.R.Civ.P, we will construe the complaint in the light most favorable to the plaintiff and take the allegátions of the complaint as true. Smith v. Video Lottery Consultants (1993), 260 Mont. 54, 57, 858 P.2d 11, 12 (citing Willson v. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182). The dismissal will be affirmed only if this Court finds that the plaintiff is not entitled to relief under any set of facts which could be proven in support of the claim. Smith, 858 P.2d at 12.

The District Court noted that “[t]he federal district court action named Pegasus, the parent corporation, ‘d/b/a Zortman Mining Co.,’ as Defendant, but did not name Zortman as a distinct corporate entity.” Further, the District Court stated that Williams did not file his state court complaint within 90 days of receiving the right to sue letter from the HRC, rather, Williams filed his complaint in federal district court. Williams contends that this filing satisfied § 49-2-509(2), MCA, and that the “savings statute,” § 27-2-407, MCA, gives him one year to refile his complaint following dismissal in federal court. The “savings statute,” § 27-2-407, MCA, provides:

If an action is commenced within the time limited therefor and a judgment therein is reversed on appeal without awarding a new trial or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff or, if he dies and the cause of action survives, his representative may commence a new action for the same cause after the expiration of the time so limited and within 1 year after such a reversal or termination.

The District Court aptly noted that “Plaintiff’s argument missed one critical point — that is, the action filed by Plaintiff in federal district court is against a different party. The sole defendant in the federal action was Pegasus, which is not a party to this action.” In interpreting a “savings statute” similar to Montana’s, the Tennessee Court of Appeals determined that:

The savings statute applies only when the new complaint and the original complaint “are substantially for the same cause of action.” ... There must be an identity of the parties in order for the new and original complaints to be substantially the same. ...
[The court determined that plaintiff’s] second complaint in state court is not substantially similar to his original state complaint because it involved different parties. The savings statute is not applicable to the claims in a renewed complaint against a party not named as a defendant in the original complaint. [Citations omitted.]

Turner v. Aldor Co. of Nashville, Inc. (Tenn. Ct. App. 1991), 827 S.W.2d 318, 321 (emphasis added) (interpreting Tenn. Code Ann. § 28-l-105(a)). We find the reasoning of the Tennessee Court of Appeals to be persuasive and agree that the “savings statute” does not apply to save or “renew” a complaint against a party not named in the original complaint.

Similarly, in McCoy Enterprises v. Vaughn (Ga. Ct. App. 1980), 268 S.E.2d 764, 765, the Georgia Court of Appeals discussed a situation where, as here, the plaintiff knowingly named the wrong party in the original complaint. The McCoy court stated that even though the corporate defendant likely had actual notice because of the first suit, the second suit should have been dismissed because the corporation had not been named as a party in the first suit. The court concluded that “since appellant corporation was never a party to the original suit, [respondent] cannot maintain a ‘renewal’ action against it in light of the intervening statute of limitation.” McCoy, 268 S.E.2d. at 765.

In the instant case, the District Court noted that Zortman and Pegasus were separate legal entities and stated that:

The only way for Plaintiff to prevail in his argument is to show that Zortman is the alter ego of Pegasus; that is, to show that the two entities should be treated as the same. Plaintiff does not make any such allegations in his complaint and has not made any other showing of such evidence, by affidavit or otherwise, to this Court.

Although Williams named “Pegasus Gold Corp., a Nevada Corporation, d/b/a Zortman Mining, Inc.” in the federal suit, that does not suffice for purposes of the “savings statute.” Zortman is not merely a d/b/a for Pegasus. Rather, Zortman is a separate legal entity. Williams cannot have the best of both worlds; ignoring Zortman as a separate legal entity for purposes of diversity jurisdiction and then, after dismissal in federal court, expecting the Montana state courts to acknowledge the “d/b/a” label as sufficient designation of the proper entity for purposes of the “savings statute.”

This Court has held that the “savings statute” is to be applied in cases where an action has been commenced and, without plaintiff’s fault, there has been a failure to reach a determination of the merits and the statute of limitations has run during the pendency of such action. Tietjen v. Heberlein (1918), 54 Mont. 486, 488, 171 P. 928, 928.

