No. 14473 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

DARRELL KEITH SMITH, Pro Se, 

Petitioner, 

VS . 

STATE OF MONTANA, 

Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

John R. Cobb, U of M Law School, Missoula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Submitted: June 29, 1980 

Decided : FEE 1 1 19_80 

Filed: FEB 1: 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant appeals from an order of the Missoula County 

District Court denying his petition for post-conviction relief. 

At a previous hearing on the State's petition to revoke defendant's 

probation, the trial court not only revoked his probation, but 

designated him as a dangerous offender for purposes of parole 

eligibility. Defendant claims that the trial court had no 

authority to designate him as a dangerous offender at the hearing 

on the State's petition to revoke his probation. We agree. 

On March 22, 1978, the District Court sentenced the defendant 

to ten years in prison for the crime of aggravated assault, but 

suspended the entire ten years and placed defendant on probation. 

Less than two months later, the State petitioned the court for 

revocation of defendant's probation and at a hearing on May 8, 

1978, the court not only revoked probation but also designated 

the defendant as a dangerous offender for purposes of parole. 

Later, the defendant petitioned the District Court for reduction 

of his sentence and for designation as a nondangerous offender. 

Defendant appeals from the order denying his petition to be 

designated as a nondangerous offender. 

Defendant contends the District Court's sentence for 

aggravated assault implicitly designated him as a nondangerous 

offender. Section 46-18-404(1), MCA, has been amended since 

March 1978 when sentencing occurred, but at the time of sentencing, 

this statute provided: 

"(1) The sentencing court shall designate 

an offender a nondangerous offender for purposes 

of eligibility for parole under part 2 of 

chapter 23 if: 

"(a) during the 5 years preceding the commission 

of the offense for which the offender is being 

sentenced, the offender was neither convicted 

of nor incarcerated for an offense committed in 

this state or any other jurisdiction for which a 

sentence to a term of imprisonment in excess of 

1 year could have been imposed; and 
"(b) the court has determined, based on any 

presentence report and the evidence presented 

at the trial and the sentencing hearing, that 

the offender does not represent a substantial 

danger to other persons or society." 

The defendant was convicted of burglary in April 1977 and 

therefore does not qualify as a nondangerous offender under 

section 46-18-404(1)(a). He argues, however, that the 

court order of March 22, 1978 granting him probation for 

the crime of aggravated assault implicitly found that he 

did "not represent a substantial danger to other persons 

or society" and thus found that he was a nondangerous offender. 

We agree with this interpretation of the court order. Moreover, we find that under the present facts, section 

46-18-404(1), MCA, required the District Court to designate 

the defendant as a nondangerous offender. 

This Court interpreted section 46-18-404(1), in 

Grifaldo v. State (1979), Mont . , 596 P.2d 847, 

36 St.Rep. 1220, where the petitioners asserted the 

sentencing court erred in failing to determine whether they 

were dangerous or nondangerous offenders. Since neither 

of the petitioners had committed a felony in the five years 

prior to the commission of the offense for which they were 

sentenced, each argued that he should have been designated 

as a nondangerous offender at the sentencing hearing. We 

held that the mandatory language contained in section 

46-18-404(1) required the sentencing court to designate 

the defendant "nondangerous" if "either of the conditions 

of subsection (a) - 'or' b are met." The defendant here was 

convicted of a felony less than a year prior to his commission of aggravated assault and therefore he could not be 

designated as nondangerous under subsection (1) (a). However, 

when the sentencing court placed defendant on probation and 

suspended the ten year prison sentence, the effect of this order 

was to determine that defendant did not represent a substantial 

danger to society. 
See section 46-18-101, MCA. Under these circumstances, the 

court should have designated the defendant as a nondangerous 

offender. 

The revocation order which defendant appeals stated 

that he was a dangerous offender. Section 46-18-404(1) 

grants jurisdiction to the sentencing court to designate an 

offender as nondangerous. At the time of the revocation 

hearing, the District Court had, of course, already sentenced 

the defendant and provided for the suspension of his sentence. 

Neither section 46-18-404(1) nor section 46-18-203, MCA, 

(which governs the authority of a court during the period of 

a suspended sentence) permits the court to designate the 

defendant as a dangerous offender. See State v. Downing 

(19791, Mont. , 593 P.2d 43, 36 St.Rep. 696. Thus, 

it is clear that the District Court had no authority under 

either of these statutes to determine at the revocation 

hearing that the defendant was a dangerous offender for 

purposes of parole. 

We reverse the May 8, 1978 order to the extent that it 

designates defendant as a dangerous offender. We remand 

this case to the sentencing court to designate the defendant 

as a nondangerous offender and to notify the appropriate authorities 

of the changed designation. 

, Chief Justic5 

Justices