                                               No.    79-18

                     I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA

                                                   1979




I N T H E MATTER O F T H E P E T I T I O N O F
J A M E S E . GRAY




O R I G I N A L PROCEEDING :



C o u n s e l of R e c o r d :


     For P e t i t i o n e r :

            J a c k s o n and K e l l e y , H e l e n a , M o n t a n a

     For R e s p o n d e n t :

           Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,   Montana
           T e d L. M i z n e r , C o u n t y A t t o r n e y , D e e r L o d g e ,   Montana



                                                  Submitted:          November 7,        1979




Filed:       ;to~4
                1        t, I-:
                          .-i;
                                  -*-
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
          This proceeding is a petition for a writ of habeas corpus
seeking release of petitioner James E. Gray on bail pending
determination of his petition for habeas corpus in the District
Court of Powell County.
          In 1977 petitioner was convicted of the crime of forgery
following his plea of guilty in the District Court of Cascade
County.    He filed a petition for a writ of habeas corpus in Powell
County District Court in May, 1978.    That petition attacks alleged
improper and incorrect items in the presentence report which was
prepared for the Cascade County District Court following his plea
of guilty to the forgery charge.    The relief he seeks in that peti-
tion is that his sentence be vacated and that he be returned to
the Cascade County District Court for resentencing.    No attack is
made on petitioner's guilty plea or conviction of forgery.
          After the filing of the petition for habeas corpus in the
Powell County District Court, petitioner was released on bail by
Judge Robert Boyd.     Petitioner remained free on bail for 15 months
during which time he obtained numerous continuances of the hear-
ing date on his petition and lost and regained the services of
his present counsel.    On September 6, 1979 when the Powell County
petition finally came up for hearing, Judge John B. McClernan
revoked petitioner's bail and remanded him to the State Prison
where petitioner is presently incarcerated.
          On October 10, 1979, petitioner filed an original proceed-
ing in this Court seeking a writ of habeas corpus.    He contends
he is entitled to release on bail pending final determination of
proceedings attacking the sentence imposed on his forgeryconviction
by the District Court of Cascade County.
          On October 12 we ordered petitioner to file a legal memo-
randum supporting his petition and directed the Attorney General
to file a written response to the petition with supporting legal
memorandum thereafter.    These have now been filed and the matter
submitted to us for decision.
        Petitioner's claim that he is entitled to release on bail
is grounded on two arguments.    First, he claims that Judge Boyd's
order in 1978 releasing him on bail established the "law of the
case" entitling him to remain free on bail.        Secondly, petitioner
contends that procedural prerequisites in section 46-9-311, MCA,
mandate granting the writ of habeas corpus.
        The "law of the case" principle was discussed by this
Court in a 1976 decision:
        "Under the 'law of the case' principle, judges
        of coordinate jurisdictions sitting in the same
        court and in the same case may not ordinarily
        overrule the decisions of each other. It is
        simply a rule of practice that articulates the
        sound policy that when an issue is once judicially
        determined, that should be the end of the matter
        as far as judges and courts of coordinate juris-
        diction are concerned. The law of the case is
        not an imperative; does not go to the power of the
        court; and does not mean that a court does not have
        discretion to reconsider a ruling made by another
        judge in the same case." State v. Carden (1976),
        170 Mont, 437, 555 P.2d 738. (Citations omitted.)
        Judge McClernan thus had discretion to reconsider the
ruling of Judge Boyd.    Petitioner had remained free for 15 months
due in large part to changes in counsel and continuances result-
ing therefrom.    No progress was being made to resolve his peti-
tion for habeas corpus in the District Court of Powell County.
Where only the sentence but not the conviction is being attacked
in the collateral proceeding, petitioner if successful is not en-
titled to be released but only to be resentenced.       In re Lewis
(1916), 51 Mont. 539, 154 P. 713.     In accord:    Petition of Cheadle
(1964), 143 Mont. 327, 389 P.2d 579; City of Billings v. Trenka
(1970), 155 Mont. 27, 465 P.2d 838.      Additionally, bail may be
increased, reduced, substituted, revoked or the conditions of
bail changed.    Section 46-9-311, MCA
        The contention of petitioner that section 46-9-311, MCA,
mandates granting his petition lacks merit.    There is no pro-
hibition in this statute or elsewhere preventing a court from
acting on its own motion to revoke bail.    The concurrent notice
and revocation given by the District Court in this case was
reasonable under the circumstances as petitioner had left the
state and did not return until the time of hearing.
        The petition for writ of habeas corpus is denied.



