No. 96-208 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

,..\p 1 1 q,l\? ! 1 ,x 

PHILLIP DANIEL SARVER, , ,, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Phillip Daniel Sarver, Deer Lodge, Montana (pro se) 

For Respondent: 

Joseph P. Mazurek, Attorney General, Patricia J. 

Jordan, Assistant Attorney General, Helena, Montana; 

Valerie D. Wilson, Jefferson County Attorney, 

Boulder, Montana 

Filed: 

Submitted on Briefs: February 20, 1997 

Decided: March 11, 1997 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

Appellant Phillip Daniel Sarver (Sarver) appeals the decision 

of the Fifth Judicial District Court, Jefferson County, denying his 

petition for post-conviction relief. We affirm. 

The sole issue raised on appeal is whether the District Court 

erred in denying Sarver's petition for post-conviction relief. 

In 1987, Sarver was convicted of three counts of felony theft. 

The District Court sentenced Sarver to three concurrent ten-year 

terms, but suspended the sentences provided he comply with standard 

probation conditions. 

In 1991, the State filed a petition to revoke Sarver's 

suspended sentence because Sarver had violated the conditions of 

his probation. On April 25, 1993, the District Court held a 

hearing on the petition to revoke probation. Sarver was present at 

this hearing with counsel, and he admitted to some, if not all, of 

the probation violations asserted. The District Court then revoked 

his suspended sentence and reimposed the sentence of three 

concurrent ten-year terms to be served in the Montana State Prison, 

less time served. Sarver did not appeal the revocation of his 

probation. 

2 
On March 22, 1996, Sarver filed a petition for post-conviction 

relief with the District Court, which the court summarily denied. 

Sarver now appeals the denial of his petition for post-conviction 

relief. 

On appeal, Sarver asserted the following alleged errors in 

support of his petition for post-conviction relief: 

1. The District Court's summary denial of his petition for 

post-conviction relief indicated a lack of deliberation and 

resulted in this Court lacking a fully developed record with which 

to consider this appeal. 

2. In resentencing him, the District Court failed to credit 

Sarver with the time elapsed while on probation, or to set forth 

reasons for refusing to do so. 

3. The District Court lost the jurisdictional authority to 

revoke Sarver's probation due to the lapse of four years between 

imposition of the original sentence and the State's petition to 

revoke the same. 

The State responds that Sarver is prohibited from raising any 

of the above-listed alleged errors in a petition for postconviction relief because he could have raised all these issues in 

a direct appeal but did not do so. The State therefore contends 

that the District Court's summary denial of Sarver's petition was 

proper because his petition was and is procedurally barred. 

Section 46-21-101, MCA, allows a convicted individual to file 

a petition for post-conviction relief if he or she believes the 

sentence received is invalid for jurisdictional, constitutional, or 
other legal reasons. State v. Christensen (1995), 274 Mont. 326, 

328, 907 P.2d 970, 971. However, 

[wlhen a petitioner has been afforded a direct appeal of 

the petitioner's conviction, grounds for relief that 

could reasonably have been raised on direct appeal may 

not be raised in the original or amended petition. 

Section 46-21-105 (2), MCA. 

The State asserts that Sarver could have raised the two issues 

which relate to the court's revocation of his probation by directly 

appealing that revocation. Since he did not do so, the State 

contends that his petition is procedurally barred by § 46-21- 

lO5(2), MCA. 

Sarver responds by arguing that 5 46-21-105(2), MCA, does not 

require a petitioner to have raised all possible issues in a direct 

appeal. Rather, Sarver argues: 

Section 46-21-105(2), MCA, would prevent, or bar, a 

petitioner from raising additional issues in a subsequent 

petition that could have been raised in an original 

petition. It is obvious that the legislature's intent 

was not to bar a petitioner from filing post-conviction 

simply because he had an opportunity to file a direct 

appeal. Rather, § 46-21-105 (2), MCA, is to require a 

petitioner to include all issues in an original petition, 

thus preventing the filing of successive and subsequent 

petitions which include other, not previously presented 

issues which could have been raised in the original 

petition. To [hold] otherwise would void the postconviction act, in that nobody would ever be able to file 

a post-conviction petition as most, if not all, cases 

have the opportunity to file a direct appeal. 

(Emphasis added.) Sarver misreads the statute 

We have repeatedly held that § 41-21-105(2), MCA, bars a 

petitioner from raising in a petition for post-conviction relief 

those issues which could have been raised by direct appeal. See 

Christensen, 907 P.2d 970; Vernon Kills On Top v. State (19961, 928 
P.2d 182, 53 St.Rep. 1197; State v. Moorman (1996), 928 P.2d 145, 

53 St .Rep. 1173; In re the Petition of Manula (1993) , 263 Mont. 

166, 866 P.2d 1127. This rule "preserves the integrity of the 

trial and direct appeal and prevents abuse of the post-conviction 

relief process." Moorman, 928 P.2d at 148 (citing State v. Gorder 

(IggO), 243 Mont. 333, 792 P.2d 370). It also accomplishes the 

stated purpose of the post-conviction relief statutes, which is 

to bring together and consolidate into one simple statute 

all the remedies, bevond those that are incident to the 

usual orocedures of trial and review, which are at 

present available for challenging the validity of a 

sentence of imprisonment. 

Commission Comments to 5 46-21-101, MCA (emphasis added). 

Moreover, § 46-21-105 (2), MCA, by its plain language, bars any 

claims which could have been raised in a direct apoeal, not merely 

those which could have been raised in an earlier post-conviction 

petition. 

We agree that the legislature did not intend to bar an 

individual from filing a post-conviction relief petition merely 

because he or she has already been afforded an appeal, and, indeed, 

that is not the effect of the provision in question. Rather, 5 46- 

21-105(2), MCA, prevents duplication of litigation and reinforces 

the importance of the direct appeal by requiring a defendant to 

raise all possible alleged errors in an appeal. An individual who 

was afforded a direct appeal may still file a petition for postconviction relief and assert any grounds which could & have been 

raised in the appeal. 
Sarver argues that this interpretation effectively "voids" the 

post-conviction relief provisions of the Montana code because 

"nobody would ever be able to file a post-conviction petition as 

most, if not all, cases have the opportunity to file a direct 

appeal." Again, Sarver misreads the statute. Section 46-21- 

105 (2), MCA, does not prohibit a defendant who has been afforded an 

appeal from filing a petition for post-conviction relief; it merely 

requires that the defendant first raise all possible arguments in 

a direct appeal. If he or she fails to do so, the arguments which 

could have been presented on appeal will not be heard in a petition 

for post-conviction relief. 

The State is correct in asserting that Sarver's arguments are 

procedurally barred by § 46-21-105 (2) , MCA, and, therefore, the 

District Court did not err in dismissing the petition. 

Affirmed. 

We Concur: , ,-