Here, the District Court noted that “Plaintiff had every opportunity to bring a discrimination claim against Zortman in the proper forum within the statutory period.” With respect to Williams’ filing in federal court, the court stated “it appears that Plaintiff attempted to manipulate the jurisdiction of the federal court by only suing Pegasus ... and Plaintiff cannot now be said to be without fault in omitting Zortman as a defendant in the federal claim.” We agree with the District Court’s conclusion, citing § 49-2-509(5), MCA, that:

As Plaintiff chose not to include Zortman [a separate legal entity] as a party in the federal action, that action does not trigger the “savings” statute. Without the Montana “savings” statute, the statute of limitations under Section 49-[2]-509(5), M.C.A. clearly applies.

Accordingly, the District Court concluded that § 49-2-509(5), MCA, operated to bar Williams’ state court complaint because it had not been filed within the 90-day period. We determine that the District Court correctly concluded that Williams’ claim was not saved by § 27-2-407, MCA, because Zortman was not a party to the first suit. Accordingly, the statute of limitations set forth in § 49-2-509(5), MCA, operated to bar Williams’ claim.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and ERDMANN concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority’s result can only be accomplished by grafting judicially-created elements onto Montana’s saving statute which are not present in the statute itself. In the process, the majority’s result is accomplished in total disregard of the purpose of the saving statute and the merits of the plaintiff’s claim.

Montana’s saving statute, found at § 27-2-407, MCA, provides in relevant part that:

If an action is commenced within the time limited therefor and ... the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action for the same cause after the expiration of the time so limited and within 1 year after such a ... termination.

(Emphasis added.)

Contrary to the discussion in the ancient case of Tietjen v. Heberlein (1918), 54 Mont. 486, 488, 171 P. 928, 928, there is no provision in the “saving statute” which renders the statute inapplicable if the original federal action is dismissed based on some subjective notion of the plaintiff’s “fault.” Neither is there any language in the saving statute which would make it inapplicable where the parties are not identical. The statute will not save a subsequent state court action where three, and only three, circumstances exist: (1) voluntary dismissal by the plaintiff, (2) dismissal for failure to prosecute by the plaintiff, and (3) final judgment on the merits. None of those circumstances exists in this case.

Furthermore, it is incorrect that in any substantive sense the party that Williams sued in federal court was different than the party subsequently sued in state court. The difference between suing Pegasus Gold Corp., d/b/a Zortman Mining, Inc., and suing Zortman Mining, Inc., as a wholly-owned subsidiary of Pegasus Gold Corporation, is a difference that exists on paper only. The nature of the relationship between the two corporations was correctly alleged in substance, notice to one corporation was effectively notice to the other, and the effect of allowing the subsequent state action to proceed after amending the form in which the defendant was named would have been no different than allowing amendments in state court to relate back to the date of the original action under Rule 15(c), M.R.Civ.P.

If Williams had sued Pegasus Gold Corp., d/b/a Zortman Mining, Inc., in state court within ninety days after the Montana Human Rights Commission issued its notice of right to sue and had amended his complaint to correctly identify the defendant as simply Zortman Mining, Inc., more than ninety days after the notice of right to sue, his amendment would have related back to the date of the original cause of action and would not have been subject to dismissal based on the statute of limitations. Rule 15(c) provides in relevant part that:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

In Berlin v. Boedecker (1994), 268 Mont. 444, 887 P.2d 1180, we allowed an action to proceed against a corporate defendant, even though the complaint was not amended to name the corporate defendant until seven and one-half years after the actions complained of. We held that because a principal in the corporation had been named in the original suit which had been filed prior to expiration of the statute of limitations, the corporate defendant had notice of the plaintiff’s allegations in a timely fashion and was not prejudiced by being named as a party by later amendment.

In this case, all the requirements of Rule 15(c) were satisfied. Zortman Mining, Inc., had notice of the action against Pegasus Gold in federal court; it knew that Zortman was the proper party; and no prejudice can be shown to Zortman by now having to defend the case on its merits.

Because an amendment changing the identity of the parties would have been allowed in state court had the action originally been filed against Pegasus Gold in state court, no different result should occur in this situation in light of the saving statute. The purpose of the saving statute is to allow actions which are filed on time in federal court to proceed in district court after dismissal in federal court, except for limited circumstances which are not present in this case. The fact that the form by which the defendant was identified in federal court was not identical to the form by which the defendant is identified in the state court action is not one of those circumstances which precludes application of the statute. Any reading of the two complaints requires the conclusion that they are the same cause of action.

