### 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 : 

## 13

## 1976

Filed: i: 3 

### 41~

ClerkMr. 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 inthe districtcourt, Missoula County, asking that he be given credit for allthe time served prior tothe time his suspended sentence 

### was revoked and he was sentenced tothe 

### state prison. The district court denied hispetition. A petition forpost-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, totheft, a felony, and to deceptive practices, a felony. He was sentenced by the district court to fiveyears inthe stateprison atDeer Lodge. Four years


### were suspended and defendant was to serve one year inthe 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 districtcourt toparticipate in

### a jail work release program from the Missoula County jail. Defendant violated the terms of thework 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 inMissoula 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 fiveyear sentence atMontana stateprison at Deer Lodge. The court also ordered that defendant was entitled toreceive credit "for time served inMissoula Countyjail sinceFebruary 13, 1975, said credit amounts to 26 days." On August 20, 1975, defendant filed a petition for postconviction relief with the districtcourt inMissoula County stating that the 26 day credit received under the March 11, 1975, order 

### was incorrect. Attached to thispetitionwas a 

### letter from Sheriff John C. Moe, Missoula County, Montana, stating that prior toMarch 19, 1975, (apparently the date defendant was transferred from Missoula County jail toMontana 

### state prison, Deer Lodge), defendant Keith Rodney Hanson had served 

### a total of 275 days in theMissoula County jail for the criminal charges under consideration. A hearing was held, arguments had and the petition

### was denied. The law 

### isclear inthis 

### area, section 95-2206, R.C.M. 1947, provides inpertinent part: "Whenever any person has been found guilty of 

### a 

### crimeor offense upon a verdict or a plea of guilty the court may:
"(2)Suspend execution of sentence up tothemaximum 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 orconditions 

### 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 inthe above sentence in the positive, the law clearly provides that 

### time spent injail while a defendant 

### is under a suspended sentence must be credited tothe defendant's sentence. There 

### is no dispute that defendant spent 147 days in jail prior tohis plea of guilty, subsequent judgment, and sentence; that thereafter he was injail 128 days until the suspended sentence 

### was revoked and defendant was transferred tothe 

### state prison for a 

### termof the original fiveyear sentence.

### Therefore defendant is 

### entitled to credit for time 

### served in the total of 275 days tobe applied against the five year sentence. The confusion seems to arisebecause of the original suspension and one year to serve inthe 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 fiveyears entitlesdefendant tothe full 275 days. The districtcourt isdirected toenter an order amending its

### March 11, 

### 1975 order and allow the full 275 days for time served.

Justices tJ