                             NO.    94-286
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994

THE STATE OF MONTANA,
           Plaintiff and Respondent,
     -v-
JOHN JACOB LORENZ,
           Defendant and Appellant.




APPEAL FROM:    District Court of the Seventh Judicial District,
                In and for the County of Richland,
                The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                William Hooks, Helena, Montana
           For Respondent:
                Hon. Joseph P. Mazurek, AttorneGyen~nxal,    Crew
                Coughlin,  Asistant   Attorney             Helena,
                Montana;    Gary Ryder,   Deputy Richla'nd  County
                Attorney, Sidney, Montana


                             Submitted on Briefs:       October 13, 1994
                                             Decided:   October 20, 1994




                                   Clerk
Justice          James       C. Nelson           delivered.            the        O'pinion          of    the     Court.


           This       is    an       appeal      from       the       entry        of    the        statement         of    reasons

of     the        Seventh             Judicial            District               Court        supporting              its      prior

designation            of    John         J. Lorenz          (Lorenz)             as     a     dangerous          offender          for

purposes          of        parole         eligibility.                We        reverse       and       remand.

           The       sole    issue         on     appeal      is        whether          the        District          Court    erred

in     interpreting              §    46-18-404(l),                MCA,           to     require,          as     a    matter       of

law,       that       Lorenz         be      designated           as        a     dangerous          offender.

           Lorenz,          along         with       a    codefendant, was                    tried       and     found        guilty

by     a    Richland             County          jury       of      various             felony           sex    offenses.            On

appeal       of       his     sentence, we                reversed          the        designation         of     Lorenz       as     a

dangerous            offender        and     remanded         the       case        to       the    District          Court     "for

additional            findings            articulating             its           reasons           for     a      dangerous          or

nondangerous                 designation."                  State           v.    Wing        and        Lorenz       (1994)        _

Mont.       _,                P.2d __,               51     St.    Rep.          223,     229.

           The       court       did      not        hold    an        additional             hearing,          but,       instead,

entered          a     "Statement               of       Reasons        for        Court's           Designation."                  The

court       stated          that       its       "sole       reason"             for      designating             Lorenz       as     a

dangerous            offender          was       its      interpretation                 of    5     46-18-404,            MCA,      as

requiring            such        a     designation.

           Section          46-18-404(l),                 MCA,        provides,           in       pertinent           part:

            [T]he 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

                                                                  2
      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 District Court interpreted this statute as requiring a

dangerous       designation unless    the defendant   can    satisfy    the
conditions of both       (a) and (b)--i.e. that he not have been

convicted of nor incarcerated for any felony within the preceding

five years and that he does not represent a danger to other persons

or   society.    Since the court found that Lorenz had two prior felony

convictions within the last five years, it concluded that he must
be designated a dangerous offender as a matter of law.           The court

did not make any finding concerning whether Lorenz represented a

substantial danger to other persons or society.
      We review the District Court's conclusions of law to determine

whether its interpretation of the law was correct.                State v.
Christensen (1994),     _ Mont.      -, ___ P.2d _,    51 St. Rep. 542.

Here, we hold that the District Court incorrectly interpreted § 4G-

18-404(l), MCA.
      Lorenz argues, and the State concedes, that our decision in

State v. Dahl (1980), 190 Mont. 207, 620 P.2d 361, is dispositive

of the issue raised in the instant appeal.            In that case the
defendant had a prior felony within five years of the offense

involved in the appeal.     The district court, concluding that it was

required to do so under the statute, designated Dahl as a dangerous

offender at sentencing. -...-.-,
                        Dahl         620 P.2d at 364-65.    We   determined


                                      3
that the district court erred and that, while not a model of
clarity,    the statute is "mandatory only where the circumstances
require the sentencing court to sentence one as a nondangerous
offender."        Dahl
                  - ,        620 P.2d at 365.    We concluded that § 46-18-
404(l),    MCA,     "does not require the judge to designate one as
dangerous; rather, it sets forth the circumstances under which the
defendant must be designated as nondangerous."              -(I 620 P.2d at
                                                            Dahl
365.
       Under the statute, as interpreted in m, if the defendant
satisfies both subsections (a) and (b) of 5 46-18-404(l), MCA, then
he & be designated as a nondangerous offender for parole
eligibility       purposes.        On the other hand,       if the defendant
satisfies the prerequisites of only one of the subsections of § 46-
18-404(1) then the court may, in its discretion, designate the
defendant either dangerous or nondangerous.                  State v.    Miller

(19881,    231 Mont. 497, 517, 757 P.2d 1275, 1287.
       Here,     the   court      erroneously   concluded   that   it   had   no
discretion and that it was required to designate Lorenz a dangerous
offender       as a matter   of law.   Accordingly,    no inquiry was made nor
were any findings entered or reasons articulated as to whether
Lorenz represents a substantial danger to other persons or society.
Where the court refuses to exercise its discretion because it
erroneously concludes that,              as a matter   of law,   it has none,
reversal and remand are required.
       The District Court's designation of Lorenz as a dangerous
offender is, accordingly, reversed, and this case is remanded with

                                          4
instructions that the court hold a hearing on whether Lorenz

represents a substantial danger to other persons or society under

5 46-18-404(1)(b), MCA.         In addition to any presentence     report and
the evidence at trial and sentencing hearing, the court shall

consider,     along with the arguments of counsel, such additional
admissible evidence as the defendant and the State may wish to

offer.      Thereafter the court shall enter its finding designating

Lorenz     either   dangerous   or   nondangerous   for   parole   eligibility
purposes and shall articulate its reasons for such designation.

See,     § 46-18-404(3), MCA; State v. Buckman (1989), 236 Mont. 37,

40, 768 P.2d 1361, 1363; and State v. Belmarez (1991), 248 Mont.
378,     381-82, 812 P.2d 341, 343-44.
       REVERSED and REMANDED for further proceedings consistent with

this opinion.