Furthermore, I conclude that the majority’s reliance on decisions from intermediate courts of appeal in Tennessee and Georgia is misplaced. In Turner v. Aldor Co. of Nashville (Tenn. Ct. App. 1991), 827 S.W.2d 318, the plaintiff was injured by an overhead garage door and originally sued the distributor for the door. That action was voluntarily dismissed and later, after the statute of limitations had run, a second action was brought against the manufacturer of the door. There is no indication in that decision that the distributor and manufacturer were in any way related, or that the manufacturer had been mentioned as a party in the plaintiff’s original complaint in any form. Furthermore, although the exact text of Tennessee’s saving statute is not set forth in the opinion, we can conclude that it is not identical to Montana’s, or the mere fact that the plaintiff’s original complaint had been dismissed voluntarily would have precluded its application. In this case, Zortman was identified in the caption of Williams’ federal court complaint. The claim in the subsequent state court action was identical, and Williams’ federal court claim was not voluntarily dismissed.

In McCoy Enterprises v. Vaughn (Ga. Ct. App. 1980), 268 S.E.2d 764, the plaintiff’s original cause of action was dismissed voluntarily more than two years after it had been filed and after the trial of the claim had commenced. A second cause of action was filed nearly four and one-half years after the negligent act complained of had occurred and a new defendant was named. The applicable statute of limitations was two years. Significantly, both actions were filed in state court and the Georgia Court of Appeals held that the plaintiff could have availed himself of the opportunity to rename the party defendant by amendment of his pleading, but had chosen not to do so. Instead, he voluntarily dismissed his first cause of action. Most significantly, Georgia’s saving statute, which is interpreted in that decision, requires that a second suit, in order to be saved, be “against a person from whom relief was prayed in the first suit.” McCoy, 268 S.E.2d at 765. No similar requirement is found in Montana’s saving statute. Therefore, the Georgia decision is completely inapplicable to the facts and the rule we have been asked to interpret in this case.

In addition to being an incorrect and unjustified application of the plain language found in Montana’s saving statute, the reasoning of the District Court, which has been affirmed and adopted by this Court, is completely inappropriate. The approach of the trial court and the majority seems to be that since the plaintiff’s attorney tried to satisfy jurisdictional requirements for federal court by the manner in which he identified the defendants in his federal complaint, he did something wrong and therefore, cannot avail himself of the plain provisions of Montana’s saving statute.

First, based on the record before us, it is impossible to conclude that the plaintiff’s attorney did anything wrong. There may have been good reason to believe that Pegasus was simply the alter-ego of Zortman. Lawyers often file complaints assuming one set of facts can be established and subsequently learn otherwise. Second, the application of Montana’s saving statute has nothing to do with “fault” and the majority’s interjection of its notions of propriety has no place in its application of that statute.

For these reasons, I would reverse the order of the District Court and allow the plaintiff’s claim to proceed to a resolution based on its merits.

JUSTICE HUNT joins ih the foregoing dissenting opinion.

      . We note that the District Court’s order mistakenly cites § 49-2-509(5), MCA, as § 49-5-509(5), MCA. The statute of limitations relied on by the District Court appears in § 49-2-509(5), MCA and Title 49 does not include Chapter 5.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES A. GRAVELEY, Defendant and Appellant.
    No. 95-295.
    Submitted on Briefs February 1, 1996.
    Decided April 5, 1996.
    53 St.Rep. 239.
    275 Mont. 519.
    915 P.2d 184.

      For Appellant: Gregory A. Jackson, Jackson & Rice, Helena; J. C. Weingartner, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Elizabeth L. Griffing, Assistant Attorney General, Helena; Mike McGrath, County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Charles A. Graveley pled guilty to the offense of solicitation to commit deliberate homicide, in violation of §§ 45-4-101 and 45-5-102, MCA, in the First Judicial District Court, Lewis and Clark County. Graveley appeals from the District Court’s sentence. We affirm.

We find the following issues dispositive on appeal:

1. Did the District Court err in issuing a written judgment which was inconsistent with its prior oral pronouncement of sentence?

2. Did the District Court err in not applying the exceptions to the mandatory minimum sentence?

Graveley was charged by information with solicitation to commit deliberate homicide in connection with his attempt to hire another person to murder his former girlfriend. Pursuant to a plea agreement with the Lewis and Clark County Attorney, Graveley pled guilty to the charge. In signing the plea agreement, Graveley acknowledged that he could be sentenced to serve from ten years to one hundred years in prison.

