No. 14252 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

KEVIN T. MURPHY, 

Petitioner, 

VS. 

STATE OF MONTANA, 

Respondent. 

ORIGINAL PROCEEDING: 

Decided: hfRR 2 7 1979 

Filed: WR 2 1Q79 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Petitioner, Kevin T. Murphy, filed a pro se application 

for habeas corpus on April 10, 1978. By order of July 21, 1978 

this petition was denied as a proceeding for habeas corpus but 

it was decided that the portions of the petition concerning 

sentence imposed upon the petitioner would be treated as a petition for post conviction relief under Title 95, Ch. 26, R.C.M. 

1947, now Title 46, Ch. 21 MCA. 

Kevin T. Murphy was found guilty by a jury on September 

23, 1976 of a burglary committed on May 3, 1976. He was sentenced 

on October 1, 1976 to confinement in the State Prison for the term 

of not less than 10 years. The order of commitment contains the 

following: 

"It is further ordered and adjudged and this 

order does order and adjudge that said defendant, 

Kevin T. Murphy, is a persistent offender, and 

that said Defendant receive no credit for the 

time served to date in the Silver Bow County Jail. 

That the defendant is not to be granted good time 

as a first offender, but must earn his own credit 

for good time." 

One issue raised by petitioner is whether a letter dated 

September 28, 1976 addressed to the sentencing judge and signed 

by John Lynch as parole and probation officer at Butte, Montana 

was used as a presentence report by the judge at the sentencing 

on October 1, 1976. 

The memorandum filed by the Silver Bow County Attorney 

in response to the court order of July 21, 1978 raised factual 

questions as to his letter. The court ordered an evidentiary 

hearing in the District Court. The hearing was held on January 

26, 1979 and on February 14, 1979 the judge of the District Court 

filed an order and judgment with this Court. 

In part the order states: 

"That an evidentiary hearing was had and a report 

dated September 28, 1976 of the Pardon and Parole 

Officer, namely John Lynch, was entered in evidence, 
and said report was recognized by the court as being 

the same as was served upon the parties and delivered 

to the Court before sentencing in this matter which 

had occurred on the first day of October, 1976." 

The order then confirmed the order of October 1, 1976. 

The Silver Bow County Attorney's brief states: 

"This letter, dated September 28, 1976, is in the 

form of an arrest record of the Defendant while 

under the supervision of Probation and Parole Office. 

This letter is not in the proper form of a presentence as required by Section 95-2004, R.C.M. 1947 

(now section 46-18-112 MCA) . . . 

The letter after listing ten arrests from March 1973 to 

February 1976 concludes as follows: 

"Along with the current charge, there have been a 

total of six charges involving burglary that Kevin 

Murphy has been involved in during the time this 

office has been associated with him - a period of 

a little over three years. 

"During this time, we have attempted to work with 

him in every way possible. We have tried to get 

him help for his drug and alcohol problems but he 

has been totally unreceptive. 

"At this time, the only alternative I can recommend 

is incarceration in Montana State Prison." 

The memorandum of the Silver Bow County Attorney states: 

"In March, 1973 petitioner KEVIN T. MURPHY entered 

a plea of Guilty to the charge of Burglary, a Felony, 

in the District Court of the First Judicial District, 

Lewis and Clark County, and received a three (3) year 

Deferred Imposition of Sentence. In September, 1974, 

the Petitioner entered a plea of Guilty to the charge 

of Burglary, a Felony, in the District Court of the 

Second Judicial District, Butte-Silver Bow County, 

and received a one (1) year Deferred Imposition of 

Sentence. The Petitioner completed the probationary 

period in both cases without being revoked. Motions 

by the Petitioner to have these Guilty pleas expunged 

from the Court records were not filed until November, 

1977. 

"Based on the two (2) above-mentioned cases the Petitioner was found to be a persistent Felony offender, 

pursuant to Section 95-2206.5, R.C.M. 1947, (section 

repealed by section 6, Ch. 340, Laws of 1977) after 

he was found Guilty of Burglary, a Felony, on October 

1, 1976. . ." 

From the above it is clear that the letter of September 28, 

1976 was used as a presentence investigation. Further it did not 
comply with the requirements of section 95-2204, R.C.M. 1947, 

now 46-18-112 MCA, and while there may be discretion in the trial 

judge not to order a presentence investigation under section 

95-2203, R.C.M. 1947, now 46-18-111 MCA, such was not the case 

here; especially where the report was used to find the defendant 

a persistent offender. Under section 95-2206.5, enacted by Section 2, Ch. 312, Laws of 1975. Repealed by Section 6, Ch. 340, 

Laws of 1977. 

