                            ?


           IN THE SUPREME COURT OF THE STATE OF MONTANA

                           NO. 95-250

WILLIAM J. GOLLEHON,

          Relator,

                                                   OPINION
                                                     AND
DISTRICT COURT OF THE THIRD                       O R D E R
JUDICIAL DISTRICT OF THE STATE
OF MONTANA, IN AND FOR THE
COUNTY OF POWELL, THE HONORABLE
EDWARD P. McLEAN, Presiding,
          Respondent.

     William J. Gollehon, herein called ~r
Application for Writ of Supervisory Control or Other Appropriate
Writ, and also his Application for Stay of Death Sentence Pending
Consideration of Application for Writ of Supervisory Control. The
respondent, through the office of the Attorney General, has filed
its response to the application for writ of supervisory control.
The applications state that the execution of the death sentence is
now scheduled for June 11, 1995, at Deer Lodge, Montana.
     Pursuant to the requirements of Rule 17, M.R.App.P., this
Court accepts supervisory control and addresses the merits of the
issues raised by Mr. Gollehon in his Petitions.
     Mr. Gollehon contends that the five year time period for
filing a post conviction petition as contained in § 46-21-102, MCA,
controls and overrides any time periods otherwise provided. That
code section provides:
          46-21-102. When petition may be filed. A petition
     for the relief referred to in 46-21-101 may be filed at
     any time within 5 years of the date of the conviction.
In substance Mr. Gollehon contends that the foregoing statute
creates a liberty interest which is superior to the State's right
to carry out the death sentence during the five year period within
which a post conviction petition can be filed. He requests that
this Court rule that Mr. Gollehon has an absolute right to consume
as much of the five year period as he deems necessary in prefiling
investigation and preparation of a post conviction relief petition
so that the State should not be allowed to seek, nor the District
Court to schedule, the execution of the death sentence during the
five year period.
     The State responds by referring first to § 46-19-103(1), MCA,
which addresses the duty of the District Court to reset an
execution date once a stay of execution has expired or been
dissolved. Such statute provides:
          46-19-103.   Execution of death sentence.     (1) In
     pronouncing the sentence of death, the court shall set
     the date of execution which must not be less than 30 days
     or more than 60 days from the date the sentence is
     pronounced. If execution has been stayed by any court
     and the date set for execution has passed prior to
     dissolution of the stay, the court in which the defendant
     was previously sentenced shall, upon dissolution of the
     stay, set a new date of execution for not less than 20 or
     more than 90 days from the day the date is set. The
     defendant is entitled to be present in court on the day
     the new date of execution is set.
Under   this statute, upon the dissolution of the stay, the District
Court   was statutorily mandated to set a new date of execution.
There   is no provision in the statutes which gives the District
Court   discretion to delay execution up to five years while the
defendant contemplates or files a post conviction petition. In
direct contradiction of that theory, the statute provides, "the
court in which the defendant was previously sentenced shall, upon
dissolution of the stay, set a new date of execution for not less
than 20 or more than 90 days from the day the date is set." This
is a clear statutory mandate to set an execution date within 90
days of the date on which the new execution date is set.
     The State contends that the time frame for post conviction
relief as set forth in § 46-21-102, MCA, must be considered in
conjunction with § 46-19-103(1), MCA, which specifically applies to
capital defendants and requires a new execution date every time a
stay of execution is dissolved. We emphasize there is nothing
about this process which prevents Mr. Gollehon from seeking post
conviction relief. From Mr. Gollehon's petitions and briefs, it
clearly appears that he has chosen not to file any post conviction
relief petition up to this point in time. We conclude that a
criminal defendant does not have a constitutional right to the
collateral review which is present through State post conviction
procedures. See Coleman v. Thompson (1991), 501 U.S. 722, 756.
When considering Mr. Gollehonls claims, we conclude that the State
does have a legitimate state interest at stake which justifies the
resetting of an execution date as soon as a stay is dissolved,
which of course requires capital defendants to file collateral
claims, such as post conviction relief claims, without delay. Mr.
Gollehon has chosen not to do so in this case to the date of these
Applications.
     We conclude that     46-21-102, MCA, which provides that a
petition for post conviction relief '!may be filedn at any time
within five years of the date of conviction does not override the
sentencing requirements of § 46-19-103, MCA, which require the
setting of a new date of execution within 90 days from the date of
hearing upon a dissolution of the stay as took place in the present
case. Mr. Gollehon has failed to present statutory provisions
supporting his argument and has also failed to present case
authority which in any way supports his contention.
     We hold that the sentencing provisions of § 46-19-103, MCA,
control and that the post conviction provisions of § 46-21-102,
MCA, do not override the sentencing statute. As a result, we hold
that the Petition for Supervisory Control is denied on the merits
and the Petition for Stay of Death Sentence also is denied on the
merits.
     Notice of this order shall be given by telephone to District
Judge Edward P. McLean, to counsel for Mr. Gollehon and to the
Attorney General for the State of Montana, and in addition written
notice shall be given.fi
     DATED this  25    day of May, 1995.


                                             Chief Justice
