concurring in part and dissenting in part:
I would affirm the judgment and sentence in its entirety.
I concur in affirming the judgment of conviction for the reasons stated in the majority opinion. I dissent from the majority construction of section 46-18-404, MCA and remand the cause to the District Court for resentencing the defendant.
Although the statute is inartfully drafted, it implies, at least, that a convicted offender is ineligible for designation as a nondangerous offender if he was convicted or incarcerated in any jurisdiction for a felony during the preceding five years. Section 46-18-404(1)(a), MCA. In this case defendant was convicted of burglary on August 25, 1976, in the State of Wyoming. Subsection (3) of the statute simply provides a catchall for the benefit of the defendant in cases where the sentencing court neglects to incorporate defendant’s noneligibility for nondangerous offender status in the judgment. I *217do not construe subsection (3) as a discretionary grant of authority to the sentencing court to confer nondangerous offender status to a convicted felon who has a prior felony conviction within five years.