At the sentencing hearing, Graveley presented evidence which he argued supported imposition of less than the mandatory minimum sentence often years. Pursuant to § 46-18-222, MCA(1993), Graveley argued that exceptions exist by which the District Court should have sentenced him to less than the mandatory minimum sentence. Section 46-18-222, MCA (1993), reads, in part:

All mandatory minimum sentences prescribed by the laws of this state and the restrictions on deferred imposition and suspended execution of sentence prescribed by 46-18-201(4) through (6), 46-18-221(3), 46-18-224, and 46-18-502(3) do not apply if:
(2) the defendant’s mental capacity, at the time of the commission of the offense for which the defendant is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution. However, a voluntarily induced intoxicated or drugged condition may not be considered an impairment for the purposes of this section.
(5) in a case in which the threat of bodily injury or actual infliction of bodily injury is an actual element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense ....

Graveley argues that he satisfied the above elements of § 46-18-222, MCA (1993), and was therefore eligible for a more lenient sentence. The District Court found no grounds to apply the exception to the mandatory minimum sentence and sentenced Graveley to the custody of the Montana Department of Corrections and Human Services for forty years. Graveley appeals his sentence.

District courts have broad discretion in sentencing criminal defendants. It is not the role of this Court to review sentences for inequity; rather, this Court will only review a sentence to determine whether the district court abused its discretion. State v. DeSalvo (1995), 273 Mont. 343, 903 P.2d 202, 204.

Issue 1

Did the District Court err in issuing a written judgment which was inconsistent with its prior oral pronouncement of sentence?

On December 20, 1994, the District Court held a sentencing hearing. At the close of the hearing, the court pronounced its sentence orally to defendant Graveley. In sentencing Graveley, the court stated:

I sentence you 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. The Department of Corrections has the authority to then place you in a suitable environment.

On January 25, 1995, the court issued its written judgment and commitment, which stated:

[T]he defendant is committed to the Montana Department of Corrections and Human Services for a period of forty (40) years for placement that may include Montana State Prison or other suitable corrections placement. ...
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.

Graveley’s primary argument is that the court did not include in its written judgment and commitment the provision that he must serve at least ten years of the forty-year sentence in a prison environment. While Graveley points to several other discrepancies between the oral and written sentences, these variances appear to be primarily a matter of semantics, and Graveley does not demonstrate how these minor differences prejudice him.

Graveley argues that the court’s oral sentence was in essence a ten-year sentence with an additional thirty years suspended. The written judgment, on the other hand, was for forty years, any lesser term of incarceration is subject to the discretion of the Department of Corrections.

Section 46-18-102, MCA (1993), provides that:

(1) The judgment shall be rendered in open court.
(3)(a) If the verdict or finding is guilty, sentence shall be pronounced and judgment rendered within a reasonable time.
(b) When the sentence is pronounced, the judge shall clearly state for the record his reasons for imposing the sentence.

Pursuant to this section, the District Court pronounced Graveley’s sentence in open court on December 20, 1994, and issued its written judgment on January 25, 1995. However, the sentence provided for in the judgment varied from the sentence pronounced in open court.

Section 46-18-117, MCA (1993), states:

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.

In the present case, the District Court did not propose in its written judgment that the sentence pronounced in open court was either illegal or erroneous. Absent a finding that a sentence is either erroneous or illegal, a district court may not alter a sentence. In State v. Fertterer (1993), 260 Mont. 397, 860 P.2d 151, we determined that

[o]nce a valid sentence has been pronounced, the court imposing that sentence has no jurisdiction to modify it, except as provided by statute. [Citations omitted.] The only statutory authority allowing a court to modify a sentence is provided at § 46-18-117, MCA

Fertterer, 860 P.2d at 154.

In this case, however, Graveley was not prejudiced by the court’s written judgment varying from its orally pronounced sentence. A review of the court’s oral pronouncement indicates that the oral sentence was for forty years, with at least ten to be served in a prison environment. The dissent is in error in concluding that Graveley could not have been held in prison for more than ten years pursuant to the oral pronouncement of sentence. While the court may have anticipated that the Department of Corrections would parole Graveley after ten years, any parole or participation in a supervised release program was left solely in the discretion of the Department. A clear reading of the oral pronouncement reveals that it constituted a forty-year sentence, of which Graveley was to spend at least ten years in a prison environment.

