No. 12481 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE ex rel. DANIEL J. BOVEE, 

Relator, 

vs. 

THE DISTRICT COURT OF THE SIXTH 

JUDICIAL DISTRICT, et al. 

Respondents . 

ORIGINAL PROCEEDING 

Counsel of Record: 

For Relator: 

Joseph T, Swindlehurst argued, Livingston,Montana 

For Respondents: 

Jack Yardley, Livingston, Montana 

Robert L. Woodahl, Attorney General, Helena, Montana 

J. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana, 

Submitted: April 2, 1973 

Decided : Wk I- 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 Deer Lodge, Pursuant 

thereto, relator served four months in the state prison. 

Following relator's release from prison, the district 

court on January 10, 1973, revoked relator's deferred imposition 

of sentence and sentenced him to a term of five years 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 credit him with the four months he had previously 

served in the state prison as a condition of the original deferment of sentence. 

Relator has filed a petition for writ of mandate as an 

original proceeding 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 

against whom a judgment of imprisonment is rendered 

shall be allowed credit for each day of incarceration 

prior to or after conviction * * *. ' 
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 state prison 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 of Williams, 145 Mont. 45, 399 

P.2d 732, in support. 

The state's contention misses the mark, Woodbury involved 

the validity of imposing a thirty day jail sentence as a condition 

of deferment of sentence, an issue not 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 jail based 

probation, likewise not an issue in this case. 

The sole issue in this case is whether 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 against him following revocation of deferment, 

Accordingly, he "shall be allowed credit for each day of incarceration prior to or after conviction" pursuant to the statute. 

It is foreign to the issue in the instant case vhether the four 

months served in the state prison is considered "a term of imprisonment" or "a judgment of imprisonment" for purposes of determining its validity as in Woodbury or in determining the validity 

of the prison term subsequently imposed as in Williams; it is 
nonetheless "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,