### No. 80-140 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,-vsWILLIAM THOMAS FISHER, Defendant and Appellant.

Appeal from: The District Court of the Fourth Judicial District, In and for the County of Lake, The Honorable Jack L. 

### Green, Judgepresiding.

Counsel of Record: For Appellant: Douglas J. Wold, Polson,Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena, Montana Richard P. Heinz, County Attorney, Polson, Montana

Submitted on Briefs: November 19, 

### 1980

Filed: 

## !3/3.! yp:;Mr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal arises from a conviction of defendant of robbery following a jury trialinthe DistrictCourt of the FourthJudicial District, Lake County. On February 14, 1979, defendantwas charged inMissoula County with three felony counts of burglary. Defendant laterpleaded guilty to two counts, and the third was dismissed. Prior toentry of a judgment of conviction and sentencing, however, defendant escaped from theMissoula County jail. Following hisescape, defendantwas charged on July 24, 1979, with robbery inLake County. He was convicted of this charge inNovember 1979 and sentenced by the District Court toa term of twenty years inthe stateprison. The court also found: "For purposes of parole, the Defendant is found by the Court tobe a dangerous offender, hishaving been convicted of a felony inMissoula County within five (5) years lastpast." On January 7, 1980, the DistrictCourt of the Fourth JudicialDistrict, Missoula County, entered judgment and sentenced defendant for the two counts of burglary filed in February 1979. A judgment and sentence was also entered against defendant on an escape charge. The sole issueraised on appeal iswhether the District Court inLake County correctlydesignated defendant 

### a dangerous offender for the purpose of parole. Section 46-23-201, MCA, provides: 

# ".



# . .No convict serving a time sentencemay be paroled untilhe has served atleastonehalf of his fullterm

# . . .except that a convictdesignated asa nondangerous offender under 46-18-404 may be paroled afterhe has served one-quarter of his full

### term

# ..

# ."

### Under section 46-18-404, MCA, the sentencing court shall designate an offender as nondangerous if: "(a) during the 5 

### years preceding the commission of the offense forwhich the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and "(b) the courthas determined,based on any presentence reportand the evidence presented at the trial and the sentencinghearing, that the offender does not represent a substantial danger to other persons or society.



### " (3) If the courtdetermines that an of fender is not eligible to be designated as a nondangerous offender, it shallmake that determination a part of the sentence imposed and shall state the determination in the judgment. Whenever the sentence and judgment do not contain such a determination, the offender is considered to have been designated as a nondangerous offender for parole purposes." Conviction isdefined in section 45-2-101(9), MCA: "'Conviction' means a judgment of conviction or sentence entered upon a guilty plea or upon a verdict or finding of guilty of an offense rendered by a legally constituted jury or court of competent jurisdiction authorized to try the case without a jury." Defendant,onNovember 28, 1979,was found to be a 

### dangerous offender based upon a Missoula County felony "conviction." Defendant,however, was not convicted or sentenced as to the burglary charges in Missoula County until January 

### 7, 1980. With this being the case,we find the District Court improperly used the burglary conviction

as a basis for its dangerous offender designation. The fact that defendantpleaded guilty to the burglary charges inMissoula County has no effect upon this Court's finding. The determination of a nondangerous offenderstatusunder section 46-18-404(1)(a), MCA, isbased upon an examination of prior convictions. See Statev. Dahl (1980), Mont. 

## , P.2d 

## , 37 St.Rep. 1852, 1857. A conviction cannot be equated with a plea of guilty. The case isremanded to the DistrictCourt for resentencing, inaccordance with this opinion, with instructions to determine if defendant, under section 46-18-404, MCA, is tobe designated a nondangerous offender for parole purposes.



# ' Justice /

We concur: 

### nMr. Chief Justice Frank I. Haswell, dissenting. I would affirmJudge Green's designation of defendant as a dangerous defender. InMarch, 1979, defendant plead guilty 

### to twoburglaries. InJune, 1979, defendant escaped from jail while awaiting sentencing. InNovember, 1979, defendant 

### was convicted of a robbery he committed while 

### at large following his escape, sentenced 

### to 20 years, and designated a dangerous offender by reason of his prior conviction of burglary 

### less than a year previously. The majority remand for resentencing because defendant's plea of guilty to the two prior burglaries 

### was not equivalent 

### to

a conviction thereof under the definition contained in section 45-2-101(a), MCA. Thus, defendant could not be designated a dangerous offender on thisbasis according 

### to the majority. Inmy view, this is blind obedience 

### to form over substance. It 

### is contrary to the intent, purpose and policy of the dangerous-nondangerous offender statute, section 46-18-404, MCA. The intent of this statute is obvious--to 

### restrict parole eligibilityof an offender who has committed a prior felony within 5years of the offense forwhich he 

### is being sentenced. A dangerous offender is not eligible forparole until he has served one-half of his sentence 

### less good 

### time allowances; a nondangerous offender becomes eligible forparole after serving onefourth of his sentence 

### less good 

### time allowances. Section 46-23-201(a), MCA. In determining offender statusand parole eligibility, recent prior felonies committed by the defendant 

### are paramount. Section 46-18-404, MCA. What difference does it make whether a formal judgment of conviction has been entered where the defendant has admitted the prior felonies inopen court by pleading guilty? To ask the question is to answer it. The definition of a conviction cited inthe majority opinion is incomplete. The relevant portion of the definitional statutereads: -5-'I. 

# .. unless a differentmeaning plainly 

### is required, the 

### ?allowing definitions apply

## in the 

### title:

"(9) 'Conviction' means a judgment of conviction



# ...entered upon a plea of guilty orupon a verdict or finding of guilty of an offense 

# .

# .." (Emphasis added.) Section 45-2-101, MCA. Here a different meaning plainly is required to carryout the intent, purpose and policy of the dangerous-nondangerous offender statute for the reasons expressed in this dissent. Additionally, the only reason that a formal judgment of conviction of the prior burglaries was not entered is that defendant escaped while awaiting sentencing. It is fundamental to our system of jurisprudence that no one can take advantage of his own wrong; this principle has been enacted into statute in Montana. Section 1-3-208, MCA. This 

### is precisely what the majority have permitted here.

Chief Justice

Mr. JusticeJohn Conway Harrison: I concur intheforegoing dissent.