                                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 11 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.      More-
over, 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) - b are met."
                  'or'               The defendant here was
convicted of a felony less than a year prior to his com-
mission 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.           ,   5 9 3 P.2d 43, 36 St.Rep. 6 9 6 .   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 J u s t i c 5




              Justices
