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State v. George12/30/1986
Submitted on Briefs September 25, 1986.
This is the second time George's case has come before this Court. See State v. George (Mont. 1986), [219 Mont. 377,] 711 P.2d 1379, 43 St.Rep. 26. Briefly recounted, on December 9, 1984, George was stopped by Helena police for driving erratically. George was also driving without a valid license and had no proof of insurance. On May 6, 1985, George was convicted by jury in the First Judicial District, Lewis and Clark County, of driving after having been adjudged an habitual traffic offender. On July 15, 1985, George was sentenced to one year imprisonment in the county jail. George failed to make a timely appeal of his sentence. However, George did appeal his conviction. We affirmed the conviction on January 7, 1986.
When George was convicted of driving after having been adjudged an habitual traffic offender, he was also on a deferred sentence for criminal mischief. Because of his habitual offender conviction, his deferred sentence was revoked and George was sentenced to five years in prison with three suspended.
On March 15, 1986, George moved to amend judgment to allow the two sentences to run concurrently, pursuant to Section 46-18-401, MCA, and to credit the time served in the county jail to his prison term. The Lewis and Clark County District Court denied the motion on May 14, 1986. George appeals the denial.
We affirm the District Court.
Defendant George raises a single issue for our review: Did the District Court abuse its discretion when it denied George's motion to amend judgment?
George admits that he is an habitual traffic offender. He also admits that the District Court was justified in sentencing him to a year in the county jail, but requests that his habitual offender sentence run concurrently with his criminal mischief sentence. In Dahlman v. District Court (Mont. 1985), [215 Mont. 470, ] 698 P.2d 423, 425, 42 St.Rep. 550, 552, we held that a trial judge has no jurisdiction to vacate or modify a defendant's sentence after a valid sentence had been imposed, unless specifically authorized by statute.
George argues that Section 46-18-401, MCA, specifically authorizes modification of his sentence. However, George also admits that the statute gives a sentencing judge the discretion to not merge a new sentence with an existing sentence. Section 46-18-401, MCA, provides:
"(1) Unless the judge otherwise orders
"(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.
"(3) If an unexpired sentence is merged pursuant to subsection (1), the court which imposed such sentence shall modify it in accordance with the effect of the merger." [Emphasis added.]
The sentencing judge's discretion is therefore limited to merger of sentence. In the absence of merger, the statute does not authorize modification of sentence. However, George tries to equate "merger of sentence" and "modification of sentence."
The terms "merger" and "modification" are distinct. "Merger" is the fusion of one sentence into another sentence. In contrast, "modification" is the alteration of the details of a single sentence. No statute authorizes the modification of George's sentence. Under the rule of Dahlman, we find no merit in his motion to amend judgment.
Alternatively, we shall consider George's present appeal as a petition for post-conviction relief. In Dahlman, 698 P.2d at 425, we stated: "However, had
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