NO. 86-345 

IN THE SUPREME COURT OF THR STATP OF MONTANA 

1986 

STATE OF MONTANA, 

Plaint5 f f and Respondent, 

-vsGERALD 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 

Mike McGrath, County Attorney, Helena, Montana 

- 

Submitted on Briefs: Sept. 25, 1986 

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 ude 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 probation 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 contained 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 investigation a probation officer is. presented - to and considered thecourt 

unless thecourt deems sucr report 

unnecessary. The court may, - in - its 

discretion, order a presentence investigation -- for a defendant convicted of any 

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. Furthermore, George was arrested twice for driving without a 

license after he had been declared an habitual traffic offender. 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 granting leniency to Mr. George has not resulted in his rehabilitation 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 offender 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 pedestrians 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 of that statute. 

In substance the majority concludes that because the 

claimsman for the BN in the course of his deposition presented 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 RN 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 plaintiff'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 declaration, 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 inAe foregoing 

special concurrence.