No. 12494 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

JOHNMALDONADO

## , Petitioner,

ROGER W. CRIST, asWarden of the Montana StatePenitentiary, Respondent.

ORIGINAL PROCEEDING:

Counsel of Record: For Petitioner: Berger, Anderson, Sinclairand 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:

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### 1973 Filed: 

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### 1973Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an originalproceeding 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 threeyears. 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 courtmodified 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 inMontana 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 sixmonths previously served as a condition of deferment against the fiveyears and nine monthsentence subsequently imposed. Section 95-2215(a), R.C.M. 1947,provides in pertinent part: "Anyperson incarcerated on a bailable offense and againstwhom a judgment of imprisonment is rendered shallbe allowed credit for each day of incarcerationprior to or after conviction

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## *." The State, on the other hand, contends that the situation here is similar to Petition of Williams, 145Mont. 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 issuehere. 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. DistrictCourt, Mont

# . , 508 P.2d 1056, 30 St.Rep. 437, the issue is whether defendant was "incarceratedon 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 issuewas 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 Justiceconcur: