IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 93-221

KENNETH S. ROBBINS,

Petitioner,

-vJACK MCCORMICK, Warden,

Montana State Prison,

Respondent.

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OPINION

AND

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Kenneth S. Robbins comes before this Court with a Petition for

Writ of Habeas Corpus. Petitioner was released from Montana State

Prison on April 29, 1993, and is presently serving probation on the

suspended portion of his sentence handed down in March 1982 in

Sheridan County for Criminal Sale of Dangerous Drugs and Criminal

Possession with Intent to Sell.

The issue raised by Petitioner is whether he has been properly

ordered to serve probation or if, alternatively, he has completely

discharged his sentence.

The pertinent facts are as follows: On April 1, 1982,

Petitioner, on his plea of guilty to Criminal Sale of Dangerous

Drugs and Criminal Possession with Intent to Sell in Sheridan

County, received a sentence of fifteen years with ten years

suspended.

On April 28, 1986, while on parole for the Sheridan County

conviction, Petitioner pled guilty to two counts of Criminal Sale

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of Dangerous Drugs in Gallatin County. On May 16, 1986, he

received two concurrent twelve year sentences on his plea. The

District Court, however, failed to specify whether the Gallatin

County SentenCeS were to run consecutively or concurrently with the

Sheridan County sentences.

On June 26, 1986, Petitioner's parole on the Sheridan County

Convictions was revoked and he was ordered incarcerated until his

discharge date in August 1986.

Petitioner was discharged from the Montana State Prison on

April 29, 1993, on the Gallatin County charges, but he then was

placed on ten years probation as a result of the ten year suspended

sentence in Sheridan County.

Section 46-18-401, MCA (1985), provides, in pertinent part:

(1) Unless the judge otherwise orders:

(a) whenever a person serving a term of commitment

imposed by a court in this state is committed for another

offense, the shorter term or shorter remaining term shall

be merged in the other term except as provided in

subsection (5); and

(b) whenever a person under suspended sentence or on

probation 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.

. . .

(5) Except as provided in this subsection, whenever a

prisoner is sentenced for an offense committed while he

was imprisoned in the state prison or while he was

released on parole or under the supervised release

program, the new sentence runs consecutively with the

remainder of the original sentence. The prisoner starts

serving the new sentence when the original sentence has

expired or when he is released on parole under chapter

23, part 2, of this title in regard to the original

sentence, whichever is sooner. In the latter case, the

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sentences run concurrently from the time of his release

on parole.

Petitioner relies on Petition Of Arledge (1988), 232 Mont.

450, 756 P.2d 1169, wherein we held, in the absence of a lower

court order specifying whether sentences in the Fourth and Eleventh

Judicial Districts were consecutive or concurrent, that § 46-18-

401(l)(a), MCA, required merger of sentences imposed by the

Eleventh Judicial District with those imposed by the Fourth

Judicial District.

We did not discuss in our opinion, however, the application of

subsection (5) where, as in the instant case, the defendant is

convicted or pleads guilty to a subsequent offense while on parole,

nor did we consider the application of subsection (l)(b), when the

defendant is also under a suspended sentence at the time of his

conviction of or plea to the second offense.

Because we did not consider the application of subsections

(l)(b) and (5) to the facts in Arledse, we limit our holding on

Issue II in Arledoe to that case.

In construing a statute where there are several provisions or

particulars, the function of this Court is, if possible, to adopt

a construction that will give effect to all. Section l-Z-101, MCA.

In the absence of the sentencing court's order to the

contrary, subsection (5) of the statute provides an exception to

the general requirement of merger set forth in subsection (l)(a),

if the prisoner is sentenced for an offense committed while he is

imprisoned in the state prison or while he is released on parole or

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under the supervised release program.

In the instant case, Petitioner was on parole from the

Sheridan County sentence when he was sentenced in Gallatin County.

Since the District Court in Gallatin County failed to specify

whether the sentences in that case were to be served consecutively

or concurrently with the Sheridan County sentences, 5 46-18-401(5),

MCA, required that the "new" (Gallatin County) sentence run

consecutively with the remainder of the "original" (Sheridan

County) sentence with the defendant to start serving the "new"

(Gallatin County) sentence when the "original" (Sheridan County)

sentence expired.

Since Petitioner was also under suspended sentence from

Sheridan County at the time he was sentenced on the Gallatin County

offenses, subsection (l)(b) required the suspended Sheridan County

sentence be merged in the Gallatin County sentences.

The net result of the application of subsections 46-18-

401(l)(b) and (5), MCA, is that the Gallatin County sentences

commenced to run when the Petitioner's Sheridan County sentence

expired, taking into consideration that the suspended portion of

the Sheridan County sentence was merged in the Gallatin County

sentences.

There is no authority under 5 46-18-401(5), MCA, for the State

to require the Petitioner to serve the suspended portion of his

"original" (Sheridan County) sentence consecutively with the end of

his "new" (Gallatin County) sentence. The plain language of that

subsection of the statute requires precisely the opposite, that is,

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that the "original" sentence be served before the "new" sentence

commences to run.

The Petitioner having been discharged from the Gallatin County

sentence and the suspended portion of the Sheridan County sentence

having been merged in the Gallatin County sentence,

IT IS HEREBY ORDERED that Petitioner be discharged from his

probation on the Sheridan County sentence.

DATED this & day of May, 1993.