IN THE SUPREME COURT OF THE STATE OF MONTAWA
No. 84-104
EARL TAYLOR,
Petitioner,
HENRY RISLEY,
Respondent.
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ORDER AND OPINION
CLEHil OF SrJPr:LkfPI, COiJRT
STATE OF hididi','t?;A
PER CURIAM:
The State has filed herein a motion for clarification
and declaratory relief regarding this Court's order of May
31, 1984 denying petitioner Earl Taylor's application for a
writ of habeas corpus. The State seeks prospective
a-pplication only of that part of the order which purportedly
establishes a new rule for computation of parole eli.gibility
for offenders serving consecutive sentences.
The petitioner has filed a response, also seeking
clarification and declaratory relief, but contending the
order is erroneous and should. have no application,
retroactive or prospective.
This Court has examined the motion and the response, as
well as the order of May 31, 1984.
The petitioner was sentenced in the Cascade County
District Court to twenty years for the crime of robbery, and
five years for the crime of second degree assault, to be
served. consecutively. In 1975, petitioner pled guilty to the
crime of escape and received an additional three year
sentence, to he served corisecutively to the previous
sentences.
In 1977, the petitioner was paroled on all three
offenses. While on parole, he was convicted of burglary and
theft in the State of Missouri and after serving prison time
there, was returned to the Montana State Prison in December
1981. At that time, the petitioner's parole was revoked and
324 days of good time allowances earned by him while on
parole were likewise revoked.
In the order and opinion of May 31, 1.984 denying
petitioner's applica.tion for a writ of habeas corpus, this
Court stated:
"The action - - Board of Pardons purporting to
of the
release +~etitioner on ~ a r o l e from all three
- I - -
consecutive sentences - - -is illegal.. All the
was and
time served, whether in prison or on parole,
applies only against the twenty-year sentence for
robbery, and petitioner has never begun serving his
sentence for second degree assault or escape."
The underscored language of the order, beginning "The action
of the Board . . .", and concluding ". . . was and is
illegal.", is an incorrect statement of the law. The action
of the Board of Pardons in pa.roling the petitioner on al.1
three offenses was correct under the long-standing rule of
State ex.re1. Herman and Roy v. Powell (1961), 159 Mont 5831,
"Nowhere in the Act is it suggested that an inmate
confined with multiple sentences, whether
concurrent or consecutive, is ineligible for
parole. On the contrary, section 94-9333 (now
section 46-23-201, MCA), clearly indicates that
such an inmate is eligible for parole:
"A prisoner having served one-fourth (1/4) of his
term or terms, less good time allowances, shall
upon parole, be deemed as released on parole until
the expiration of the maximum term or terms for
which he was sentenced less good time allowances as
provided in section 80-740. (Emphasis added.)
"The Board could, in order to avoid any ambiguity
or confusion in the case of consecutive sentences,
issue one parole to cover the maximum period of
confinement. The result, of course, would be the
same. That is, the prisoner would be required to
serve a period equivalent to one-fourth of the
combined total of each sentence (less good time)
before he would be eligible for parole. And, the
fact that rel-ators' subsequent sentences are escape
sentences in no way affects this result."
The order of this Court on May 31, 1984 was not intended to
change this rule of computing parole eligiblity for offenders
serving consecutive sentences.
IT IS ORDERED:
1. The language on page 2 of this Court's May 31,
1984 order, "The action of the Board of Pardons purporting to
release petitioner on parole from al.1 three consecutive
sentences was and is illegal," is hereby ordered stricken.
The remainder of that order remains intact.
2. The parole eligibility of offenders serving
consecutive sentences shall continue to be computed under the
rule of Herman, supra.
3. The Clerk is directed to mail a true copy hereof to
petitioner personally, to the Attorney General and to the
County Attorney of Cascade County, Montana.
A &
dD
DATED this 2- day of
- &, 1984
4
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Acting Chief Justice
Justices