                                      No. 12494

        I N THE SUPREME C U T O THE STATE O M N A A
                         OR    F           F OTN

                                        1973



JOHN M L O A O,
      AD N D

                                 Petitioner,



ROGER W. CRIST, a s Warden of t h e
Montana S t a t e P e n i t e n t i a r y ,

                                 Respondent.




ORIGINAL PROCEEDING :


Counsel of Record :

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

             Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
              Montana.
             Arnold A. Berger argued, B i l l i n g s , Montana.

     For Respondent:

             Hon. Robert L. Woodahl, Attorney General, Helena,
              Montana.
             J . C . Weingartner, A s s i s t a n t Attorney General, argued,
              Helena, Montana.



                                                  Submitted:   May 17, 1973

                                                  Decided :MAY 2   9 1973
F i l e d : MAY 2 ! 1973
                  ;
M r . Justice Frank I Haswell delivered the Opinion of the Court.
                     .
           This is an original proceeding for a writ of habeas
corpus.     Petitioner seeks to compel the district court to credit
petitioner with six months previously served in the Yellowstone
County jail as a condition of deferment of sentence.
           On September 11, 1970, petitioner plead guilty to assault
in the second degree.    The district court deferred imposition of
sentence and placed petitioner on probation for three years.     On
August 25, 1971, a petition was filed seeking revocation of the
order deferring imposition of sentence by reason of violation by
the defendant of certain terms and conditions of probation.      Sub-
sequently, the district court modified its September 11, 1970
order and ordered that petitioner be confined in the Yellowstone
County jail for a period of six months under the work release
program.
          On October 27, 1972, petitioner was charged with the crime
of burglary.    Thereafter, a petition for revocation of order
deferring imposition of sentence was filed.    A hearing was held
on January 25, 1973.    The district court found that the petitioner
did in fact violate the conditions of his deferred sentence.
Therefore the court revoked petitioner's deferred imposition
of sentence and sentenced the defendant to a term of five years
and nine months in the Montana State Prison for the original
crime of assault in the second degree.    The sentence for second
degree assault in Montana is one to six years or a fine not ex-
ceeding $2,000 or both such fine and imprisonment.    Section 94-
602, R.C.M. 1947.
          Petitioner filed this application for writ of habeas
corpus contending that section 95-2215(a), R.C.M.   1947, requires
that he be credited with the six months previously served as a
condition of deferment against the five years and nine month
sentence subsequently imposed.
           Section 95-2215(a), R.C.M.   1947, provides in pertinent
part :
           "Any person incarcerated on a bailable offense
           and against whom a judgment of imprisonment is
           rendered shall be allowed credit for each day of
           incarceration prior to or after conviction * * *."
           The State, on the other hand, contends that the situation
here is similar to Petition of Williams, 145 Mont. 45, 399
P.2d 732.     In Williams, as here, the defendant was ordered
"jail-based" in the county jail under the work release program.
           The issue in Williams, however, is not the same as the
issue here.      Williams involved the question of "double jeopardy"
which turned on whether the incarceration as a probationary
rule was a "judgment" and "sentence".
           Here, as in State ex rel. Bovee v. District Court,
Mont   .     ,   508 P.2d 1056, 30 St.Rep. 437, the issue is whether
defendant was "incarcerated on a bailable offense" within the
meaning of section 95-2215(a) and thus entitled to "credit for
each day of incarceration prior           after conviction".    This
issue was not answered in Williams.
           Applying Bovee, petitioner is entitled to credit for the
time he served in the county jail as a condition of probation.
           The petition for writ of habeas corpus shall be granted
directing the district court to credit the time served by pe-
titioner in the Yellowstone County jail in 1971 and 1972 as a
condition of deferment of sentence against the sentence subse-
quently imposed on January 25, 1973.




                                            Associate Justice
concur :
