                                                 No.    89-489

                                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                       1990


STATE OF MONTANA,
     Plaintiff and Respondent,


GORDON THIEL,
     Defendant and Respondent.


APPEAL FROM:                         District Court of the Seventh Judicial District,
                                     In and for the County of Richland,
                                     The Honorable H. R. Obert, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                                     Mike Weber, Fairview, Montana
          For Respondent:
                                     Hon. Marc Racicot, Attorney General, Helena, Montana
                                     Jennifer Anders, Asst. Atty. General, Helena
                                     Phillip Carter, Deputy County Attorney, Sidney,
                                     Montana


                                                              Submitted: January 18, 1990
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                                                          .' . Decided:   March 13, 1990
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Justice John C. Sheehy delivered the Opinion of the Court.


     The defendant Gordon hi el appeals from two orders issued by
the Seventh Judicial District Court, Richland County, revoking a
suspended sentence and a deferred sentence. We clarify the effect
of the sentences imposed.
     The defendant's issue on appeal can be summarized as follows:
     Must defendant serve the sentence imposed on him in cause no.
1952 consecutively to the revoked deferred and suspended sentences
imposed on him in other convictions?
     The defendant first appeared before the Seventh Judicial
District in cause no. 1737, where he pled guilty to two counts of
sexual assault.     On May 23, 1984, the ~istrict Court Judge
sentenced the defendant to serve seven years on each count to run
concurrently. All seven years were suspended.
     The defendant next appeared before the Seventh Judicial
District on February 10, 1986, in cause no. 1902 where he pled
guilty to the felony charge of issuing a bad check in violation of
5 45-6-316, MCA. In that case, on March 17, 1986, the District
Court deferred the imposition of sentence.
     On May 20, 1986, the State filed a petition to revoke both the
suspended sentence in cause no. 1737 and the deferred sentence in
cause no. 1902.      The District Court stayed the revocation
proceedings until completion of a third matter, cause no. 1952, in
which defendant was charged with 26 counts of sexual intercourse
without consent. Following the trial, on July 22, 1987, a jury
found the defendant guilty of all counts in cause no. 1952.
     On October 23, 1987, the ~istrict Court sentenced the
defendant in cause no. 1952. The District Court made no mention
of cause nos. 1737 or 1902, the pending petitions in those matters,
or the sentences in those matters in the judgment and sentence
entered in cause no. 1952.
     On April 4, 1988, a hearing was held before the District Court
on the State's petition to revoke defendant's sentences in cause
no. 1737 and cause no. 1902. The court revoked both sentences and
ordered the defendant to serve seven years in cause no. 1737 and
three years in cause no. 1902, with both terms to run concurrently.
In its order the court stated that the sentences and judgments in
the revocation matter were "strictly independent from the sentence
and judgment found in cause no. 1952.''
     On June 3, 1988, defendant filed a timely notice of appeal
from the court's revocation orders. He had applied for sentence
review on May 11, 1988, prior to filing the notice of appeal, but
waived his appearance before the Sentence Review Division on March
1, 1989. On July 27, 1989, defendant affirmed his appeal of the
revocation order to this Court.
                                 I
     Must defendant serve the sentence imposed on him in cause no.
1952 consecutively to the revoked deferred and suspended sentences
imposed on him in other convictions?
     Defendant argues that the sentences received as a result of
the revocation proceedings must be merged with the sentence imposed
by the District Court in cause no. 1952. This argument is based
on the defendant's interpretation of Montana's merger statute, 5
46-18-401, MCA (1987), which states in pertinent part:
     Merser of Sentences.    (1) Unless the judge otherwise
     orders:


     (b) whenever a person under suspended sentence or on
     probation for an offense committed in this state is
     sentenced for another offense, the period still to be
     served on suspended or probation shall be merged in any
     new sentence of commitment or probation.



     We agree with defendant's interpretation of 5 46-18-401(1)(b),
MCA (1987).   The defendant was under a suspended sentence in cause
no. 1737 when he received his sentence in cause no. 1952.      He was
also under a deferred sentence for an offense committed in this
State in cause no. 1902 when the District Court sentenced him in
cause no. 1952.      The District Court judge in the judgment and
sentence in cause no. 1952 did not mention either of the other
convictions or the pending motions for revocation.        We find no
judge's order to the contrary on October 23, 1987, and thus the
previous sentences had merged with the sentence in cause no. 1952
at that time.
        The State contends that while the District Court did not refer
to the outstanding sentences in its order in cause no. 1952, the
court in the subsequent revocation proceedings specifically ordered
that "the sentence and judgment in this matter           is strictly
independent from the sentence and judgment found in cause no. 1952
entitled the State of Montana v. Gordon Thiel."      According to the
State, by expressly stating that the sentences were independent,
the District Court clearly         intended that the   sentences run
consecutively.       What    the contention misses   is that at   the
revocation hearing, it was too late for any provision that the
sentences be served consecutively.         Our decision in In re the
Petition of Arledge         (1988), 232 Mont. 450, 756 P.2d 1169 is
factually distinguishable from this case and has no application
here.
    Accordingly, we         reverse with   the instructions that the
sentences imposed in cause nos. 1737 and 1902 should be served
concurrently with the sentences in cause no. 1952.
We Concur:


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