State v. R. Kortan, 518 P.3d 1283

In April 2008 Kortan received a deferred five-year sentence in Dawson County Cause No. DC-07-047 (39 days jail credit was awarded at that time).
On December 19, 2008 he was sentenced in two other matters (DC-08-027 and DC-08-04) to DOC terms ordered to run concurrently with DC-07-047; Kortan was incarcerated from December 19, 2008 to July 7, 2010 (565 days).
His DC-07-047 deferred sentence was revoked on February 28, 2013 and he was sentenced to an eight-year commitment (three years suspended); the court did not credit the 39 days nor the 565 days at that time.
Kortan later served the suspended portion, which was revoked again in 2020; at the September 28, 2020 dispositional hearing the court awarded 105 days elapsed time and 181 days prior jail credit but declined to give the claimed additional credit.
Kortan appealed, arguing the sentences had merged when the later concurrent sentences were imposed and § 46-18-203(7)(b), MCA, mandates credit for time served; the State argued he was not serving a sentence in DC-07-047 during the 2008–2010 incarceration and the issue was unpreserved.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kortan was entitled to credit for 565 days incarcerated Dec. 19, 2008–July 7, 2010 because later sentences were ordered concurrent to DC‑07‑047	No — when jailed on DC‑08‑027/DC‑08‑04 he was not serving a sentence in DC‑07‑047 (deferred sentence not a sentence for this purpose); thus no credit owed	Yes — a deferred sentence is a sentence; sentences merged when later concurrent sentences were imposed, so § 46‑18‑203(7)(b) mandates credit for time served	Held for defendant: sentences merged on Dec. 19, 2008; statute requires credit; failure to credit constituted an illegal sentence; remanded to grant additional credit (565 days plus 39 days)
Whether the claim was preserved for appellate review	Unpreserved — counsel conceded at the dispositional hearing that court was not required to give credit	Preserved — defendant actively requested credit; State conceded at least 39 days; the revocation statute constrains sentencing so the argument is reviewable	Held preserved: challenge to an illegal sentence at revocation is reviewable de novo; defendant preserved the claim

State v. McCaslin, 260 P.3d 403 (Mont. 2011) (discussed deferred-sentence sentencing language)
State v. Tomaskie, 157 P.3d 691 (Mont. 2007) (imposition of a deferred sentence constitutes a conviction and final judgment)
State v. Thibeault, 490 P.3d 105 (Mont. 2021) (clarifies prior dicta — deferred imposition is a sentence)
State v. Tracy, 113 P.3d 297 (Mont. 2005) (when court orders concurrent sentences they merge)
State v. Youpee, 416 P.3d 1050 (Mont. 2018) (citing Tracy on merging concurrent sentences)
State v. Seals, 156 P.3d 15 (Mont. 2007) (sentencing upon revocation governed by § 46-18-203)
State v. Tippets, 509 P.3d 1 (Mont. 2022) (calculation of credit for time served is a legal, not discretionary, question)
State v. Parks, 450 P.3d 889 (Mont. 2019) (same: credit for time served is mandatory/legal)
Montco v. Simonich, 947 P.2d 1047 (Mont. 1997) (statutory language: "shall"/"must" is mandatory)
Johnston v. Kirkegard, 310 P.3d 1098 (Mont. 2013) (concurrent sentence/merger principles applied)