About Bill -- Links
HOUSE BILL NO. 115
INTRODUCED BY D. MCGEE
BY REQUEST OF THE DEPARTMENT OF CORRECTIONS
AN ACT INCREASING THE MAXIMUM COMMITMENT TO THE DEPARTMENT OF CORRECTIONS; REQUIRING THAT ALL BUT THE FIRST 5 YEARS OF A COMMITMENT TO THE DEPARTMENT BE SUSPENDED; ALLOWING THE COURT TO SENTENCE AN OFFENDER DIRECTLY TO THE BOOT CAMP INCARCERATION PROGRAM; ALLOWING A PROBATION AND PAROLE OFFICER TO PROVIDE ORAL AUTHORIZATION TO ANOTHER OFFICER WITH THE POWER TO ARREST A PROBATIONER OR A PAROLEE IF THE PROBATION AND PAROLE OFFICER DELIVERS A WRITTEN STATEMENT TO THE PLACE OF DETENTION WITHIN 12 HOURS OF THE ARREST; ALLOWING A PROBATION AND PAROLE OFFICER TO IMPOSE NO MORE THAN A 30-DAY SANCTION FOR DEFENDANTS WHO HAVE VIOLATED CONDITIONS OF PROBATION; PROVIDING FOR A PROBATION VIOLATOR PRISON DIVERSION PROGRAM; SPECIFYING THAT AN ONSITE HEARING IS NOT REQUIRED IF A DEFENDANT HAS BEEN CHARGED WITH A VIOLATION OF THE LAW; ESTABLISHING A $360 A YEAR MAXIMUM SUPERVISORY FEE PAYABLE BY A PROBATIONER OR PAROLEE; ALLOWING THE IMPOSITION OF A SUSPENDED SENTENCE UPON SUCCESSFUL COMPLETION OF THE BOOT CAMP INCARCERATION PROGRAM; CHANGING THE ELIGIBILITY REQUIREMENTS FOR PARTICIPATION IN THE BOOT CAMP INCARCERATION PROGRAM; AMENDING SECTIONS 46-18-201, 46-23-1011, 46-23-1012, 46-23-1023, 46-23-1024, 46-23-1031, 53-30-401, AND 53-30-403, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 46-18-201, MCA, is amended to read:
"46-18-201. Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:
(a) defer imposition of sentence, except as provided in 61-8-734 for sentences for driving under the influence of alcohol or drugs or as provided in 61-6-304, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:
jail detention center base release;
jail time incarceration in a detention center not exceeding 180 days;
(iii) conditions for probation;
(iv) payment of the costs of confinement;
(v) payment of a fine as provided in 46-18-231;
(vi) payment of costs as provided in 46-18-232 and 46-18-233;
(vii) payment of costs of court-appointed counsel as provided in 46-8-113;
(viii) with the approval of the facility or program, an order that the offender be placed in a community corrections facility or program as provided in 53-30-321;
(ix) with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, an order that the offender be placed in a prerelease center or prerelease program for a period not to exceed 1 year;
(x) community service;
(xi) home arrest as provided in Title 46, chapter 18, part 10;
(xii) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;
(xiii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116;
(xiv) with the approval of the department of corrections and with a signed statement from an offender that the offender's participation in the boot camp incarceration program is voluntary, an order that the offender complete the boot camp incarceration program established pursuant to 53-30-403; or
(xv) any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)
(b) suspend execution of sentence for a period up to the maximum sentence allowed or for a period of 6 months, whichever is greater, for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (1)(a).
(c) impose a fine as provided by law for the offense;
(d) require payment of costs as provided in 46-18-232 or payment of costs of court-appointed counsel as provided in 46-8-113;
(e) impose a county
jail detention center or state prison sentence, as provided in Title 45, for the offense; or
commit the defendant commit:
(i) an offender not referred to in subsection (1)(f)(ii) to the department of corrections
for a period not to exceed 5 years
for placement in an appropriate correctional facility or program; however, all but the first 5 years of the commitment to the
department of corrections must be suspended; or
(ii) a youth transferred to district court under 41-5-206 and found guilty in the district court of an offense enumerated in 41-5-206 to the department of corrections for a period determined by the court for placement in an appropriate correctional facility or program;
(f)(g) with the approval of the facility or program, order the offender to be placed in a community corrections facility or
program as provided in 53-30-321; (g)(h) with the approval of the prerelease center or prerelease program and confirmation by the department of
corrections that space is available, order the offender to be placed in a prerelease center or prerelease program for a period
not to exceed 1 year; or (h)(i) impose any combination of subsections (1)(b) through (1)(g) (1)(h).
