04/13/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0167

DA 20-0167

STATE OF MONTANA, Plaintiff and Appellee, v. ORDER 1:i MICHAEL ROBERT STUTZMAN, 1 h._ 160 Defendant and Appellant.

APR 1 3 2021 Bowen Greenwood Clerk of Supreme Cour State of Montana Appellant Michael Robert Stutzman ("Stutzman") appeals the Thirteenth Judicial District Court's January 28, 2020 Judgment designating him as a Level 2 sexual offender upon his conviction of Failure to Register as a Sexual Offender. The court sentenced Stutzman to five years at the Montana State Prison ("MSP") with no time suspended and imposed a series of conditions as "suggestions or recornmendations" "for any period of community supervision." They include Condition 38, which provides that "[the] court shall designate the Defendant as a Level 2 sexual offender." Condition 38 cites to § 46-23-509, MCA. Stutzrnan argues that a court can attach a tier level designation only to a defendant convicted of a "sexual offense" as defined in Mont. Code Ann. § 46-23-502(9). Because Failure to Register as a Sexual Offender is not a "sexual offense,"the tier level designation is illegal and must be stricken.

The State has filed a notice of concession. Without agreeing with the argurnents advanced by Stutzman, it agrees that the case should be remanded to the District Court to strike the Level 2 designation in Stutzman's Judgment. The State points out that amending the judgment will not affect Stutzman's designation as a tier II offender as part of his underlying sexual assault conviction.

Based on Stutzrnan's opening brief and the State's concession, and good cause appearing, IT IS HEREBY ORDERED that the January 28,2020 Judgment is REVERSED and remanded with instructions for the District Court to strike Condition 38 and enter an amended judgment.

As Stutzman raises no other issues on appeal, IT IS FURTHER ORDERED that Stutzman's appeal is dismissed with prejudice.

The Clerk is directed to provide copies ofthis Order to all counsel ofrecord and to the Honorable Gregory R. Todd, presiding District Court Judge. , •-f• Dated this ( day of April, 2021.

Chief Justice

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Justices