Also enacted by Ch. 12 as Section 3, Laws of 1975 was an 

amendment of section 95-3214, R.C.M. 1947, now section 46-23- 

201 MCA but amended by Section 60, Ch. 184, Laws of 1977, amended 

Section 3, Ch. 340, Laws of 1977, and amended Section 3, Ch. 580, 

Laws of 1977, which provided that no convict serving a time sentence could be paroled until he had served at least one-third 

of his full term, less good time allowance off if he were designated a persistent felony offender under section 95-2206.5 as 

opposed to serving one-fourth of a full term less good time allowance off if not a persistent felony offender. 

The defendant therefore is entitled to be returned to the 

District Court in Silver Bow County for resentencing for the following reasons: 

(1) The letter of September 28, 1976 did not comply with 

section 95-2204, R.C.M. 1947, now 4.6-18-112 MCA, and the procedure set out in Kuhl v. District Court (1961), 139 Mont. 536, 366 

P.2d 347, 351. 

(2) The denial of credit for time served in the Silver 

Bow County jail before conviction is error. Section 95-2215, R.C.M. 

1947, now section 46-18-403 MCA, states: 

"Credit for incarceration prior to conviction. 

(a) Any person incarcerated on a bailable offense 

and against whom a judgment of imprisonment is 

rendered shall be allowed credit for each day of 

incarceration prior to or after conviction . . ." 
Such credit is granted by the statute as a matter of 

right. Maldanado v. Crist (1973), 162 Mont. 240, 510 P.2d 

887; State ex rel. Bovee v. District Court (1973), 162 Mont. 98, 

508 P.2d 1056; In the Matter of Hanson (1976), 169 Mont. 80, 544 

P.2d 816; Matter of LeDesma (1976), Mont . , 554 P.2d 751, 

33 St.Rep. 902. 

The remaining issue presented is not ready for decision. 

As stated above the court apparently relied on two previous 

deferred impositions of sentence to find defendant a persistent 

felony offender under section 95-2206.5, R.C.M. 1947 as it existed 

on October 1, 1976. 

Section 95-2207, R.C.M. 1947, now 46-18-204 MCA, provides 

for dismissal after deferred imposition. 

"Whenever the court has deferred the imposition of 

sentence and after termination of the time period 

during which imposition of sentence has been deferred, 

upon motion of the court, the defendant, or the defendant's attorney, the court may allow the defendant to withdraw his plea of guilty or may strike the 

verdict of guilty from the record and order that the 

charge or charges against him be dismissed." 

Here the defendant did not move until November 1977, more 

than a year after the October 1, 1976 sentence, to have the pleas 

of guilty withdrawn and the charges dismissed. 

As to the question of whether a guilty plea followed by a 

deferred imposition of sentence can be relied upon by the State 

as a prior felony conviction in order to invoke the persistent 

felony offender statute, sufficient facts are not known. As this 

matter must be returned to the District Court for resentencing 

the issue should be addressed by the District Court. 

In passing it should be noted that other courts have come 

to different conclusions on this or similar issues. See State v. 

Drew (1971), 158 Mont. 214, 490 P.2d 230. 

Judge Russell Smith refers to it as "adopting the Omar 

Khayyam approach". Fite v. Retail Credit Company (D.C.Mont. 1975), 
For a good discussion of the development of the similar 

California statute, California Penal Code, Sec. 1203.4, see 

State v. Walker, 14 Wash.App. 348, 541 P.2d 1237, 1240; see also 

State v. Bock (1958), 80 Idaho 296, 311, 328 P.2d 1065; ~adilla 

v. State (1977), 90 N.M. 664, 568 P.2d 190; (1949) 2 Stanford L. 

Rev. 221; (1954) 27 S.Cal. L.Rev. 327. 

As to the definition of conviction under such a statute 

see 12 S.Cal. L.Rev. 201. 

Effect of expungement on criminal conviction, (1967), 40 

S.Cal. L.Rev. 127; Expungement myth, (1963) 28 Los Angeles Bar 

Bulletin (1963) 161; Wiping out a criminal or juvenile federal 

jury, L. Baum (1965), 40 S.Bar J. 816. 

The sentence is vacated and the cause remanded to the 

District Court with directions to resentence petitioner Kevin T. 

Murphy in a manner not inconsistent with this opinion. 

Chief Justice 

Jus ices s'