No. 12494 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

JOHN MALDONADO , 

Petitioner, 

ROGER W. CRIST, as Warden of the 

Montana State Penitentiary, 

Respondent. 

ORIGINAL PROCEEDING : 

Counsel of Record : 

For Petitioner: 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana. 

Arnold A. Berger argued, Billings, Montana. 

For Respondent: 

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

Montana. 

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

Helena, Montana. 

Submitted: May 17, 1973 

Decided : MAY 2 9 1973 

Filed : MAY 2 !; 1973 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an original proceeding for a writ of habeas 

corpus. Petitioner seeks to compel the district court to credit 

petitioner with six months previously served in the Yellowstone 

County jail as a condition of deferment of sentence. 

On September 11, 1970, petitioner plead guilty to assault 

in the second degree. The district court deferred imposition of 

sentence and placed petitioner on probation for three years. On 

August 25, 1971, a petition was filed seeking revocation of the 

order deferring imposition of sentence by reason of violation by 

the defendant of certain terms and conditions of probation. Subsequently, the district court modified its September 11, 1970 

order and ordered that petitioner be confined in the Yellowstone 

County jail for a period of six months under the work release 

program. 

On October 27, 1972, petitioner was charged with the crime 

of burglary. Thereafter, a petition for revocation of order 

deferring imposition of sentence was filed. A hearing was held 

on January 25, 1973. The district court found that the petitioner 

did in fact violate the conditions of his deferred sentence. 

Therefore the court revoked petitioner's deferred imposition 

of sentence and sentenced the defendant to a term of five years 

and nine months in the Montana State Prison for the original 

crime of assault in the second degree. The sentence for second 

degree assault in Montana is one to six years or a fine not exceeding $2,000 or both such fine and imprisonment. Section 94- 

602, R.C.M. 1947. 

Petitioner filed this application for writ of habeas 

corpus contending that section 95-2215(a), R.C.M. 1947, requires 

that he be credited with the six months previously served as a 

condition of deferment against the five years and nine month 
sentence subsequently imposed. 

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 * * *." 

The State, on the other hand, contends that the situation 

here is similar to Petition of Williams, 145 Mont. 45, 399 

P.2d 732. In Williams, as here, the defendant was ordered 

"jail-based" in the county jail under the work release program. 

The issue in Williams, however, is not the same as the 

issue here. Williams involved the question of "double jeopardy" 

which turned on whether the incarceration as a probationary 

rule was a "judgment" and "sentence". 

Here, as in State ex rel. Bovee v. District Court, 

Mont . , 508 P.2d 1056, 30 St.Rep. 437, the issue is whether 

defendant was "incarcerated on a bailable offense" within the 

meaning of section 95-2215(a) and thus entitled to "credit for 

each day of incarceration prior after conviction". This 

issue was not answered in Williams. 

Applying Bovee, petitioner is entitled to credit for the 

time he served in the county jail as a condition of probation. 

The petition for writ of habeas corpus shall be granted 

directing the district court to credit the time served by petitioner in the Yellowstone County jail in 1971 and 1972 as a 

condition of deferment of sentence against the sentence subsequently imposed on January 25, 1973. 

Associate Justice 
concur :