                            No.    96-208
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1997


STATE OF MONTANA,
         Plaintiff and Respondent,
    v.
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PHILLIP DANIEL SARVER,
         Defendant and Appellant.




APPEAL FROM:   District Court of the Fifth Judicial District,
               In and for the County of Jefferson,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Phillip Daniel Sarver, Deer Lodge, Montana (pro se)
          For Respondent:
               Joseph P. Mazurek, Attorney General, Patricia J.
               Jordan, Assistant Attorney General, Helena, Montana;
               Valerie D. Wilson, Jefferson County Attorney,
               Boulder, Montana


                            Submitted on Briefs: February 20, 1997
                                         Decided: March 11, 1997
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
      Appellant Phillip Daniel Sarver (Sarver) appeals the decision
of the Fifth Judicial District Court, Jefferson County, denying his
petition for post-conviction relief. We affirm.
      The sole issue raised on appeal is whether the District Court
erred in denying Sarver's petition for post-conviction relief.
      In 1987, Sarver was convicted of three counts of felony theft.
The District Court sentenced Sarver to three concurrent ten-year
terms, but suspended the sentences provided he comply with standard
probation conditions.
      In 1991, the State filed a petition to revoke Sarver's
suspended sentence because Sarver had violated the conditions of
his probation.    On April 25, 1993, the District Court held a
hearing on the petition to revoke probation. Sarver was present at
this hearing with counsel, and he admitted to some, if not all, of
the probation violations asserted. The District Court then revoked
his   suspended sentence and    reimposed the   sentence of   three
concurrent ten-year terms to be served in the Montana State Prison,
less time served.    Sarver did not appeal the revocation of his
probation.
                                 2
     On March 22, 1996, Sarver filed a petition for post-conviction
relief with the District Court, which the court summarily denied.
Sarver now appeals the denial of his petition for post-conviction
relief.
     On appeal, Sarver asserted the following alleged errors in
support of his petition for post-conviction relief:
      1.   The District Court's summary denial of his petition for
post-conviction relief     indicated a    lack of   deliberation and
resulted in this Court lacking a fully developed record with which
to consider this appeal.
     2.    In resentencing him, the District Court failed to credit
Sarver with the time elapsed while on probation, or to set forth
reasons for refusing to do so.
      3.   The District Court lost the jurisdictional authority to
revoke Sarver's probation due to the lapse of four years between
imposition of the original sentence and the State's petition to
revoke the same.
      The State responds that Sarver is prohibited from raising any
of   the above-listed alleged errors in a petition         for post-
conviction relief because he could have raised all these issues in
a direct appeal but did not do so.       The State therefore contends
that the District Court's summary denial of Sarver's petition was
proper because his petition was and is procedurally barred.
      Section 46-21-101,MCA, allows a convicted individual to file
a petition for post-conviction relief if he or she believes the
sentence received is invalid for jurisdictional, constitutional, or
other legal reasons.   State v. Christensen (1995), 274 Mont. 326,
328, 907 P.2d 970, 971. However,
     [wlhen a petitioner has been afforded a direct appeal of
     the petitioner's conviction, grounds for relief that
     could reasonably have been raised on direct appeal may
     not be raised in the original or amended petition.
Section 46-21-105(2), MCA.
     The State asserts that Sarver could have raised the two issues
which relate to the court's revocation of his probation by directly
appealing that revocation.    Since he did not do so, the State
contends that his petition is procedurally barred by      §   46-21-
lO5(2), MCA.
     Sarver responds by arguing that 5 46-21-105(2),MCA, does not
require a petitioner to have raised all possible issues in a direct
appeal.   Rather, Sarver argues:
     Section 46-21-105(2), MCA, would prevent, or bar, a
     petitioner from raising additional issues in a subsequent
     petition that could have been raised in an original
     petition. It is obvious that the legislature's intent
     was not to bar a petitioner from filing post-conviction
     simply because he had an opportunity to file a direct
     appeal. Rather, § 46-21-105(2), MCA, is to require a
     petitioner to include all issues in an original petition,
     thus preventing the filing of successive and subsequent
     petitions which include other, not previously presented
     issues which could have been raised in the original
     petition.   To [hold] otherwise would void the post-
     conviction act, in that nobody would ever be able to file
     a post-conviction petition as most, if not all, cases
     have the opportunity to file a direct appeal.
(Emphasis added.) Sarver misreads the statute
     We have repeatedly held that    §   41-21-105(2), MCA, bars a
petitioner from raising in a petition for post-conviction relief
those issues which could have been raised by direct appeal.      See
Christensen, 907 P.2d 970; Vernon Kills On Top v. State (19961, 928
P.2d 182, 53 St.Rep. 1197; State v. Moorman (1996), 928 P.2d 145,
53 St .Rep. 1173; In re the Petition of Manula (1993), 263 Mont.
166, 866 P.2d 1127.         This rule "preserves the integrity of the
trial and direct appeal and prevents abuse of the post-conviction
relief process." Moorman, 928 P.2d at 148 (citing State v. Gorder
(IggO), 243 Mont. 333, 792 P.2d 370).          It also accomplishes the
stated purpose of the post-conviction relief statutes, which is
     to bring together and consolidate into one simple statute
     all the remedies, bevond those that are incident to the
     usual orocedures of trial and review, which are at
     present available for challenging the validity of a
     sentence of imprisonment.
Commission       Comments   to   5   46-21-101, MCA   (emphasis added).
Moreover,    §   46-21-105(2), MCA, by its plain language, bars any
claims which could have been raised in a direct apoeal, not merely
those which could have been raised in an earlier post-conviction
petition.
     We agree that the legislature did not intend to bar an
individual from filing a post-conviction relief petition merely
because he or she has already been afforded an appeal, and, indeed,
that is not the effect of the provision in question. Rather, 5 46-
21-105(2), MCA, prevents duplication of litigation and reinforces
the importance of the direct appeal by requiring a defendant to
raise all possible alleged errors in an appeal. An individual who
was afforded a direct appeal may still file a petition for post-
conviction relief and assert any grounds which could & have been
raised in the appeal.
     Sarver argues that this interpretation effectively "voids" the
post-conviction relief provisions of the Montana code because
"nobody would ever be able to file a post-conviction petition as
most, if not all, cases have the opportunity to file a direct
appeal."     Again, Sarver misreads the statute.     Section 46-21-
105 (2), MCA, does not prohibit a defendant who has been afforded an
appeal from filing a petition for post-conviction relief; it merely
requires that the defendant first raise all possible arguments in
a direct appeal.   If he or she fails to do so, the arguments which
could have been presented on appeal will not be heard in a petition
for post-conviction relief.
     The State is correct in asserting that Sarver's arguments are
procedurally barred by    §               ,
                              46-21-105(2) MCA, and, therefore, the
District Court did not err in dismissing the petition.
     Affirmed.




We Concur:          , -
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