                                No. 82-277
               IN THE SUPREME COURT OF THE STATE OF YONTAIJA

                                     1983



PJAYNE L. BAGLEY,

                         Petitioner and Respondent,
     -vs-
HENRY RISLEY,
                         Respondent and Appellant.




APPEAL FROM:    District Court of the Third Judicial District,
                In and for the County of Deer Lodge,
                The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD:
      For Appellant:
                Nick A. Rotering, Dept. of Institutions, Helena,
                Montana

      For Respondent:
                Wayne L. Bagley, pro se, Deer Lodge, Montana
                Aurelio P. Nardi, St. Paul, Minnesota



                                Submitted on Briefs:   September 2, 1983
                                             Decided: December 8, 1983



Filed:
            3 : ' '983


                                Clerk
Mr. Justice John C.         Sheehy delivered the Opinion of the
Court.


      Henry Risley, as warden of the Montana State Prison,
appeals from an order of the District Court of the Third
Judicial District, Powel-1 County, granting habeas corpus to
prison inmate Wayne L. Bagley.           We reverse.
      On April 3, 1970, the petitioner, Wayne L. Bagley, was
convicted of burglary in Treasure County and sentenced to ten
years in the Montana State Prison.           He was released on parole
in December       1971, but    was      subsequently returned to        the
Montana State Prison in November 1976 after beinq convicted
of burglary in Stillwater County and given another ten year
sentence.
      The Board of Pardons revoked the petitioner's parole on
December 29, 1976.         At this time, the Board of Pardons did
not t a k ~ any    action to      forfeit any good        time that the
petitioner may have earned on parole because the Department
of Institutions was under the impression that the existing
law did not permit a parolee to earn good time during parole.
      On May 13, 1-982, the petitioner filed a petition for a
writ of habeas corpus in the District Court contending that
he was entitled to a credit for good time earned while he was
on parole, and that the good time earned while he was on
parole should be applied to reduce the discharge date of his
second sentence, as the second sentence had been merged with
the   first   sentence.           The    District   Court       found   the
petitioner's argument to be persuasive and after finding that
the application of the petitioner's good time earned while he
was   on    parole    to    the      petitioner's      second    sentence,
effectively       discharged    the    petitioner's      second         sentence,
ordered the petitioner released from custody.
        The issues before this Court are:                1)        whether the
petitioner was entitled to receive good time while on parole,
and 2) whether such good time may properly be applied to
reduce     the    petitioner's       discharge    date    on       the     second
sentence.
        Section   53-30-105(3),       MCA,   pertaining       to    good    time
allowances now reads:          "A person may not earn good time under
this section while he is on probation or parole."
     Before the 1981 amendments to section 53-30-105(3) read:
     "This section applies to all persons who are on
     prohation or parole or eligible to be placed on
     probation or parole.     No person convicted and
     sentenced before April 1, 1-955, sha.11have his good.
     time allowance reduced as a result of this
     section. "
     The prison administration believed that this section
acted    only     as   a   savings    clause     applicable        to    inmates
convicted prior to April 1, 1955.            This belief was challenged.
by two inmates in Crist v. Segna (Mont. 1981), 622 P.2d 1028,
38 St.Rep. 150, where this Court held that the plain meaning
of section 53-30-105 is that parolees are entitled to good
time while on parole.           As the 1981 a-mendments were r,ot in
effect at the time that the petitioner in this case was on
parole, the Crist decision is applicable, and the petitioner
is entitled to good time for the period he was on parole.
     The question now arises as to how the good time should
he applied to the petitioner's sentences.                At the hearing on
the writ of habeas corpus before the District Court, the
petitioner contended that because the second sentence was to
be served concurrently with the first sentence, the discharge
date of the first sentence was rendered meaningless and all
good time should be applied to the discharge date of             the
second sentence.
       Section   95-3221, R.C.M.   1947,   as   applicable to    the
petitioner at the time of sentencing provided that:
       "Any prisoner who cornmi-ts a crime while at large
                                    .
       upon parole or conditional release, and who is
       convicted and sentenced therefor, shall serve such
       sentence concurrently with the terms under which he
       was released, unless otherwise ordered by the court
       in sentencing for the new offense."
       The statute directs that the petitioner1s sentences run
concurrently.    The statute does not require that sentences be
merged for the purposes of applying good time.       Good time is
given to inmates as a reward for good conduct.         Stephens v.
Conley (1914), 48 Mont. 352, 138 P. 189.        As such, it is an
incentive to the i.nmates to follow the rules and conditions
set forth by the Department of Institutions and the prison
administration.     Therefore, the manner j n which good time is
                                           .
                                                      -
credited must be consistent with the rationale behind qood
time   .
       Here, the District Court found that if all of the good
time earned by the petitioner while on parole, a total of 866
days, were applied to the petitioner's first sentence, that
sentence would have been discharged 18 days into the second
sentence.    Suppose, then, that the petitioner had continued
to abide by the conditions of his parole a short time longer;
if he had, his first sentence wou1.d have been discharged
before the second sentence had begun and he would not have
been entitled to apply any of the good time he ha.d previously
earned to the second sentence.       Instea.d, the petitioner in
this case willfully violated the conditions of his parole by
committing a burglary; and despite this, he a.rgues that
simply because     his   two   sentences overlap, he    should   be
allowed to app1.y his previously earned qood time to his
second sentence.
     It would seem incongruous that the petitioner be allowed
to benefit from his previous1.y earned good time where he
commits a crime before fully serving his first sentence, and
yet not be allowed the same benefit if the first sentence had
been duly served and discharged while on parole.                   If the
principle    behind      good   time   is       to   be   followed,      the
petitioner's misconduct should not be rewarded by granting
him the good time on his second sentence.
    We ho1.d that the good time earned by the petitioner
while on parole on his first sentence is to be applied to his
first sentence.         Any good time the petitioner has earned
whi1.e serving his second se~tence shall be applied to his
second sentence.      This Court recognizes that the application
of the good time to the petitioner's first sentence will have
no effect on the petitioner's ultimate discharge date.                  This
is proper.     The petitioner cannot draw on a penal checking
account balance of 866 days of previously earned good time in
order   to   make   a    downpayment   against       a    crime   not   yet
perpetrated.    In accord, State v. Ouimette (R.I. 1977), 375
A.2d 209.
     The District Court is reversed and the case remanded for
further proceedings consistent with this opinion.



                                            /        Justice
                                        /




We Concur:
