State ex rel. Wetzel v. Ellsworth
| Decision Date | 09 September 1963 |
| Docket Number | No. 10643,10643 |
| Parties | The STATE of Montana ex rel. Dennis M. WETZEL, Relater, v. Edward C. ELLSWORTH, Jr., Warden of the Montana State Prison, Respondent. |
| Court | Montana Supreme Court |
Malcolm MacCalman (argued), Deer Lodge, for relator.
Donald J. Beighle, County Atty., Deer Lodge, Forrest H. Anderson, Atty. Gen., and Donald Douglas, Asst. Atty. Gen. (argued), Helena, for respondent.
This court is in receipt of a petition for a writ of habeas corpus filed by Dennis M. Wetzel, an inmate of the Montana State Prison, wherein it is asserted that the petitioner is still confined at the prison under a four-year sentence which began on March 18, 1959. It further appears that when the sentence was imposed by the district court an order of suspension was entered and on or about November 20, 1960, such order of suspension was revoked and petitioner was thereafter confined in the State Prison; that by reason of the failure of the prison authorities to give credit for any portion of the time between the imposition of the suspended sentence and the revocation thereof it is contended by the petitioner that he is being illegally confined.
In view of the fact, that of necessity there are other inmates similarly situated, this court believes this matter of sufficient importance to necessitate oral argument and written briefs of counsel in order that the court may give it consideration and be made aware of all aspects of the situation in general as it applies to petitioner and to all inmates similarly situated; and
The petitioner here having appeared pro se, and he and others similarly situated should be properly represented by counsel, it is ordered that Malcolm MacCalman, Esq., of Deer Lodge, Montana, be, and he is hereby, appointed as such counsel, and he is directed to forthwith investigate the fact situation and brief the law applicable thereto, and for that purpose he will be allowed such time as he may require, not to exceed fifteen (15) days without a further order of this court, and then to file with this court six (6) copies of a statement of facts and brief on the law, in typewritten form, and to serve copies thereof upon the Warden of the Montana State Prison, the counsel for the State Board of Pardons, and upon the Attorney General of the State of Montana; and the respondent Warden, and the others heretofore named, are hereby granted a period of ten (10) days from the date of such service in which to serve and file answering briefs, typewritten in form, and upon receipt thereof by this court a date will be set for oral argument;
It is further ordered that copies of the original petition shall be forwarded to the appointed counsel, the Warden, counsel for the State Board of Pardons and the Attorney General of the State of Montana, together with a copy of this order.
Until the further order of this court all matters in this cause are held in abeyance.
Relator, an inmate of the Montana State Prison, filed a petition for writ of habeas corpus, pro se, alleging that he was sentenced to a term of four years in the state prison on or about March 18, 1959, and that such sentence was suspended, and that on or about November 20, 1960, such suspension order was revoked and relator thereafter confined to the state prison; that his discharge date as computed in the prison is now set at March 13, 1964, whereas the term of four years should have expired on or about March 18, 1963, and he is still being confined.
This court, being of the opinion that there were other inmates similarly situated, believed the matter of sufficient importance to necessitate appointment of counsel to represent relator and others similarly situated, in order to brief the applicable law and present oral argument before this court, so that we might be able to give adequate consideration to the matter, appointed such counsel and directed him to forthwith investigate the fact situation and brief the law, and further providing that oral argument would be heard when briefs were filed by all concerned, and in the interim this cause was held in abeyance.
Upon receipt of briefs from the relator and respondent Warden the cause was orally argued and submitted for decision.
The sole issue raised is this: Does a sentence of confinement for a term of years, the execution of which was duly suspended, commence to run for all purposes on the date the judgment of conviction was entered?
To answer the question a brief history of out suspended sentence and probation laws will be necessary.
Section 94-4717, R.C.M.1947, enacted in 1895, provides:
In 1913, the Legislature adopted 'An Act to provide that persons convicted of certain Offenses may be given the Benefits of a Suspended Sentence, and providing for the Supervision and care of such Persons,' being Chapter 21 of the Laws of 1913.
Section 7 of Chapter 21, until its repeal in 1955, was section 94-7828, R.C.M.1947, and read:
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