NO. 8 6 - 3 4 5
IN THE SUPREME COURT OF THR STATP OF MONTANA
1986
STATE O F MONTANA,
Plaint5 ff and Respondent,
-vs-
GERALD ALAN GEORGE,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Ponorable Henry Loble , Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Rdmund F. Sheehy, Jr., Helena,
Montana
For Respondent t
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
M i k e McGrath, County Attorney, Helena, Montana
-
Submitted on Briefs: Sept. 25, 1 9 8 6
Decided: December 30, 1986
Filed: DEC 3 0 1986
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
This is the second time George's case has come before
this Court. See State v. George (Mont. 1986), 711 P.2d 1379,
43 St.Rep. 26. Briefly recounted, on December 9, 1984,
George was stopped by Helena police for driving erratically.
George was also driving without a valid license and had! no
proof of insurance. On May 6, 1985, George was convicted by
jury in the First Judicial District, Lewis and Clark County,
of driving after having been adjudged an habitual traffic
offender. On July 15, 1985, George was sentenced to one year
imprisonment in the county jail. George failed to make a
timely appeal of his sentence. However, George did appeal
his conviction. FJe affirmed the conviction on Janu~ry 7 ,
1986.
When George was convicted of driving after having been
adjudged an habitual traffic offender, he was also on a
deferred sentence for criminal mischief. Because of his
habitual offender conviction, his deferred. sentence was
revoked and George was sentenced to five years in prison with
three suspended.
On March 15, 1986, George moved to amend judgment to
allow the two sentences to run concurrently, pursuant to
5 46-18-401, MCA, and to credit the time served in the county
jail to his prison term. The Lewis and Clark County District
Court denied the motion on May 14, 1986. George appeals the
denial.
We affirm the District Court.
Defendant George raises a single issue for our review:
Did the District Court abuse its discretion when it denied
George's motion to amend -judgment?
George admits that he is an habitual traffic offender.
He also admits that the District Court was justified in
sentencing him to a year in the county jail, but requests
that his habitual offender sentence run concurrently with his
criminal mischief sentence. In Dahlman v. District Court
(Mont. 19851, 698 P.2d 423, 425, 42 St.Rep. 550, 552, we held
that a trial judge has no jurisdiction to vacate or modify a
defendant's sentence after a valid sentence had been imposed,
unless specifically authorized by statute.
George argues that S 46-18-401, MCA, specifically
authorizes modification of his sentence. However, George
also admits that the statute gives a sentencing judge the
discretion to not merge a new sentence with an existing
sentence. Section 46-18-401, MCA, provides:
(1) Un.less the u d e otherwise orders
...
(b) whenever a person under suspended
sentence or on proba-tion for an offense
committed in this state is sentenced for
another offense, the period still to be
served on suspended sentence or proba-
tion shall be merged in any new sentence
of commitment or probation.
(3) If an unexpired sentence is merged
pursuant to subsection (I), the court
which imposed such sentence shall modify
it in accordance with the effect of the
merger. [Emphasis added.]
The sentencing judge's discretion is therefore limited to
merger of sentence. In the absence of merger, the statute
does not authorize modification of sentence. However, George
tries to equate "merger of sentence" and "modification of
sentence."
The terms "merger" and "modification" are distinct.
"Merger" is the fusion of one sentence into another sentence.
In contrast, "rnndification" is the alteration of the details
of a single sentence. No statute authorizes the modification
of George' s sentence. Under the rule of Dahlman, we find no
merit in his motion to amend judgment.
Alternatively, we shall consider George's present
appeal as a petition for post-conviction relief. In Dahlman,
698 P.2d at 425, we stated: "However, had defendant filed a
motion for post-conviction relief, the trial judge would have
had jurisdiction to modify defendant ' s sentence, pursuant to
46-21-101, MCA."
Section 46-21-101, MCA, provides:
A person adjudged guilty of an offense
in a court of record who has no adequate
remedy of appeal and who claims that
sentence was imposed in violation of the
constitution or the laws of this. state
or the constitution of the unitedostates
... may petition the court which
imposed the sentence or the supreme
court to vacate, set aside, or correct
the sentence or revocation order.
