### No. 12481 IN THE SUPREME COURT OF THE STATE OF MONTANA 1973

STATE ex rel. DANIELJ. BOVEE, Relator,
vs. 

### THE DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT,et al. Respondents

# .

ORIGINAL PROCEEDING
Counsel of Record: For Relator: Joseph T, Swindlehurstargued, Livingston,Montana For Respondents: JackYardley, Livingston,Montana Robert L. Woodahl,Attorney General, Helena,Montana J. C. Weingartner,Assistant Attorney General, argued, Helena,Montana,

Submitted: April 2, 1973 Decided: 

# WkI- 7073

Filed: 

# 1%PER CURIIPM:
This is an application for a writ of mandate to compel the district court to credit petitioner with four months previously served in the state prison as a condition of deferment of sentence,against the sentence subsequently imposed following revocation of the deferment. The facts are undisputed. Relator entered a plea of guilty to the crime of possession of dangerous drugs in the district court of Park County. On April 27, 1972, the district court deferred imposition of sentence on condition that relator
serve four months in the state prison at DeerLodge, Pursuant thereto, relator served four months in the state prison. Following relator's release fromprison, the district court on January 10, 1973,revoked relator's deferred imposition of sentence and sentencedhim to a term of fiveyears imprisonment in the state prisan. The district court gave relator credit for forty days confinement in the county jail prior to sentencing, but refused to credithimwith the four months hehad previously served in the state prison as a condition of the original deferment of sentence. Relator has filed a petition forwrit of mandate as an originalproceeding in this Court contending that section 95-2215, R,C.M. 1947,requires that he be credited with the four months previously served as 

### a condition of deferment against the five year sentence subsequently imposed. Following issuance of an order to show cause, an adversary hearing was held. Section 95-2215(a), R.C.M, 1947,provides in pertinent part: "Any person incarcerated on a bailable offense and againstwhom a judgment of imprisonment is rendered shallbe allowed credit for each day of incarceration prior to or after conviction

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# *.'Accordingly, relator argues,he is entitled to credit for the four months previously served as a condition of deferment, The state,on the other hand, contends that serving a period of time in the county jail or stateprison as a condition of deferment of sentence cannot be considered a judgment of imprisonment within the meaning of the statute,or a term of imprisonment in any sense. It is simply a condition of deferment and nothing else, according to the state, The state cites State
ex rel. Woodbury v, District Court, 159 Mont. 128, 495 P,2d 1119, 29 St,Rep. 250,and In re Petition ofWilliams, 145 Mont. 45, 399 P.2d 732, in support. The state's contentionmisses the mark, Woodbury involved the validity of imposing a thirty day jail sentence as a condition of deferment of sentence,an issuenot involved in the instant case, Williams involved the power of the district court to subsequently sentence a defendant to a term in the state prison following revocation of a suspended sentence involving jailbased probation, likewisenot an issue in this case. The sole issue in this case iswhether the prison time previously served by relator as a condition of deferment must be credited against the prison term subsequently imposed. Relator
was clearly "incarcerated on a bailable offense" under the statute when he served four months in the state prison as 

### a condition of deferment of sentence on a plea of guilty to the crime of possession of dangerous drugs. A "judgment of imprisonment"was subsequently imposed againsthim following revocation of deferment, Accordingly,he "shall be allowed credit for each day of incarcerationprior to or after conviction" pursuant to the statute. It is foreign to the issue in the instant casevhether the four months served in the state prison is considered "a term of imprisonment" or "a judgment of imprisonment" forpurposes of determining itsvalidity as inWoodbury or in determining the validity of the prison term subsequently imposed as inWilliams; it isnonetheless "incarceration on a bailable offense" under section 95-2215(a), R,C.M. 1947, entitling relator to credit therefor against the prison sentence subsequently imposed. Let an appropriate writ issue forthwith directing the district court to credit the four months served by relator in the state prison in 1972 against the sentence imposed on January 19, 1973,