                  IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                                  NO. 93-395

LARRY T. MOORE,
                  Petitioner,
         -v-
JACK MCCORMICK, Warden of the
Montana State Prison,
                  Respondent.



         Larry     T. Moore,           Petitioner      herein,         has filed       his     application
requesting          that        this       Court      issue      a     writ       of   habeas          corpus.
Petitioner         is presently           incarcerated         at the Montana State                 Prison   as
a result         of his     conviction            of the offense         of deliberate              homicide,
a felony,         in violation            of 5 45-5-102(1)(a),                 MCA, following           a jury
trial     in Gallatin           County on October             22, 1992 to November 23, 1992,
and the subsequent               revocation         of his     bond.          Petitioner       claims     that
he is      unlawfully           held      because      he has         been denied            bail      pending
appeal     by the District                Court     and that     such denial           is erroneous          as
a matter       of law.       He asks this            Court    to review          the question          of bail
independently,             pursuant        to § 46-22-103,            MCA, which           provides:
        Writ for purpose of bail.      When a person is imprisoned or
        detained    in custody on any criminal       charge for want of
        bail,   such person is entitled     to a writ of habeas corpus
        for the purpose of giving bail upon averring        that fact in
        his petition,     without   alleging    that   he is illegally
        confined.
        The appropriate                standard     of review        when considering           the denial
of an application               for     bail   pending        appeal     is whether          the district

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court       abused               its         discretion                in     denying              the        application.                       Absent

such      abuse,           this           Court        will         not      interfere.                  State         ex rel.             Bretz       v.

Sheriff            of     Lewis              & Clark             County            (1975),          167 Mont.                 363,         365,       539

P.2d       1191,          1192.

          Petitioner                    argues          that        since          he was released                         on bail         prior       to

his       conviction                    and        since          he        was       designated                 as        a non-dangerous

offender            for        purposes                of     eligibility                for       parole             at     sentencing,               he

is     entitled            to bail                pending         appeal           by reason              of        55 46-g-107              and 46-

20-204,           MCA.
           Section              46-g-107,               MCA, provides:
           Release       or detention       pending       appeal     -- revocation         --
           sentencing        hearing.     A person     intending      to appeal     from a
           judgment        imposing      a fine     only      or from      any judgment
           rendered       by a justice's          court     or city      court   must be
           admitted      to bail.     The court shall          order the detention         of
           a defendant         found guilty      of an offense         who is awaiting
            imposition        or execution        of sentence         or a revocation
           hearing      or who has filed       an appeal unless         the court     finds
           that,     if released,      the defendant        is not likely      to flee or
           pose      a danger       to the      safety      of    any person       or the
           community.          (Emphasis    added).

           Under          this           statute,             since          the      Petitioner                 was found               guilty        of

the       felony          offense                 of   deliberate                  homicide              in      district               court,        and

since       he has               filed            an appeal,                the       court        is     required                 to    order        the

detention                 of           the        Petitioner                  "...unless                  LitI             finds          that,        if

released,               the       defendant                 is    not        likely           to    flee...".

           Here,          the          District             Court         made precisely                      the     opposite             finding.

The Court               ruled            that:
           [T]here               is    simply    too much risk         involved     [in granting
           bail].      .         ..I    feel   that   under the evidence           and testimony
           presented,                 [at the bail     hearing]      the Court simply       cannot
           take the               chance of flight         that    is always     present    when a
           capital               crime     has been committed           and there      has been a
           conviction.                    We cannot    allow    this     Defendant     out in the
           community                regardless      of what his friends         and family    say.

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We find            no         abuse        of      discretion                  in         the          Court's            ruling.                    Upon
conviction,                 Petitioner             was no longer                         cloaked            with         the     presumption
of     innocence,              having           been found              guilty            beyond            a reasonable                 doubt          of

a capital            crime.               There         was evidence                      presented                at     the       sentencing

hearing           to the        effect           that      Petitioner                    had no ongoing                    business,                 that
his     financial              assets           were      negligible                  and that              he was divorced                     after

he     was        originally                admitted               to        bail.                    The    District                  Court          was

entitled           to       weigh         all      of     those          factors                 is     assessing               Petitioner's

propensity              for     flight.             Accordingly,                      under           the    statute            cited          by the

Petitioner,              he is          not       entitled              to    bail          pending               appeal.
           The Petitioner                   goes        on to       argue,               however,             that         Section             46-20-

204(2),           MCA,        11 ..mandate[s]
                               .                              a stay               of     sentence                pending           appeal            for

a defendant                 who has             been      admitted               to      bail          during            the     pendency               of

the     case."           We disagree.
           That         section             of      the       Montana                    Code          of     Criminal                 Procedure

provides:
           stay of execution     an6 relief    pending    appeal.    . ..(2)  If an
           appeal   is taken and the defendant         is admitted      to bail,  a
           sentence    of imprisonment      shall   be stayed      by the trial
           court.    (Emphasis   added).