The written judgment and commitment was also a forty-year sentence. However, the written judgment did not include the mandate that Graveley serve at least ten years in a prison environment. As such, under the written judgment, Graveley is eligible for parole or participation in a supervised release program prior to serving ten years in prison. The Department of Corrections has the discretion to parole Graveley before he serves the ten years mandated in the oral pronouncement.

This Court has long held that we will disregard any error, defect or irregularity in the proceedings which does not affect the substantial rights of the defendant. Section 46-20-701(2), MCA, (1993); State v. Wing (1994), 264 Mont. 215, 870 P.2d 1368. In this case, while the court incorrectly varied its written judgment from its oral pronouncement of sentence, the error was harmless in that the latter sentence was in fact more lenient than the former.

We conclude that while the District Court should not have altered the written judgment from its oral pronouncement of sentence, the variance in this case was harmless error.

Issue 2

Did the District Court err in not applying the exceptions to the mandatory minimum sentence?

Graveley argues that the court should have considered the exceptions to the mandatory minimum sentence. Section 46-18-222, MCA (1993), provides that a district court may sentence a criminal defendant to less than the statutory mandatory minimum sentence under certain circumstances. Graveley maintains that extenuating circumstances exist in his case which warrant the application of § 46-18-222, MCA. He argues that § 46-18-222(2) and (5), MCA, apply to the facts of this case. These subsections provide exceptions to the mandatory minimum sentence when the defendant’s mental capacity is significantly impaired or when the victim of the crime did not suffer actual bodily injury. However, we need not address the merits of Graveley’s argument because the exceptions found in § 46-18-222, MCA, apply only when the district court gives the statutory minimum sentence.

In State v. Nichols (1986), 222 Mont. 71, 720 P.2d 1157, the defendant argued that he met the exceptions set forth in § 46-18-222, MCA, and the court therefore erred in not applying this section. We held, however, that

[s]ection 46-18-222, MCA, does not apply in this case. Judge Davis did not pronounce a minimum sentence. Section 46-18-222, MCA, does not apply in cases where the maximum sentence is imposed. A careful reading of the statute and this Court’s holding in State v. Stroud (1984), [210 Mont. 58], 683 P.2d 459, 469, 41 St.Rep. 919, 931, indicates that the purpose of the statute is to allow a judge who would otherwise have to pronounce the minimum sentence, to sentence a defendant to less than the minimum sentence when the exceptions apply to the facts.

Nichols, 720 P.2d at 1164. A review of the District Court’s oral pronouncement and written judgment indicates that the court was not predisposed to sentence Graveley to the ten-year statutory minimum. Contrary to Graveley’s argument, the court’s oral pronouncement did not amount to a ten-year sentence with thirty years suspended. Rather, 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. The Department of Corrections has the authority to then place you in a suitable environment.

The written judgment reiterated that this was to be a forty year sentence, without the mandate that Graveley serve at least ten of these years in a prison environment.

We conclude that the District Court did not sentence Graveley to the mandatory minimum sentence, and, therefore, the exceptions to the mandatory minimum sentence do not apply to this case. We hold that the court did not abuse its discretion in sentencing Graveley. We affirm the decision of the District Court.

JUSTICES ERDMANN, NELSON and TRIEWEILER concur.

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s holdings in both issues; first, regarding the exceptions to the mandatory minimum sentence and, second, that the District Court’s alteration of the oral sentence was harmless error. The Court concludes that the question as to the applicability of exceptions to the mandatory minimum sentence only comes into play if the District Court, in fact, imposes the mandatory minimum sentence. See § 46-18-222, MCA. The Court then reasons that since the District Court imposed a 40-year sentence, rather than the minimum 10 years, there is no need to discuss the exceptions to the mandatory minimum sentence. The Court ignores the fact that, pursuant to § 46-18-223, MCA, the sentencing judge “considered the exception to the mandatory minimum in this case and I find that they do not apply for the following reasons.” Clearly the District Court was considering the mandatory minimum when it orally sentenced Graveley. If, as this Court holds, the judge was not predisposed to consider the mandatory minimum, one wonders why did the District Court engage in a discussion of why the exceptions to the mandatory minimum sentence did not apply? It makes little sense to consider exceptions to the mandatory minimum sentence if the mandatory minimum is not itself a consideration.

