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, Judge presiding. 

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 trial in the District Court of the 

Fourth Judicial District, Lake County. 

On February 14, 1979, defendant was charged in Missoula 

County with three felony counts of burglary. Defendant 

later pleaded guilty to two counts, and the third was dismissed. Prior to entry of a judgment of conviction and 

sentencing, however, defendant escaped from the Missoula 

County jail. 

Following his escape, defendant was charged on July 

24, 1979, with robbery in Lake County. He was convicted of 

this charge in November 1979 and sentenced by the District 

Court to a term of twenty years in the state prison. The 

court also found: "For purposes of parole, the Defendant is 

found by the Court to be a dangerous offender, his having 

been convicted of a felony in Missoula County within five 

(5) years last past." 

On January 7, 1980, the District Court of the Fourth 

Judicial District, 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 issue raised on appeal is whether the District 

Court in Lake County correctly designated defendant a dangerous offender for the purpose of parole. 

Section 46-23-201, MCA, provides: 

". . . No convict serving a time sentence may 

be paroled until he has served at least onehalf of his full term . . .except that a convict designated as a nondangerous offender 

under 46-18-404 may be paroled after he 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 for which 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 court has determined, based on any 

presentence report and the evidence presented 

at the trial and the sentencing hearing, that 

the offender does not represent a substantial 

danger to other persons or society. 

" (3) If the court determines that an of fender 

is not eligible to be designated as a nondangerous offender, it shall make 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 is defined 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, on November 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 defendant pleaded guilty to the burglary 

charges in Missoula County has no effect upon this Court's 

finding. The determination of a nondangerous offender 
status under section 46-18-404(1)(a), MCA, is based upon an 

examination of prior convictions. See State v. Dahl (1980), 

Mont. , P.2d , 37 St.Rep. 1852, 1857. 

A conviction cannot be equated with a plea of guilty. 

The case is remanded to the District Court for resentencing, in accordance with this opinion, with instructions 

to determine if defendant, under section 46-18-404, MCA, is 

to be designated a nondangerous offender for parole purposes. 

' Justice / 

We concur: 

n 
Mr. Chief Justice Frank I. Haswell, dissenting. 

I would affirm Judge Green's designation of defendant as a 

dangerous defender. 

In March, 1979, defendant plead guilty to two burglaries. 

In June, 1979, defendant escaped from jail while awaiting 

sentencing. In November, 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 this basis according to the majority. 

In my 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 

eligibility of an offender who has committed a prior felony 

within 5 years of the offense for which he is being sentenced. A 

dangerous offender is not eligible for parole until he has served 

one-half of his sentence less good time allowances; a nondangerous offender becomes eligible for parole after serving onefourth of his sentence less good time allowances. Section 

46-23-201(a), MCA. In determining offender status and 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 in open court by 

pleading guilty? To ask the question is to answer it. 

The definition of a conviction cited in the majority opinion is incomplete. The relevant portion of the definitional 

statute reads: 

-5- 
'I. . . unless a different meaning plainly is 

required, the ?allowing definitions apply in the 

title: 

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

. . . entered upon a plea of guilty or upon a verdict 

or finding of guilty of an offense . . ." 

(Emphasis added. ) Section 45-2-101, MCA. 

Here a different meaning plainly is required to 

carry out 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. Justice John Conway Harrison: 

I concur in the foregoing dissent.