### Yo. 13479 

### '-NLkfL ~UPKI:IVIE 

### 30URf 

### OF THE STATE 3P' "ION'I'ANA 

### 1976

Zounsel of Record: For Petitioner: David 

### J. Patterson =ind

### Gregory ToJd, L~lissoula 

## , Montana

Hon. Robert 

### Id. Woodahl, Atcorney General, 

### Helena,

Montana !iearingWaived

-- 

### Submitted: September 

### 13, 1976 Decided: 

### Sk?zi1976Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This 

### is an originalproceeding wherein petitioner seeks post-conviction relief by reason of the following facts: He 

### is currently serving a 5 year prison sentence at Montana StatePrison. On October 16, 1972, he was found guilty of the crime of burglary inthedistrictcourt of Yellowstone County. He was sentenced to fiveyears inMontana StatePrison, but thiswas suspended on certain conditions, one of them being that he servenine months inYellowstone County jail. As a result the petitioner was incarcerated inYellowstone County jail from August 24, 1972 through May 23, 1973. On April 7, 1975, the suspended sentence was revoked and petitioner was ordered to
serve the full fiveyear sentence inMontana StatePrison. He
was given credit for 54 days of jail 

### timewhich was computed from the day of his arrest tothe day of sentencing. Petitioner seeks credit for the 

### timehe spent inYellowstone County jail as a condition of the suspended sentence. The question for the Court 

### iswhether the legislature, prior totheir amendment to section 95-2206, R.C.M. 1947, in 1973, intended that in the event of a revocation of a suspended sentence, "elapsed time" as stated therein excluded "jailtime". Or, does section 95-2215, R.C.M. 1947, govern the creditof 

### time spent in jail prior tothe revocation? Ordid it intend that section 95- 2215 only be applicable in situations other than a suspended sentence. Wequote the applicable portions of the two statutes involved. Section 95-2215, R.C.M. 1947, inpart provides: "95-2215. Credit for incarceration prior toconviction. (a) Any person incarcerated on a bailable offense and aqainstwhom a iudqment of imprisonment 

### isrendered shallbe ailowed credit for each day of incarceration prior toor afterconviction except that inno case shall the time allowed 

### as a credit exceed the term of the prison sentence rendered." Section 95-2206, R.C.M. 1947, inrelevant part provides: "95-2206. Sentence. Whenever any person has been found guilty of a crime or offense upon a verdict or plea the-courtmay impose any of the following sentences:


### "(3) Suspend the execution of the sentence up tothemaximum sentence allowed for the particular offense. However, if any restrictions or conditions areviolated, any elapsed time shall not be a credit against the sentence, unless the court shall otherwise order." This section speaks specifically torendering a suspended sentence and gives the sentencing judge the discretion toaward
or deny credit for "elapsed time". Section 95-2215, R.C.M. 1947, makes it mandatory that credit be given for alldays of incarceration prior toor after conviction, when a person is incarcerated
on a bailable offense and has a judgment of imprisonment rendered against him. To determine the legislative intentonemust consider that both of these statutes were enacted atthe same 

### time. Sec. 1, Ch. 196, L. 1967. In a later 1973 amendment to section 95-2206, the legislature excepted "jailtime" from the term "elapsed time" and left section 95-2215 unchanged. A reasonable interpretation of this action is that the legislature intended to clarifythe earlier language of section 95-2206 toplace the creditof jail 

### timewithin themandate of section 95-2215. The Court has held that after this amendment a person isentitled tocredit for the time spent injail prior to a revocation of a suspended sentence. In the Matter of Hanson, Mont. 

## , 544 P.2d 816, 33 St.Rep. 70. This Court has never addressed the question whether section 95-2215 has any effect inthe case of a revocation of asuspended sentence, when the petitioner seeks credit only for the 

### time spent injail prior to the revocation. However, the Court has answered the issue in regard to a revocation of a deferred imposition of sentence. Bovee v. District Court, 162 Mont. 98, 508 P.2d 1056; Maldonado v. Crist, 162 Mont. 240, 510 P.2d 887. In each instance the Court said that section 95-2215
was controlling and that the only issue involved should be whether defendant was incarcerated on a bailable offense within themeaning of that statute. If so, he 

### was entitled tocredit for the 

### time spent injail asa condition of the deferment when the deferment was revoked. From a practical point of view a suspended sentence and
a deferred imposition of sentence arevery similar. In each instance the defendant must adhere tocertain conditions toavoid
a more severe sentence. It seems unlikely that the legislature intended that a person receiving a deferred imposition of sentence be entitled tocredit for the 

### time spent injail asa condition of the deferment if such deferment 

### isrevoked, but the person receiving a suspended sentence is not so entitled. For these reasons the cause 

### isremanded to the sentencing court with directions tomake and enter a revised judgment granting defendant credit for hisjail 

### time. It is so ordered.



### -4-

### We concur: