No. 13206 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

IN THE MATTER OF 

KEITH RODNEY HANSON 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Appellant : 

David J. Patterson, Missoula, Montana 

Sandra Rose Muckelston argued, Missoula, Montana 

Larry Epstein, Law Student, argued, Missoula, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Jock 0. Anderson, Assistant Attorney General, 

argued, Helena, Montana 

Submitted : December 1, 1975 

Decided : 1 3 1976 

Filed: i: 3 41~ 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Keith Rodney Hanson filed a petition for post-conviction 

relief and memorandum in support thereof in the district court, 

Missoula County, asking that he be given credit for all the 

time served prior to the time his suspended sentence was revoked 

and he was sentenced to the state prison. The district court 

denied his petition. A petition for post-conviction relief was 

thereafter filed with this Court. 

This Court ordered briefs filed and heard oral argument 

and took the matter under advisement. 

On October 17, 1974, Keith Rodney Hanson, defendant, 

petitioner herein, pled guilty in the district court, fourth 

judicial district, Missoula County, to theft, a felony, and to 

deceptive practices, a felony. He was sentenced by the district 

court to five years in the state prison at Deer Lodge. Four years 

were suspended and defendant was to serve one year in the Missoula 

County jail. Under the judgment imposing sentence, defendant was 

given credit for time already served in the Missoula County jail, 

such credit amounting to 147 days. 

On February 10, 1975, defendant was granted permission by 

the district court to participate in a jail work release program 

from the Missoula County jail. Defendant violated the terms of 

the work release order and the Missoula County attorney filed a 

petition for revocation of probation and imposition of sentence. 

On March 11, 1975, hearing was held in the district court 

in Missoula with defendant being represented by the Missoula public 

defender. On that same date, the court entered an order that revoked the earlier suspended sentence and sentenced defendant to 

serve the entire five year sentence at Montana state prison at 

Deer Lodge. The court also ordered that defendant was entitled 

to receive credit "for time served in Missoula County jail since 
February 13, 1975, said credit amounts to 26 days." 

On August 20, 1975, defendant filed a petition for postconviction relief with the district court in Missoula County 

stating that the 26 day credit received under the March 11, 1975, 

order was incorrect. Attached to this petition was a letter 

from Sheriff John C. Moe, Missoula County, Montana, stating that 

prior to March 19, 1975, (apparently the date defendant was transferred from Missoula County jail to Montana state prison, Deer 

Lodge), defendant Keith Rodney Hanson had served a total of 275 

days in the Missoula County jail for the criminal charges under 

consideration. A hearing was held, arguments had and the petition was denied. 

The law is clear in this area, section 95-2206, R.C.M. 

1947, provides in pertinent part: 

"Whenever any person has been found guilty of a 

crime or offense upon a verdict or a plea of 

guilty the court may: 

"(2) Suspend execution of sentence up to the maximum sentence allowed for the particular offense. 

The sentencing judge may impose on the defendant 

any reasonable restrictions during the period of 

suspended sentence * * *. 

"If any restrictions or conditions are violated, 

any elapsed time, except jail time, shall not be 

a credit against the sentence, unless the court 

shall otherwise order." (Emphasis supplied.) 

Stating the exception in the above sentence in the positive, the 

law clearly provides that time spent in jail while a defendant 

is under a suspended sentence must be credited to the defendant's 

sentence. 

There is no dispute that defendant spent 147 days in 

jail prior to his plea of guilty, subsequent judgment, and sentence; that thereafter he was in jail 128 days until the suspended sentence was revoked and defendant was transferred to the state 

prison for a term of the original five year sentence. 
Therefore defendant is entitled to credit for time 

served in the total of 275 days to be applied against the five 

year sentence. The confusion seems to arise because of the 

original suspension and one year to serve in the county jail. 

Time served was allowed against that one year term. If the trial 

judge had sentenced to four years upon revocation his calculation 

would be correct. However, revocation and sentence for the full 

five years entitles defendant to the full 275 days. 

The district court is directed to enter an order amending its March 11, 1975 order and allow the full 275 days for time 

served. 

Justices tJ