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                                                                 No. 99-178

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 245N




STATE OF MONTANA,

Plaintiff and Respondent,

v.

CHARLES JAY DEVLIN,

Defendant and Appellant.




                                                           APPEAL FROM: District Court of the Fourth Judicial
                                                           District,

In and for the County of Missoula,

Honorable Douglas G. Harkin, Judge Presiding.




COUNSEL OF RECORD:

For Appellant:

Charles J. Devlin, Pro Se, Deer Lodge, Montana

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For Respondents:

Honorable Joseph P. Mazurek, Attorney General; Carol Schmidt,

Assistant Attorney General; Helena, Montana

Fred Van Valkenburg, County Attorney; Betty Wing, Deputy

County Attorney; Missoula, Montana




Submitted on Briefs: September 2, 1999

Decided: October 14, 1999

Filed:




__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ Charles Jay Devlin was convicted of bail jumping, classified as a persistent felony
offender, and sentenced to 20 years in the Montana State Prison. Upon sentencing,
the District Court credited him 119 days for jail time served. Devlin subsequently
filed a motion for credit for time served and correction of sentence; however, his
motion was denied. On appeal, Devlin argues that he should have been credited 547

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days, pursuant to § 46-18-403, MCA. We dismiss.

¶ The issue Devlin presents is whether the District Court erred in denying him credit
for time served and for correction of sentence.

                              FACTUAL AND PROCEDURAL BACKGROUND

¶ Devlin was charged in the Fourth Judicial District Court, Missoula County, with
burglary, obstructing a peace officer and bail jumping. By State's motion, the first
two charges were dismissed. Devlin pled guilty to bail jumping.

¶ On June 26, 1995, the District Court sentenced Devlin to a term of 10 years at the
Montana State Prison. After declaring him a persistent felony offender pursuant to
Title 46, Chapter 18, Part 5, MCA, the District Court sentenced him to an additional
10 years. The two sentences ran consecutively with each other and consecutively with
a sentence Devlin already was serving at the Montana State Prison for a previous
conviction. The District Court suspended the two said sentences on certain terms and
conditions, which included the following:

2. That the Defendant shall never knowingly at any time during the period of suspension,
engage in any conduct whatsoever offensive to the law[] . . . ;

...

7. That the Defendant shall not drink or possess any alcoholic beverages and the
Defendant shall not use any illegal drugs.




¶ On or about January 31, 1997, Devlin was released from the Montana State Prison
for his previous conviction. However, on February 4 and 5, 1997, Devlin was arrested
twice for two separate DUI's.

¶ As a result, the State filed a petition to revoke Devlin's suspended sentences. The
District Court granted the State's petition and in a January 6, 1998, judgment
sentenced Devlin to a term of 20 years in the Montana State Prison with a credit for
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119 days of jail time he intermittently served on the charge of bail jumping.

¶ On November 24, 1998, Devlin filed a motion in the District Court for credit for
time served and correction of sentence. He argued, as he does now, that he is entitled
to additional credit for time served whether the time he served resulted from the
offense for which his sentence was imposed or from another conviction for which a
sentence was imposed. Section 46-18-403(1), MCA, provides that:

Any person incarcerated on a bailable offense and against whom a judgment of
imprisonment is rendered must be allowed credit for each day of incarceration prior to or
after conviction, except that the time allowed as a credit may not exceed the term of the
prison sentence rendered.




¶ In a February 5, 1999, order the District Court denied Devlin's motion without
explanation. On February 17, 1999, Devlin appealed the District Court's order.
Devlin argues that he should be credited 547 days.

                                                             DISCUSSION

¶ Did the District Court err in denying Devlin credit for time served and for
correction of sentence?

¶ Without reaching the merits of this case, we consider the procedural bars which
prohibit Devlin from a successful resolution of this issue. Due to the procedural bars,
we cannot address Devlin's appeal.

¶ Rule 5(b), M.R.App.P., provides that an appeal from a judgment in a criminal case
must be made within 60 days. Devlin filed his notice of appeal only days after the
District Court denied his motion. However, in denying his motion, the District Court
did not recalculate the credit he received for time served or make any modifications.
Thus, in effect, Devlin appeals the District Court's January 6, 1998, judgment in
which credit was given. Therefore, it is from the District Court's January 6, 1998,
judgment that 60 days commenced. That was more than one year before Devlin filed

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this appeal. Since Devlin does not make a timely appeal, we lack jurisdiction to
address this issue. See State v. Richards (1997), 285 Mont. 322, 326-27, 948 P.2d 240,
242-43.

¶ We consider whether there is another procedural avenue under which we can
determine this matter. Devlin suggests that Title 46, Chapter 21, MCA, could afford
him postconviction relief despite the language of § 46-21-105(2), MCA, which
provides that "[w]hen a party has been afforded the opportunity for a direct appeal
of the petitioner's conviction, grounds for relief that were or could reasonably have
been raised on direct appeal may not be raised, considered, or decided in a
proceeding brought under this chapter." He argues that § 46-21-105(2), MCA,
should not apply because the failure to raise the issue of credit for time served on a
timely direct appeal was no fault of his own. He faults defense counsel and the State.
However, Devlin presents no facts to support his assertion. Under the plain language
of the statute, Devlin's action is not entitled to a review for postconviction relief.

¶ We reach a similar conclusion when we consider whether Devlin's action may be
reviewed as a petition for a writ of habeas corpus. The applicability of a writ of
habeas corpus is limited by § 46-22-101(2), MCA, which provides that:

The writ of habeas corpus is not available to attack the validity of the conviction or
sentence of a person who has been adjudged guilty of an offense in a court of record and
has exhausted the remedy of appeal. The relief under this chapter is not available to attack
the legality of an order revoking a suspended or deferred sentence.

(Emphasis added.)

¶ The State argues that Devlin's action cannot be considered a petition for a writ of
habeas corpus because he is attacking the legality of the District Court's order
revoking his suspended sentence. Devlin does not offer an opposing argument.
Because we have already concluded that Devlin's action attacks the District Court's
January 6, 1998, judgment revoking his suspended sentence and giving him credit for
time served, a petition for a writ of habeas corpus is procedurally barred.

¶ Devlin suggests that we should overlook these and other procedural errors under
the plain error doctrine to protect him from prejudice against his substantial rights.
However, Devlin cites no authority to apply the plain error doctrine here, and we


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know of none. The plain error doctrine has had only limited application in Montana
law, and we have no reason to expand it.

¶ For these reasons, we dismiss Devlin's appeal.

/S/ J. A. TURNAGE



We concur:

/S/ JIM REGNIER

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY




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