No. 05-140 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2006 MT 159 

_______________________________________ 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

JOSEPH ELDON MILLER, 

 Defendant and Appellant. 

______________________________________ 

APPEAL FROM: District Court of the First Judicial District, 

 In and for the County of Lewis and Clark, Cause No. BDC 1998-305 

 The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

 For Appellant: 

Jon G. Moog, Assistant Public Defender, Helena, Montana 

 For Respondent: 

Hon. Mike McGrath, Attorney General; Jennifer Anders, Assistant 

Attorney General, Helena, Montana 

Leo Gallagher, County Attorney; Carolyn Clemens, Deputy County 

Attorney, Helena, Montana 

____________________________________ 

Submitted on Briefs: October 19, 2005 

 Decided: July 12, 2006 

Filed: 

______________________________________ 

Clerk 
Justice John Warner delivered the Opinion of the Court. 

¶1 Joseph Eldon Miller (Miller) appeals from a judgment and sentence in which he 

did not receive credit for time served in prison on an Indiana sentence. We affirm. 

¶2 The State charged Miller with issuing a bad check in 1998, and he pled guilty to 

this charge in 1999. He was committed to the Montana Department of Corrections for 

four years in March of 1999, all suspended. This suspended commitment commenced in 

November of 2002, after he completed a separate sentence. While serving the suspended 

commitment at issue here, Miller committed the offense of possession of a controlled 

substance in the State of Indiana. Upon conviction, he was sentenced to serve two years 

in the custody of the Indiana Department of Corrections. He was in prison in Indiana 

from April 21, 2003, to May 12, 2004. He was then released on parole from Indiana and 

returned to Montana. 

¶3 The State filed a petition to revoke his suspended commitment here in Montana 

based in part on the Indiana offense, which was a violation of the terms of the suspended 

commitment, on June 17, 2003. However, upon learning that he would be incarcerated in 

Indiana, the State dismissed that petition in January of 2004. 

¶4 Upon his return from Indiana, Miller continued to serve his un-revoked 

Department of Corrections commitment. However, before discharging that commitment, 

Miller again violated the terms of its suspension in multiple ways, including using 

alcohol and dangerous drugs. He admitted the violations, and the suspended commitment 

was revoked. On December 2, 2004, he was ordered to serve the remainder of the 

commitment on inmate status with the Department of Corrections, with the 

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recommendation that he be placed at Montana State Prison. 

¶5 Miller argued in the District Court that he was entitled to credit for the time he 

served in Indiana against the Montana commitment. However, the District Court gave 

him credit only for the 82 days he had spent in jail in Montana on the commitment, and 

refused to credit him with the year of prison time served in Indiana on the drug 

conviction. 

¶6 Miller appeals the District Court’s refusal to credit his Montana sentence with the 

time he spent in prison in Indiana. He claims that because he was serving prison time on 

the Indiana drug conviction at the same time his suspended Montana commitment was 

running, it would be both illegal and unfair not to give him credit for this time on his 

Montana commitment. In support of his arguments, Miller cites cases from Montana and 

other jurisdictions that are inapposite. We determine that Montana law settles the issue 

presented. 

¶7 We review a criminal sentence for legality only. State v. Cesnik, 2005 MT 257, ¶ 

13, 329 Mont. 63, ¶ 13, 122 P.3d 456, ¶ 13. 

¶8 Based on § 46-18-201(4), MCA (1997), Miller argues that he must receive credit 

for the time he spent incarcerated in Indiana.1

 Section 46-18-201(4), MCA (1997), 

provided: 

If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are 

violated, the court shall consider any elapsed time and either expressly allow part 

or all of it as a credit against the sentence or reject all or part as a credit. The court 

shall state its reasons in the order. Credit, however, must be allowed for jail or 

home arrest time already served. 

 

1

 § 46-18-201(4), MCA (1997), has now been re-codified as § 46-18-203(7)(b), MCA. 

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¶9 Section 46-18-201(4), MCA (1997), refers only to credit for jail time spent on the 

particular suspended sentence or commitment that is revoked. It does not provide that 

Miller is to receive credit on his suspended commitment in Montana for time spent in an 

Indiana prison on a separate conviction. Contrary to Miller’s argument, § 46-18-

401(1)(b), MCA, provides:2

(1) Unless the judge otherwise orders: 

(b) whenever a person under suspended sentence or on probation for 

an offense committed in this state is sentenced for another offense, 

the period still to be served on suspended sentence or probation may 

not be merged in any new sentence of commitment or probation. 

¶10 The District Court, upon revoking Miller’s suspended commitment, did not order 

that his Montana and Indiana sentences were to be merged. Thus, when Miller was 

serving prison time in Indiana, his suspended Montana commitment continued to run and 

it was not merged with the Indiana sentence. Had he not violated the terms of his 

suspended commitment by using drugs and alcohol, his suspended commitment would 

have been discharged in July of 2006. It was only when he violated the conditions of the 

suspended commitment after he returned to Montana that the suspension was revoked. 

Upon revocation, the District Court had the discretion to either allow or reject part or all 

of the time that had elapsed as a credit against the commitment. Section 46-18-201(4), 

MCA (1997). The District Court’s rejection of credit for elapsed time while on probation 

constitutes a legal part of a sentence. 

¶11 Affirmed. 

 /S/ JOHN WARNER 

 

2

 § 46-18-401(1)(b), MCA, has not been amended and was in effect when Miller committed the offenses in question. 

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We Concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ PATRICIA COTTER 

/S/ JIM RICE 

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