Additionally, why did the District Court, after finding that the exceptions to the 10-year minimum sentence did not apply, then proceed to sentence Graveley to 40 years “the first 10 years of that sentence will be placed in a prison environment. ...” It was not pure coincidence that the court’s sentence of 10 years in a prison environment happens to be the same as the mandatory minimum of 10 years. The District Court’s discussion of the exceptions coupled with the imposition of 10 years in a prison environment suggests to me that the judge, although rejecting the exceptions to the mandatory minimum sentence, was intending to impose the mandatory minimum sentence of 10 years in prison with 30 years under the Department of Corrections.

Secondly, when Graveley began serving the sentence on December 20, 1994, jeopardy attached and the District Court was without jurisdiction to alter or amend that sentence by a subsequent written judgment unless the sentence was illegal or erroneous. See § 46-18-117, MCA. The Court, in holding that the District Court’s alteration of the oral sentence was harmless error, begs the crucial question of when, under Montana law, jeopardy attaches during sentencing. This Court has held that an oral sentence not reduced to writing, signed by the judge, or filed with the court is not a final judgment. State v. Enfinger (1986), 222 Mont. 438, 444, 722 P.2d 1170, 1174. In Enfinger, this Court 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, 722 P.2d at 1174 (quoting State v. Diaz (N.M. 1983), 673 P.2d 501, 502, cert. denied, 469 U.S. 1016; 105 S.Ct. 429, 83 L.Ed.2d 356). Montana is the only state that has cited Diaz. In State v. Wirtala (1988), 231 Mont. 264, 270, 752 P.2d 177, 181, we relied on Enfinger and held:

It is self evident that a person cannot begin to serve a sentence which does not yet exist. The oral sentence first pronounced by the District Court did not constitute final judgment. ... A trial court remains free to modify such a ruling until such time as it is reduce to writing, signed by the district judge and filed with the court.

State v. Mason also relied on and quoted from Enfinger’s holding in concluding that “[t]he oral sentence pronounced by the District Court was not a final or valid judgment. We hold that appellant was not placed in double jeopardy because the original oral judgment was not final.” State v. Mason (1992), 253 Mont. 419, 425, 833 P.2d 1058, 1062.

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. The following Montana statutes require the defendant’s presence when his or her 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. 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. [Emphasis added.]

The statutes are clear, when the court imposes a sentence on a defendant, the defendant must be present and must be given an opportunity to respond. 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.

To bolster its holding in Enfinger that the oral sentence is not final, the Court noted “[t]he practice in the federal courts seems to support our decision.” 722 P.2d at 1175. The Court then quoted United States v. DiFrancesco (1980), 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328, 344, for the following proposition:

the established practice in the federal courts that the sentencing judge may recall the defendant and increase his sentence, at least ... so long as he has not yet begun to serve that sentence. [Emphasis added.]

Enfinger, 722 P.2d at 1175.

In the present context, the principles of DiFrancesco do not support a change of sentence through a subsequent written judgment. Here, the sentencing court did not “recall” the defendant for further sentencing. Rather, it altered the original sentence by issuing a written sentence in the defendant’s absence. Secondly, Graveley, having been in jail for some 30 days after the oral sentence, had clearly begun to serve the sentence by the time the written sentence was signed and filed.

Our holding that the written sentence rather than the oral sentence is final, directly contradicts the federal position regarding the finality of sentences. In United States v. Bergmann (9th Cir. 1988), 836 F.2d 1220, 1221, 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.

Similarly, in Munoz-Dela Rosa, the Ninth Circuit held:

In cases where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment, this Court has uniformly held that the oral pronouncement, as correctly reported, must control. ... All acknowledge that judges are human and may misstate their intention at the time of sentencing.... 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 (Rule 43, Federal Rules of Criminal Procedure), and to speak on his own behalf (Rule 32(a) (1), Federal Rules of Criminal Procedure), require strict adherence to the axiom that an unambiguous oral pronouncement of a legal sentence must control.

495 F.2d at 256. More recently, in United States v. Garcia (9th Cir. 1994), 37 F.3d 1359, 1368, cert. denied, 115 S.Ct. 1699, 131 L.Ed.2d 562, the Ninth Circuit again held:

An oral sentence which leaves uncertainty as to the amount of time to be served is ambiguous but not so ambiguous as to be illegal.... Garcia’s oral sentence is ambiguous as to the time to be served before becoming eligible for parole, but it is not illegal.
Where the oral pronouncement of a defendant’s sentence is unambiguous, but differs from the written sentence, the oral sentence controls. ... In contrast, the written sentence will control where there are ambiguities in the oral pronouncement of the sentence, and the writing resolves the ambiguity. [Citations omitted; emphasis added.]