           Petitioner             argues           that      the        statute            is         ambiguous            and,         under         the

rule       of     lenity,           should          be interpreted                         in         his    favor          because             it      is

not     clear       what        the       legislature               intended                by the           words             "defendant               is

admitted           to bail."               In other           words,                  does that             phrase             refer         to bail

before          or after            sentencing?

           We conclude                that         the       statute                is     not          ambiguous.                     The      plain

intendment              of the        language             used         is    that         if,         in   its         discretion              under

§ 46-g-107,                 MCA,      and         on making                  the         required             finding,                 the      trial


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                                                                                                                                         I.




court         admits             the        defendant              to        bail         pending                 appeal,          then              the      court
must       stay          his         sentence              of     imprisonment.
           Since,              as set              forth         above,             the        District                  Court         did           not      admit

Petitioner                     to         bail        pending                 appeal,                  there             is,          obviously,                      no

V'mandateVV under                         f, 46-20-204(2),                         MCA, that                 it      stay        his            sentence              of

imprisonment.                          Petitioner's                   argument                  fails.
           Finally,                  Petitioner                  argues            that         since             the     District                    Court,          at

sentencing,                    designated                  him     a nondangerous                           offender              for           purposes              of

parole            eligibility,                     he is         entitled                 to    bail             pending          appeal.                   Again,

we are            not         persuaded              by Petitioner's                            argument.
           Section                  46-18-404,              MCA provides                        in        pertinent               part:

           Designation           as nondangerous          offender      for purposes         of
           parole    eligibility.            (1) Except as provided          in subsection
            (4), the sentencing             court,   shall    designate      an offender       a
           nondangerous           offender       for purposes       of eligibility         for
           parole    under part          2 of chapter       23 if:    . . . (b) the court
           has determined,            based on any presentence             report   and the
           evidence      presented         at trial    and the sentencing          hearing,
           that the offender            does not rewresent         a substantial      danaer
           to other wersons            or society.       (Emphasis      added).

Implicit                in     the        Petitioner's                   argument                 is        the      proposition                       that       the

criteria                for         admitting              a defendant                    to     bail             pending             appeal               and for

designating                    him        a nondangerous                       offender                   are      the      same.               That        is    not

the       case,          however.

             In     determining                     whether             to     admit             a defendant                     to           bail         pending

appeal,            the         trial         court          is     required                to        find         that         "...the                defendant

is     not        likely             to     flee      or pose             a danger                   to     the         safety           of          any person

or the            community.1t                     As pointed                out       above,              the      District                  Court,          here,
declined                to      make         such          finding,                 ruling                that      there             was            a risk           of

flight.

           On the              other         hand,          § 46-18-404(1)(b),                                   MCA, requires                        the     trial

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court       to     determine             that          I'...         the     offender         does      not       represent            a
substantial             danuer           to other              persons        or society"            after        considering
the presentence                   report     and the evidence                       at trial         and the sentencing
hearing.           This        statute           does not carry                  a requirement                that     the risk
of      flight          be     considered,                     but     it     does        impose        a more            onerous
requirement             that       the court               find       that     the offender             not represent                  a
"substantial             danger"            as opposed to a lldangerl*                           to society.
         Accordingly,                while        it       may be appropriate                    for    the trial             court
to    designate               a     defendant                  nondangerous             for       parole          eligibility
purposes          under the requirements                              of § 46-18-404(1)(b),                    MCA, it          does
not     follow       that,         under         the different                 criteria          of 5 46-g-107,                 MCA,
the court          is    also        required              to admit           the defendant             to bail           pending
appeal.
          For purposes               of the             instant             Application           for      Writ      of      Habeas
corpus,          we hold          that     the District                     Court     correctly            interpreted           and
applied           the        appropriate                 statutes:             that       there         was       substantial
evidence          to support               the    Court's              decision;          that       the      Court       did    not
abuse its           discretion              in denying                 the Petitioner's                 motion         for      bail
pending          appeal:          and that        the Petitioner                    is not illegally                 imprisoned
or otherwise             unlawfully               restrained                 of his       liberty.
          IT IS HEREBY ORDERED, that                                   Petitioner's            Application             for      Writ
of Habeas Corpus
          Dated this
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