Yo. 13479 

'-N LkfL ~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 

!iearing Waived 

-- 

Submitted: September 13, 1976 

Decided: Sk?zi1976 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an original proceeding wherein petitioner seeks 

post-conviction relief by reason of the following facts: 

He is currently serving a 5 year prison sentence at 

Montana State Prison. On October 16, 1972, he was found guilty 

of the crime of burglary in the district court of Yellowstone 

County. He was sentenced to five years in Montana State Prison, 

but this was suspended on certain conditions, one of them being 

that he serve nine months in Yellowstone County jail. As a 

result the petitioner was incarcerated in Yellowstone 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the suspended sentence was revoked and petitioner was ordered to 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 five year sentence in Montana State Prison. He 

was given credit for 54 days of jail time which was computed from 

the day of his arrest to the day of sentencing. Petitioner seeks 

credit for the time he spent in Yellowstone County jail as a condition of the suspended sentence. 

The question for the Court is whether the legislature, 

prior to their 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 "jail time". Or, does 

section 95-2215, R.C.M. 1947, govern the credit of time spent in 

jail prior to the revocation? Or did it intend that section 95- 

2215 only be applicable in situations other than a suspended 

sentence. 

We quote the applicable portions of the two statutes 

involved. 

Section 95-2215, R.C.M. 1947, in part provides: 

"95-2215. Credit for incarceration prior to conviction. (a) Any person incarcerated on a bailable offense and aqainst whom a iudqment of 

imprisonment is rendered shall be ailowed credit 

for each day of incarceration prior to or after 
conviction except that in no case shall the time 

allowed as a credit exceed the term of the 

prison sentence rendered." 

Section 95-2206, R.C.M. 1947, in relevant part provides: 

"95-2206. Sentence. Whenever any person has been 

found guilty of a crime or offense upon a verdict 

or plea the- court may impose any of the following 

sentences: 

" (3) Suspend the execution of the sentence up 

to the maximum sentence allowed for the particular 

offense. However, if any restrictions or conditions 

are violated, any elapsed time shall not be a credit 

against the sentence, unless the court shall otherwise order." 

This section speaks specifically to rendering a suspended 

sentence and gives the sentencing judge the discretion to award 

or deny credit for "elapsed time". Section 95-2215, R.C.M. 1947, 

makes it mandatory that credit be given for all days of incarceration prior to or after conviction, when a person is incarcerated 

on a bailable offense and has a judgment of imprisonment rendered 

against him. 

To determine the legislative intent one must consider that 

both of these statutes were enacted at the same time. Sec. 1, 

Ch. 196, L. 1967. In a later 1973 amendment to section 95-2206, 

the legislature excepted "jail time" from the term "elapsed time" 

and left section 95-2215 unchanged. A reasonable interpretation 

of this action is that the legislature intended to clarify the 

earlier language of section 95-2206 to place the credit of jail 

time within the mandate of section 95-2215. The Court has held 

that after this amendment a person is entitled to credit for the 

time spent in jail 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 in the case of a revocation of a 
suspended sentence, when the petitioner seeks credit only for 

the time spent in jail 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 the meaning of that statute. If so, he was entitled to credit for the 

time spent in jail as a condition of the deferment when the 

deferment was revoked. 

From a practical point of view a suspended sentence and 

a deferred imposition of sentence are very similar. In each instance the defendant must adhere to certain conditions to avoid 

a more severe sentence. It seems unlikely that the legislature 

intended that a person receiving a deferred imposition of sentence be entitled to credit for the time spent in jail as a 

condition of the deferment if such deferment is revoked, but 

the person receiving a suspended sentence is not so entitled. 

For these reasons the cause is remanded to the sentencing court with directions to make and enter a revised judgment 

granting defendant credit for his jail time. 

It is so ordered. 

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We concur: