Confessed marijuana grower Daniel E. Collins gets to keep his withheld judgment, and he can smoke marijuana while on probation, as long as he does it somewhere that it's legal.
Such was the ruling Monday by Judge Robert J. Elgee following arguments in 5th District Court on a motion filed by the Blaine County Prosecuting Attorney's Office questioning Collins' sentence, imposed by Elgee last month.
Elgee acknowledged nonetheless that he erred earlier by not making legally required findings in granting Collins a withheld judgment, a provision that allows a conviction to be removed from a defendant's record upon successful completion of probation. Elgee made the findings Monday and ruled that Collins deserved a withheld judgment anyway.
Collins, serving the third week of a 21-day jail sentence, was brought into court in orange jail attire with arms and legs bound with cuffs and chains. He carefully shuffled to and from the defendant's table, looking tired and less alert than at earlier court hearings.
Collins, 65, is a Vietnam War veteran who claims he smokes marijuana to relieve pain from a back injury he received while serving aboard the USS America aircraft carrier. The case against him arose in September when the Blaine County Narcotics Enforcement Team raided his home at Hulen Meadows north of Ketchum and seized a half dozen marijuana plants, three of them still growing and the others drying or ready for smoking.
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Originally charged with felony manufacture of a controlled substance, Collins pleaded guilty in May to a lesser charge of felony possession of marijuana. At sentencing on June 21, Elgee gave Collins the jail sentence and withheld judgment and placed him on probation for three years. One of the terms of probation is that Collins not use illegal drugs.
Collins moved from the Ketchum area after his arrest and is now living in Las Vegas, Nev., where he says he has a temporary permit for medicinal use of marijuana.
The prosecutor's "motion to clarify sentence" was filed a few days after sentencing. In the motion, Deputy Prosecuting Attorney Matt Fredback wrote that Elgee had failed to address findings as legally required in granting Collins the withheld judgment. Specifically, Fredback wrote that the law requires that a defendant have no prior felony convictions and cooperated with police and that a judge have an "abiding conviction that a defendant will successfully complete probation."
Elgee said in court that he was "grateful to the state for pointing that out." In making the findings, Elgee determined that Collins has no prior felony convictions, that no evidence has been presented that he didn't cooperate with police and that Collins will likely abide by the terms of probation as long as he doesn't smoke marijuana where it's illegal.
"I would say he's led a law-abiding life for most of it," Elgee said. "If he moves to a state that allows medical marijuana use, I wouldn't have any doubt at all that he was abiding by the terms of probation."
Terry Smith: tsmith@mtexpress.com
Daniel E. Collins