George alleges that the District Court abused its
discretion, without citing any instances of abuse. George
merely asserts that the sentencing judge should not have
considered George's traffic citation record, which was con-
tained in the presentence investigation report. George's
assertion runs counter to S 46-18-111, MCA, which states:
No defendant convicted of any other
offense that may result in commitment
for 1 year or more in the state prison
may be sentenced or otherwise disposed
of before a written report of investi-
gation a probation officer is. pre-
sented - and considered
to thecourt
unless t h e c o u r t deems s u c r report
unnecessary. The court may, - -in its
discretion, order a presentence investi-
gation - - a defendant convicted of any
for
lesser crime or offense. r~m3asi.s
The District Court noted that George's traffic record
"is the worst this Court has ever seen." The report revealed
that, prior to this action and within the last five years,
George has been arrested six times for driving while his
license was suspended, three times for speeding, twice for no
insurance, and once for driving under the influence. On
eight separate occasions, his license was suspended. Fur-
thermore, George was arrested twice for driving without a
license after he had been declared an habitual traffic of-
fender. Based on this report, the District Court concluded
that George is not a good rehabilitation risk.
The District Court noted that George showed no remorse
for his crimes. When asked to explain them, he replied that
he has a "lead foot." The District Court further noted that
a merger of sentences would effectively negate George's jail
time as an habitual traffic offender. The District Court
properly concluded that George did not deserve leniency. Lt
stated: "As his criminal history shows, George has been
repeatedly granted leniency by different judges. The grant-
ing leniency to Mr. George has not resulted in his rehabili-
tation in the slightest degree. He shows no respect for the
law whatsoever. The granting of leniency, in his case,
appears to create in him an ever increasing contempt for the
law. . . If ever a person deserved the maximum sentence for
his crime, it is Gerald Alan George."
We note that the purpose of the habitual traffic of-
fender statute is succinctly stated in § 61-11-201, MCA:
"This part is predicated upon the belief and philosophy that
innocent drivers and other innocent passengers and pedestri-
ans have a constitutional right to live, free from fear of
death or injury from habitual traffic offenders." We find
that George has repeatedly shown disreaard for Montana laws,
disrespect for court orders, and indifference toward the
safety of other citizens.
The District Court did not abuse its discretion. The
petition for post-conviction relief is denied. The District
We concur:
Mr. Justice Fred J. Weber specially concurs as follows:
I concur with the conclusions reached by the majority.
The first issue is whether the trial court erred in granting
the plaintiff's motion for partial summary judgment on the
issue of liability. I agree with the conclusion of the
majority that RN failed to raise a genuine issue of material
fact so that the District Court properly granted summary
judgment on the issue of liability. The majority also bases
its conclusion on 5 26-1-601, MCA, and I disagree with the
app,-ication that statute.
of
In substance the majority concludes that because the
claimsman for the BN in the course of his deposition present-
ed no facts to contradict the plaintiff's theory of the case
and because the attorney for the BN in the same deposition
pointed out at that point the R N was not aware of witnesses
who would say it didn't happen that way, that constituted a
leading of the plaintiff to believe the railroad was not
contesting the plaintiff's credibility concerning how the
accident. happened. The majority then concludes that the
railroad was estopped under 26-1-601, MCA, from making this
argument at trial and may not raise the issue on appeal.
Even though the claimsman was not able to dispute the plain-
tiff's version of how the various accidents happened, and
even though the BN attorney stated that they had no basis at
that point in time to say the plaintiff was not telling the
truth, I do not conclude that this is the type of declara-
tion, act or omission covered under 5 26-1-601, MCA. I
conclude that the BN would still have a right to contend that
the accidents did not occur in the manner detailed by the
plaintiff even though they had. no witnesses to the accidents.
Mr. Justice L . C. Gulbrandson joins i n A e foregoing
special concurrence.