The Tenth Circuit explains the rationale for the finality of the oral sentence in United States v. Villano (10th Cir. 1987), 816 F.2d 1448, 1452-53.

Changing the rule as suggested [undermining the finality of the oral sentence] also 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. [Emphasis added.]

Consequently, there is a basic conflict between this Court’s approach to the finality of a sentence and the federal position. It is striking that Enfinger purported to be in agreement with the federal decisions when, in fact, it is just the opposite. The federal position is constitutionally sound and is consistent with Montana’s statutory scheme. Like the federal statutes, Montana’s statutes provide that a felony defendant must be present at sentencing and must be afforded an opportunity to speak at sentencing (see §§ 46-16-121; 46-16-123; 46-18-115, MCA, as quoted above). Our cases, holding that the “trial court remains free to modify [an oral] ruling until such time as it is reduced to writing, signed by the district judge and filed with the court,” belie this important principle. Wirtala, 752 P.2d at 181.

Ironically, the holding in Wirtala that, “a person cannot begin to serve a sentence which does not yet exist,” is contradicted by the holding of this case. Wirtala, 752 P.2d at 181. Graveley was in prison for more than 30 days before the written sentence was filed. He had clearly begun to serve his orally imposed sentence. In holding that Graveleyk sentence was not final until it was reduced to writing on January 25,1995, the Court has ruled, paradoxically, that Graveley, on December 20, 1994, began to serve a sentence which did not yet exist.

In sentencing cases, the general federal rule established by the U.S. Supreme Court’s decision in DiFrancesco, is that jeopardy attaches once a defendant has a legitimate expectation of the finality of the sentence. DiFrancesco, 449 U.S. at 137, 101 S.Ct. at 437. A legitimate expectation of finality is established when the prosecution’s period for appealing the sentence expires. Most cases turn on statutory provisions providing the State with an opportunity to appeal a specific type of sentence. See, e.g., Hicks v. Duckworth (7th Cir. 1991), 922 F.2d 409, 411 (the defendant could not have an expectation of finality when beginning to serve his sentence under circumstances where the government had a clear statutory right to appeal); United States v. Smith (10th Cir. 1991), 929 F.2d 1453, 1457, cert. denied, 502 U.S. 847, 112 S.Ct. 146, 116 L.Ed.2d 112, (Smith had no legitimate expectation in the finality of his original sentence since that sentence was appealable by the government under a statutory provision and the time to appeal had not expired when he was resentenced).

In the instant case, there is no applicable statute granting the State the right to appeal Graveley’s sentence. Since Graveley had begun to serve his orally imposed sentence the court had no jurisdiction to modify it, except as provided by statute. State v. Fertterer (1993), 260 Mont. 397, 400-401, 860 P.2d 151, 154 (citing In re Petition of Arledge (1988), 232 Mont. 450, 451, 756 P.2d 1169, 1170). The only statutory authority allowing a court to modify a sentence is provided in § 46-18-117, MCA. Fertterer, 860 P.2d at 154. Section 46-18-117, MCA, provides:

46-18-117. 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.

Graveley’s oral sentence was neither ambiguous, erroneous, nor illegal. The oral sentence was:

I sentence you 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. The Department of Corrections has the authority to then place you in a suitable environment.

Thus, Graveley “had no reason to believe that the district court could, on its own motion and without explanation, increase the length of his sentence.” United States v. Fogel (D.C. Cir. 1987), 829 F.2d 77, 89. “Unless a statute or rule extends the sentencing process further, the limit imposed by double jeopardy analysis is coterminous with the limit of the court’s original sentencing authority — stopping the sentencing court’s power ‘at the jailhouse door.’ ” United States v. Earley (10th Cir. 1987), 816 F.2d 1428, 1434. The State had no statutory grounds to appeal this particular sentence, consequently Graveley could legitimately expect it to be final. Under these circumstances, once Graveley walked through the prison door, jeopardy attached and the District Court had no jurisdiction to modify Graveley’s sentence. The Court reasons that since the Department of Corrections has more leeway under the written 40-year sentence to release Graveley in less than 10 years, any error in entering the written sentence is harmless. Since that same latitude allows the Department to hold Graveley in a prison environment for more than 10 years, I do not agree that the error is harmless.