Murphy v. State
Citation | 181 Mont. 157,592 P.2d 935 |
Decision Date | 20 March 1979 |
Docket Number | No. 14252,14252 |
Parties | Kevin T. MURPHY, Petitioner, v. STATE of Montana, Respondent. |
Court | Montana Supreme Court |
Kevin T. Murphy, pro se.
Mike Greely, Atty. Gen., Helena, John G. Winston, County Atty., Butte, for respondent.
Petitioner, Kevin T. Murphy, filed a pro se application for habeas corpus on April 10, 1978. By order of July 21, 1978 this petition was denied as a proceeding for habeas corpus but it was decided that the portions of the petition concerning sentence imposed upon the petitioner would be treated as a petition for post conviction relief under Title 95, Ch. 26, R.C.M.1947, now Title 46, Ch. 21 MCA.
Kevin T. Murphy was found guilty by a jury on September 23, 1976 of a burglary committed on May 3, 1976. He was sentenced on October 1, 1976 to confinement in the State Prison for the term of not less than 10 years. The order of commitment contains the following:
One issue raised by petitioner is whether a letter dated September 28, 1976 addressed to the sentencing judge and signed by John Lynch as parole and probation officer at Butte, Montana was used as a presentence report by the judge at the sentencing on October 1, 1976.
The memorandum filed by the Silver Bow County Attorney in response to the court order of July 21, 1978 raised factual questions as to his letter. The court ordered an evidentiary hearing in the District Court. The hearing was held on January 26, 1979 and on February 14, 1979 the judge of the District Court filed an order and judgment with this Court.
In part the order states:
"That an evidentiary hearing was had and a report dated September 28, 1976 of the Pardon and Parole Officer, namely John Lynch, was entered in evidence, and said report was recognized by the court as being the same as was served upon the parties and delivered to the Court before sentencing in this matter which had occurred on the first day of October, 1976."
The order then confirmed the order of October 1, 1976.
The Silver Bow County Attorney's brief states:
The letter after listing ten arrests from March 1973 to February 1976 concludes as follows:
The memorandum of the Silver Bow County Attorney states:
From the above it is clear that the letter of September 28, 1976 was used as a presentence investigation. Further it did not comply with the requirements of section 95-2204, R.C.M.1947, now 46-18-112 MCA, and while there may be discretion in the trial judge not to order a presentence investigation under section 95-2203, R.C.M.1947, now 46-18-111 MCA, such was not the case here; especially where the report was used to find the defendant a persistent offender. Under section 95-2206.5, enacted by Section 2, Ch. 312, Laws of 1975. Repealed by Section 6, Ch. 340, Laws of 1977.
Also enacted by Ch. 312 as Section 3, Laws of 1975 was an amendment of section 95-3214, R.C.M.1947, now section 46-23-201 MCA but amended by Section 60, Ch. 184, Laws of 1977, amended Section 3, Ch. 340, Laws of 1977, and amended Section 3, Ch. 580, Laws of 1977, which provided that no convict serving a time sentence could be paroled until he had served at least one-third of his full term, less good time allowance off if he were designated a persistent felony offender under section 95-2206.5 as opposed to serving one-fourth of a full term less good time allowance off if not a persistent felony offender.
The defendant therefore is entitled to be returned to the District Court in Silver Bow County for resentencing for the following reasons:
(1) The letter of September 28, 1976 did not comply with section 95-2204, R.C.M.1947 now 46-18-112 MCA, and the procedure set out in Kuhl v. District Court (1961), 139 Mont. 536, 366 P.2d 347, 351.
(2) The denial of credit for time served in the Silver Bow County jail before conviction is error. Section 95-2215, R.C.M.1947, now section 46-18-403 MCA, states:
Such credit is granted by the statute as a matter of right. Maldonado v. Crist (1973), 162 Mont. 240, 510 P.2d 887; State ex rel. Bovee v. District Court (1973), 162 Mont. 98, 508 P.2d 1056; In the Matter of Hanson (1976), 169 Mont. 80, 544 P.2d 816; Matter of LeDesma (1976), Mont., ...
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