                                           Chief Justice




 Justices              (I


Mr. Justice Daniel J. Shea dissents and will file a dissenting
opinion later.
                         DISSENT


                 JUSTICE DANIEL J. SHEA



No. S.C. 79-18

IN THE MATTER OF THE
PETITION OF JAMES E.
GRAY
Mr.    J u s t i c e D a n i e l J. Shea d i s s e n t i n g :


         I would p e r m i t t h e d e f e n d a n t t o remain on b a i l pending

a t r i a l c o u r t r u l i n g on h i s r e q u e s t t o have t h e s e n t e n c e

vacated.

         The m a j o r i t y grounds i t s d e c i s i o n on t h e wording of

s e c t i o n 46-9-311,        MCA, which p e r m i t s a t r i a l c o u r t t o i n c r e a s e ,

reduce o r s u b s t i t u t e b a i l , o r t o revoke b a i l .                 Because a

D i s t r i c t Court h a s s t a t u t o r y a u t h o r i t y t o revoke b a i l , t h e

m a j o r i t y h a s concluded t h a t t h e D i s t r i c t C o u r t must have been

c o r r e c t i n s o doing.          What I d i s a g r e e w i t h , however, i s n o t

t h e s t a t u t e , which c l e a r l y s e t s f o r t h t h e o p t i o n s a v a i l a b l e

t o the t r i a l court; but rather, I object t o the arbitrary

d e c i s i o n of t h e t r i a l c o u r t i n r e v o k i n g t h e b a i l , w i t h o u t any

e x p l a n a t i o n w h a t s o e v e r i n j u s t i f i c a t i o n of i t s a c t i o n .   This

C o u r t s h o u l d n o t g i v e much d e f e r e n c e t o a d e c i s i o n of any

t r i a l c o u r t i f it h a s f a i l e d t o a r t i c u l a t e t h e r e a s o n f o r t h e

a c t i o n taken.

        Too o f t e n t h i s C o u r t must r e v i e w t h e a c t i o n s o f a t r i a l

c o u r t i n s i t u a t i n g where t h e r e i s a b s o l u t e l y no e x p l a n a t i o n

i n t h e record f o r t h e a c t i o n taken.                  I t i s e x a l t i n g form o v e r

s u b s t a n c e i n such c a s e s t o r e s o r t t o t h e time-worth r u l e

t h a t t h e a c t i o n of a t r i a l c o u r t i s presumed t o be c o r r e c t .

What t h i s C o u r t s t a t e d i n B a l l a n t $ n e v. Anaconda Co.                   (1978),

        Mont.             ,   574 P.2d 582, 35 St.Rep.                   171, concerning reasons

f o r d e c i s i o n s , a p p l i e s e q u a l l y t o a d e c i s i o n by a t r i a l c o u r t

revoking a defendant's b a i l .

        Here, we have a s i t u a t i o n where one t r i a l c o u r t g r a n t e d

b a i l t o a d e f e n d a n t and a d e c i s i o n from which t h e S t a t e d i d

n o t o b j e c t ; t h a t i s , once t h e d e c i s i o n was made,the S t a t e d i d

not attempt t o overturn the decision.                              But t h e n a d i f f e r e n t

judge i s c a l l e d i n t o t h e c a s e , and w i t h o u t any e x p l a n a t i o n
whatsoever he revokes defendant's bail bond.
        In defending the trial court's action,the State merely
cites the statute which authorizes the revocation of a bail
bond.     The State then presumes to provide a possible explanation
for the trial judge's decision by suggesting that defendant was
taking advantage of his bail status and was not truly interested
in having a day of reckoning to determine the propriety of
sentence.     It is possible that this is so, but the State does
no service to the law of this State when it seeks to provide a
reason for the action of a trial judge where there is absolutely
no reason stated in the record for the action taken.
        By approving of the action of the trial courts in situations
such as this, this Court is only encouraging the trial courts
to be as fuzzy as possible in arriving at their decisions,
knowing that their so-called discretionary acts will be protected
from the light of day by the invocation of the rule that their
actions are presumed to be correct.    The presumption of correct-
ness should evaporate at the moment the trial court has failed
to disclose for the record the reasons for its decision.    Neither
the parties nor this Court should be required to guess as to
why the trial court revoked the petitioner's bail in this case.
