No. 12481
IN THE SUPREME COURT OF THE STATE OF MONTANA
1973
STATE ex rel. DANIEL J. BOVEE,
Relator,
vs.
THE DISTRICT COURT OF THE SIXTH
JUDICIAL DISTRICT, et al.
Respondents .
ORIGINAL PROCEEDING
Counsel of Record:
For Relator:
Joseph T, Swindlehurst argued, Livingston,Montana
For Respondents:
Jack Yardley, Livingston, Montana
Robert L. Woodahl, Attorney General, Helena, Montana
J C. Weingartner, Assistant Attorney General, argued,
.
Helena, Montana,
Submitted: April 2, 1973
Decided :
Wk I - 7073
Filed : 1%
PER CURIIPM:
This is an application for a writ of mandate to compel
the district court to credit petitioner with four months pre-
viously served in the state prison as a condition of deferment
of sentence, against the sentence subsequently imposed following
revocation of the deferment.
The facts are undisputed. Relator entered a plea of
guilty to the crime of possession of dangerous drugs in the
district court of Park County. On April 27, 1972, the district
court deferred imposition of sentence on condition that relator
serve four months in the state prison at Deer Lodge, Pursuant
thereto, relator served four months in the state prison.
Following relator's release from prison, the district
court on January 10, 1973, revoked relator's deferred imposition
of sentence and sentenced him to a term of five years imprisonment
in the state prisan. The district court gave relator credit for
forty days confinement in the county jail prior to sentencing,
but refused to credit him with the four months he had previously
served in the state prison as a condition of the original defer-
ment of sentence.
Relator has filed a petition for writ of mandate as an
original proceeding in this Court contending that section 95-2215,
R,C.M. 1947, requires that he be credited with the four months
previously served as a condition of deferment against the five
year sentence subsequently imposed. Following issuance of an
order to show cause, an adversary hearing was held.
Section 95-2215(a), R . C . M , 1947, provides in pertinent
part:
"Any person incarcerated on a bailable offense and
against whom a judgment of imprisonment is rendered
shall be allowed credit for each day of incarceration
prior to or after conviction * * *. '
Accordingly, relator argues, he is entitled to credit for the
four months previously served as a condition of deferment,
The state, on the other hand, contends that serving a
period of time in the county jail or state prison as a condition
of deferment of sentence cannot be considered a judgment of im-
prisonment within the meaning of the statute, or a term of im-
prisonment in any sense. It is simply a condition of deferment
and nothing else, according to the state, The state cites State
ex rel. Woodbury v, District Court, 159 Mont. 128, 495 P,2d 1119,
29 St,Rep. 250, and In re Petition of Williams, 145 Mont. 45, 399
P.2d 732, in support.
The state's contention misses the mark, Woodbury involved
the validity of imposing a thirty day jail sentence as a condition
of deferment of sentence, an issue not involved in the instant
case, Williams involved the power of the district court to sub-
sequently sentence a defendant to a term in the state prison
following revocation of a suspended sentence involving jail based
probation, likewise not an issue in this case.
The sole issue in this case is whether the prison time
previously served by relator as a condition of deferment must be
credited against the prison term subsequently imposed. Relator
was clearly "incarcerated on a bailable offense" under the statute
when he served four months in the state prison as a condition of
deferment of sentence on a plea of guilty to the crime of posses-
sion of dangerous drugs. A "judgment of imprisonment" was sub-
sequently imposed against him following revocation of deferment,
Accordingly, he "shall be allowed credit for each day of incar-
ceration prior to or after conviction" pursuant to the statute.
It is foreign to the issue in the instant case vhether the four
months served in the state prison is considered "a term of im-
prisonment" or "a judgment of imprisonment" for purposes of de-
termining its validity as in Woodbury or in determining the validity
of the prison term subsequently imposed as in Williams; it is
nonetheless "incarceration on a bailable offense" under section
95-2215 (a), R , C . M . 1947, entitling relator to credit therefor
against the prison sentence subsequently imposed.
Let an appropriate writ issue forthwith directing the
district court to credit the four months served by relator in
the state prison in 1972 against the sentence imposed on January
19, 1973,