IN THE SUPREME COURT OF THE STATEOF MONTAWA

EARL TAYLOR, Petitioner,

HENRY RISLEY, Respondent. No. 84-104

-. ORDER AND OPINION
CLEHilOFSrJPr:LkfPI,COiJRT STATEOFhididi','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-pplicationonly 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 orprospective. This Court has examined themotion and the response, as well as the order ofMay 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 yearsentence, 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 At that time, the petitioner's parole was revoked and 324 days of good time allowances earned by him while on parole were likewise revoked.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.tionfor a writ of habeas corpus, this Court stated: "The action 

### -- of the Board of Pardons purporting to release ~etitioner on ~arole from all three + -I-- consecutive sentenceswas 

### --- and is illegal.. All the time served, whether in prison or on parole, applies only against the twenty-year sentence for robbery,and petitioner has never begun servinghis 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 forparole: "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 hewas sentenced less good time allowancesas provided in section 80-740. (Emphasis added.)

### "TheBoard 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 sentencesare escape sentences innoway affects this result." The order of this Court on May 31, 1984 was not intended to change this rule of computingparole eligiblity for offenders serving consecutive sentences. IT IS ORDERED: 

### 1. 

### The language on page 2 

### of this Court's May 31, 1984 order, "Theaction of the Board of Pardonspurporting to release petitioner on parole from al.1 three consecutive sentences was and is illegal," is hereby ordered stricken. The remainderof that order remains intact. 2. 

### The parole eligibility of offenders serving consecutive sentences shall continue to be computedunder the rule of Herman, supra. 3. 

### The Clerk is directed tomail a true copy hereof to petitioner personally, to the Attorney General and to the CountyAttorney of CascadeCounty,Montana. dD 

### A & 

### DATED this

## 2- -day of

# &,1984

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## '4.-

" &,~9 

# hd Acting Chief JusticeJustices