No. 79-18 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN THE MATTER OF THE PETITION OF 

JAMES E. GRAY 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Petitioner: 

Jackson and Kelley, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ted L. Mizner, County Attorney, Deer Lodge, Montana 

Submitted: November 7, 1979 

t, I-: -*- Filed: ;to~ 14 .-i; 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

This proceeding is a petition for a writ of habeas corpus 

seeking release of petitioner James E. Gray on bail pending 

determination of his petition for habeas corpus in the District 

Court of Powell County. 

In 1977 petitioner was convicted of the crime of forgery 

following his plea of guilty in the District Court of Cascade 

County. He filed a petition for a writ of habeas corpus in Powell 

County District Court in May, 1978. That petition attacks alleged 

improper and incorrect items in the presentence report which was 

prepared for the Cascade County District Court following his plea 

of guilty to the forgery charge. The relief he seeks in that petition is that his sentence be vacated and that he be returned to 

the Cascade County District Court for resentencing. No attack is 

made on petitioner's guilty plea or conviction of forgery. 

After the filing of the petition for habeas corpus in the 

Powell County District Court, petitioner was released on bail by 

Judge Robert Boyd. Petitioner remained free on bail for 15 months 

during which time he obtained numerous continuances of the hearing date on his petition and lost and regained the services of 

his present counsel. On September 6, 1979 when the Powell County 

petition finally came up for hearing, Judge John B. McClernan 

revoked petitioner's bail and remanded him to the State Prison 

where petitioner is presently incarcerated. 

On October 10, 1979, petitioner filed an original proceeding in this Court seeking a writ of habeas corpus. He contends 

he is entitled to release on bail pending final determination of 

proceedings attacking the sentence imposed on his forgeryconviction 

by the District Court of Cascade County. 

On October 12 we ordered petitioner to file a legal memorandum supporting his petition and directed the Attorney General 
to file a written response to the petition with supporting legal 

memorandum thereafter. These have now been filed and the matter 

submitted to us for decision. 

Petitioner's claim that he is entitled to release on bail 

is grounded on two arguments. First, he claims that Judge Boyd's 

order in 1978 releasing him on bail established the "law of the 

case" entitling him to remain free on bail. Secondly, petitioner 

contends that procedural prerequisites in section 46-9-311, MCA, 

mandate granting the writ of habeas corpus. 

The "law of the case" principle was discussed by this 

Court in a 1976 decision: 

"Under the 'law of the case' principle, judges 

of coordinate jurisdictions sitting in the same 

court and in the same case may not ordinarily 

overrule the decisions of each other. It is 

simply a rule of practice that articulates the 

sound policy that when an issue is once judicially 

determined, that should be the end of the matter 

as far as judges and courts of coordinate jurisdiction are concerned. The law of the case is 

not an imperative; does not go to the power of the 

court; and does not mean that a court does not have 

discretion to reconsider a ruling made by another 

judge in the same case." State v. Carden (1976), 

170 Mont, 437, 555 P.2d 738. (Citations omitted.) 

Judge McClernan thus had discretion to reconsider the 

ruling of Judge Boyd. Petitioner had remained free for 15 months 

due in large part to changes in counsel and continuances resulting therefrom. No progress was being made to resolve his petition for habeas corpus in the District Court of Powell County. 

Where only the sentence but not the conviction is being attacked 

in the collateral proceeding, petitioner if successful is not entitled to be released but only to be resentenced. In re Lewis 

(1916), 51 Mont. 539, 154 P. 713. In accord: Petition of Cheadle 

(1964), 143 Mont. 327, 389 P.2d 579; City of Billings v. Trenka 

(1970), 155 Mont. 27, 465 P.2d 838. Additionally, bail may be 

increased, reduced, substituted, revoked or the conditions of 

bail changed. Section 46-9-311, MCA 
The contention of petitioner that section 46-9-311, MCA, 

mandates granting his petition lacks merit. There is no prohibition in this statute or elsewhere preventing a court from 

acting on its own motion to revoke bail. The concurrent notice 

and revocation given by the District Court in this case was 

reasonable under the circumstances as petitioner had left the 

state and did not return until the time of hearing. 

The petition for writ of habeas corpus is denied. 

Chief Justice 

Justices (I 

Mr. Justice Daniel J. Shea dissents and will file a dissenting 

opinion later. 
DISSENT 

JUSTICE DANIEL J. SHEA 

No. S.C. 79-18 

IN THE MATTER OF THE 

PETITION OF JAMES E. 

GRAY 
Mr. Justice Daniel J. Shea dissenting: 

I would permit the defendant to remain on bail pending 

a trial court ruling on his request to have the sentence 

vacated. 

The majority grounds its decision on the wording of 

section 46-9-311, MCA, which permits a trial court to increase, 

reduce or substitute bail, or to revoke bail. Because a 

District Court has statutory authority to revoke bail, the 

majority has concluded that the District Court must have been 

correct in so doing. What I disagree with, however, is not 

the statute, which clearly sets forth the options available 

to the trial court; but rather, I object to the arbitrary 

decision of the trial court in revoking the bail, without any 

explanation whatsoever in justification of its action. This 

Court should not give much deference to a decision of any 

trial court if it has failed to articulate the reason for the 

action taken. 

Too often this Court must review the actions of a trial 

court in situating where there is absolutely no explanation 

in the record for the action taken. It is exalting form over 

substance in such cases to resort to the time-worth rule 

that the action of a trial court is presumed to be correct. 

What this Court stated in Ballant$ne v. Anaconda Co. (1978), 

Mont. , 574 P.2d 582, 35 St.Rep. 171, concerning reasons 

for decisions, applies equally to a decision by a trial court 

revoking a defendant's bail. 

Here, we have a situation where one trial court granted 

bail to a defendant and a decision from which the State did 

not object; that is, once the decision was made,the State did 

not attempt to overturn the decision. But then a different 

judge is called into the case, and without any explanation 
whatsoever he revokes defendant's bail bond. 

In defending the trial court's action,the State merely 

cites the statute which authorizes the revocation of a bail 

bond. The State then presumes to provide a possible explanation 

for the trial judge's decision by suggesting that defendant was 

taking advantage of his bail status and was not truly interested 

in having a day of reckoning to determine the propriety of 

sentence. It is possible that this is so, but the State does 

no service to the law of this State when it seeks to provide a 

reason for the action of a trial judge where there is absolutely 

no reason stated in the record for the action taken. 

By approving of the action of the trial courts in situations 

such as this, this Court is only encouraging the trial courts 

to be as fuzzy as possible in arriving at their decisions, 

knowing that their so-called discretionary acts will be protected 

from the light of day by the invocation of the rule that their 

actions are presumed to be correct. The presumption of correctness should evaporate at the moment the trial court has failed 

to disclose for the record the reasons for its decision. Neither 

the parties nor this Court should be required to guess as to 

why the trial court revoked the petitioner's bail in this case.