         IN THE SUPREME COURT OF THE STATE OF MONTAWA


                                  No. 84-104

EARL TAYLOR,
          Petitioner,


HENRY RISLEY,
          Respondent.


                                                                                     - .
                            ORDER AND OPINION
                                                           CLEHil OF SrJPr:LkfPI, COiJRT
                                                                    STATE OF hididi','t?;A
PER CURIAM:
       The State has filed herein a motion for clarification
and declaratory relief regarding this Court's order of May
31, 1984 denying petitioner Earl Taylor's application for a
writ    of    habeas    corpus.        The       State    seeks          prospective
a-pplication only of that part of the order which purportedly
establishes a new rule for computation of parole eli.gibility
for offenders serving consecutive sentences.
       The    petitioner    has     filed    a    response,           also      seeking
clarification and       declaratory relief, but                 contending the
order    is     erroneous     and     should. have             no      application,
retroactive or prospective.
       This Court has examined the motion and the response, as
well as the order of May 31, 1984.
       The    petitioner    was    sentenced       in    the    Cascade County
District Court to twenty years for the crime of robbery, and
five years for the crime of second degree assault, to be
served. consecutively.        In 1975, petitioner pled guilty to the
crime   of     escape   and   received       an    additional            three       year
sentence,        to    he     served   corisecutively     to    the     previous
sentences.
        In    1977,     the   petitioner      was   paroled     on    all   three
offenses.       While on parole, he was convicted of burglary and
theft in the State of Missouri and after serving prison time
there, was returned to the Montana State Prison in December
1981.        At that time, the petitioner's parole was revoked and
324 days of good time allowances earned by him while on
parole were likewise revoked.
     In       the     order   and   opinion    of   May   31,    1.984 denying
petitioner's applica.tion for a writ of habeas corpus, this
Court stated:
     "The action - - Board of Pardons purporting to
                  of the
     release +~etitioner on ~ a r o l e from all three
                                       -            I      -                -
     consecutive sentences - - -is illegal.. All the
                           was and
     time served, whether in prison or on parole,
     applies only against the twenty-year sentence for
     robbery, and petitioner has never begun serving his
     sentence for second degree assault or escape."
The underscored language of the order, beginning "The action
of the Board           . . .",      and concluding     ". . .        was and is
illegal.", is an incorrect statement of the law.                      The action
of the Board of Pardons in pa.roling the petitioner on al.1
three offenses was correct under the long-standing rule of
State ex.re1. Herman and Roy v. Powell (1961), 159 Mont 5831,


    "Nowhere in the Act is it suggested that an inmate
    confined   with    multiple    sentences,  whether
    concurrent or consecutive, is ineligible for
    parole.   On the contrary, section 94-9333 (now
    section 46-23-201, MCA), clearly indicates that
    such an inmate is eligible for parole:

    "A prisoner having served one-fourth (1/4) of his
    term or terms, less good time allowances, shall
    upon parole, be deemed as released on parole until
    the expiration of the maximum term or terms for
    which he was sentenced less good time allowances as
    provided in section 80-740.      (Emphasis added.)
     "The Board could, in order to avoid any ambiguity
     or confusion in the case of consecutive sentences,
     issue one parole to cover the maximum period of
     confinement. The result, of course, would be the
     same. That is, the prisoner would be required to
     serve a period equivalent to one-fourth of the
     combined total of each sentence (less good time)
     before he would be eligible for parole. And, the
     fact that rel-ators' subsequent sentences are escape
     sentences in no way affects this result."
The order of this Court on May 31, 1984 was not intended to
change this rule of computing parole eligiblity for offenders
serving consecutive sentences.
     IT IS ORDERED:
     1.   The language     on page 2     of this Court's May 31,
1984 order, "The action of the Board of Pardons purporting to
release petitioner    on parole from al.1 three consecutive
sentences was and is illegal," is hereby ordered stricken.
The remainder of that order remains intact.
     2.     The   parole   eligibility    of   offenders   serving
consecutive sentences shall continue to be computed under the
rule of Herman, supra.
     3.   The Clerk is directed to mail a true copy hereof to
petitioner personally, to the Attorney General and to the
County Attorney of Cascade County, Montana.
                          A &
                 dD
     DATED this 2- day of
                -           &,  1984

                                 4
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                                 /"       & , ~ 9   hd
                                       Acting Chief Justice
Justices
