              IN THE SUPREME COURT OF THE STATE OF MONTANA
                               No. 93-221

KENNETH S. ROBBINS,
             Petitioner,
                                                        OPINION
     -v-                                        i         AND
                                                j      “““f
JACK MCCORMICK, Warden,
Montana State Prison,                                               ._-.

             Respondent.



     Kenneth S. Robbins comes before this Court with a Petition for
Writ of Habeas Corpus.     Petitioner was released from Montana State
Prison on April 29, 1993, and is presently serving probation on the
suspended portion of his sentence handed down in March 1982 in
Sheridan County for Criminal Sale of Dangerous Drugs and Criminal
Possession with Intent to Sell.
     The issue raised by Petitioner is whether he has been properly
ordered to serve probation or if, alternatively, he has completely
discharged his sentence.
     The pertinent facts are as follows:            On April 1,   1982,
Petitioner,    on his plea of guilty to Criminal Sale of Dangerous
Drugs and Criminal Possession with Intent to Sell in Sheridan
County,    received a sentence of fifteen years with ten years
suspended.
     On April 28, 1986, while on parole for the Sheridan County
conviction,    Petitioner pled guilty to two counts of Criminal Sale

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of   Dangerous                Drugs        in        Gallatin         County.            On     May       16,    1986,      he

received           two       concurrent           twelve         year       sentences         on      his       plea.      The

District           Court,           however,          failed          to    specify        whether        the     Gallatin

County        SentenCeS              were       to    run     consecutively          or       concurrently        with     the

Sheridan           County           sentences.

        On        June       26,    1986,        Petitioner's              parole     on      the        Sheridan       County

Convictions             was        revoked        and    he      was       ordered       incarcerated            until     his

discharge          date        in        August       1986.

        Petitioner                 was     discharged            from       the     Montana         State        Prison     on

April        29,        1993,       on    the        Gallatin          County       charges,        but     he    then     was

placed       on        ten    years       probation         as    a     result      of    the      ten    year    suspended

sentence           in        Sheridan        County.

        Section              46-18-401, MCA                 (1985),         provides,         in    pertinent           part:

         (1)           Unless       the     judge       otherwise           orders:

        (a) whenever a person serving a term of commitment
        imposed by a court in this state is committed for another
        offense, the shorter term or shorter remaining term shall
        be merged in the other term except as provided in
        subsection  (5); and

        (b) whenever a person under suspended sentence or on
        probation for an offense committed in this state is
        sentenced for   another  offense, the period still to be
        served on suspended sentence or probation shall be merged
        in any new sentence of commitment or probation.

         .    .    .

        (5) Except as provided in this subsection, whenever a
        prisoner is sentenced for an offense committed while he
        was imprisoned in the state prison or while he was
        released on parole or under the supervised release
        program, the   new  sentence   runs   consecutively with the
        remainder of the original sentence. The prisoner starts
        serving the new sentence when the original sentence has
        expired or when he is released on parole under chapter
        23, part 2, of this title in regard to the original
        sentence, whichever  is   sooner.   In the latter case, the

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       sentences run concurrently from the time of his release
       on parole.

       Petitioner       relies   on    Petition   Of   Arledge    (1988),    232   Mont.

450,   756 P.2d 1169,      wherein we held,              in the absence of a lower

court order specifying whether sentences in the Fourth and Eleventh

Judicial Districts were consecutive or concurrent, that § 46-18-

401(l)(a),     MCA,     required      merger      of     sentences    imposed by the

Eleventh Judicial District with those                       imposed by the Fourth

Judicial    District.
       We did not discuss in our opinion, however, the application of

subsection    (5)     where,   as in the instant case,               the    defendant   is

convicted or pleads guilty to a subsequent offense while on parole,
nor did we consider the application of subsection (l)(b), when the

defendant is also under a suspended sentence at the time of his

conviction of or plea to the second offense.
       Because we did not consider the application of subsections

(l)(b) and (5) to the facts in Arledse, we limit our                        holding     on

Issue II in Arledoe to that case.

       In construing a statute where there are several provisions or

particulars,    the function of this Court is, if possible, to adopt

a construction that will give effect to all.                     Section l-Z-101, MCA.

       In the absence of the sentencing court's order to the

contrary,    subsection (5) of the statute provides an exception to

the general requirement of merger set forth in subsection (l)(a),
if the prisoner is sentenced for an offense committed while he is

imprisoned in the state prison or while he is released on parole or


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under the supervised release program.
       In the instant case,    Petitioner     was    on parole from the
Sheridan County sentence when he was sentenced in Gallatin County.
Since the District Court in Gallatin County failed to specify
whether the sentences in that case were to be served consecutively
or concurrently with the Sheridan County sentences, 5 46-18-401(5),
MCA,   required that the "new"         (Gallatin    County)   sentence   run
consecutively    with the remainder       of the     "original"   (Sheridan
County) sentence with the defendant to start serving the "new"
(Gallatin County) sentence when the "original" (Sheridan County)
sentence expired.
       Since Petitioner was also under suspended sentence from
Sheridan County at the time he was sentenced on the Gallatin County
offenses, subsection (l)(b) required the suspended Sheridan County
sentence be merged in the Gallatin County sentences.
       The net result of the application of subsections 46-18-
401(l)(b) and (5), MCA,      is that the Gallatin County sentences
commenced to run when the Petitioner's Sheridan County sentence
expired, taking into consideration that the suspended portion of
the Sheridan County sentence was merged in the Gallatin County
sentences.
       There is no authority under 5 46-18-401(5), MCA, for the State
to require the Petitioner to serve the suspended portion of his
"original" (Sheridan County) sentence consecutively with the end of
his "new"    (Gallatin County) sentence.     The plain language of that
subsection of the statute requires precisely the opposite, that is,

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that the "original" sentence be served before the "new"    sentence

commences to run.
     The Petitioner having been discharged from the Gallatin County

sentence and the suspended portion of the Sheridan County sentence

having been merged in the Gallatin County sentence,

     IT IS HEREBY ORDERED that Petitioner be discharged from his

probation on the Sheridan County sentence.

     DATED this & day of May, 1993.