(2) In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.
(3) If a financial obligation is imposed as a condition under subsection (1)(a), sentence may be deferred for a period not exceeding 2 years for a misdemeanor or for a period not exceeding 6 years for a felony, regardless of whether any other conditions are imposed.
(4) If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are violated, the court shall consider any
elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The
court shall state its reasons in the order. Credit, however, must be allowed for
jail time served in a detention center or home
arrest time already served.
(5) Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended: 45-5-103, 45-5-202(3) relating to aggravated assault, 45-5-302(2), 45-5-303(2), 45-5-401(2), 45-5-502(3), 45-5-503(2) and (3), 45-9-101(2), (3), and (5)(d), 45-9-102(4), and 45-9-103(2).
(6) Except as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.
(7) Except as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.
(8) If the victim was less than 16 years old, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under 45-5-503, 45-5-504, 45-5-505, or 45-5-507 may not be deferred or suspended. Section 46-18-222 does not apply to the first 30 days of the imprisonment.
(9) In imposing a sentence on a defendant convicted of a sexual or violent offense as defined in 46-23-502, the court may not waive the registration requirement provided in Title 46, chapter 23, part 5.
(10) A person convicted of a sexual offense, as defined in 46-23-502, and sentenced to imprisonment in the state prison shall enroll in and complete the educational phase of the prison's sexual offender program. If the person is subject to the provisions of 45-5-512, the person shall also, as provided in 45-5-512, undergo medically safe medroxyprogesterone acetate treatment or its chemical equivalent or other medically safe drug treatment that reduces sexual fantasies, sex drive, or both, paid for by and for a period of time determined by the department of corrections. The period may not exceed the period of state supervision of the person.
(11) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program or a prerelease center or prerelease program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the court subsequently sentences the offender to a state prison, the court shall state the reasons why it did not select an alternative to imprisonment, based on the criteria contained in 46-18-225.
(12) If a felony sentence includes probation, the department of corrections shall supervise the defendant unless the court specifies otherwise.
(13) Except as provided in 46-18-222, a provision of this section that conflicts with 46-18-219 does not apply to a person sentenced under 46-18-219."
Section 2. Section 46-23-1011, MCA, is amended to read:
"46-23-1011. Supervision on probation. (1) The department shall supervise persons during their probation period in accord with the conditions set by a court.
(2) A copy of the conditions of probation must be signed by the probationer and given to the probationer and the probationer's probation and parole officer, who shall report on the probationer's progress under rules of the court.
(3) The probation and parole officer shall regularly advise and consult with the probationer to encourage the probationer to improve the probationer's condition and conduct and shall inform the probationer of the restoration of rights on successful completion of the sentence.
(4) The probation and parole officer may recommend and a court may modify any condition of probation or suspension of sentence at any time. Notice must be given to the probation and parole officer before any condition is modified, and the officer must be given an opportunity to present the officer's ideas or recommendations on any modification. A copy of a modification of conditions must be delivered to the probation and parole officer and the probationer. Waiver or modification of restitution may be ordered only as provided under the provisions of 46-18-246.
(5) The probation and parole officer shall keep records as the department or the court may require.
(6) (a) Upon recommendation of the probation and parole officer, a court may conditionally discharge a probationer from supervision before expiration of the probationer's sentence if:
(i) the court determines that a conditional discharge from supervision:
(A) is in the best interests of the probationer and society; and
(B) will not present unreasonable risk of danger to the victim of the offense; and
(ii) the offender has paid all restitution and court-ordered financial obligations in full.
(b) Subsection (6)(a) does not prohibit a court from revoking the order suspending execution or deferring imposition of sentence, as provided in 46-18-203, for a probationer who has been conditionally discharged from supervision.
(c) If the department certifies to the court that the workload of a district probation and parole office has exceeded the optimum workload for the district over the preceding 60 days, the court may not place an offender on probation under supervision by that district office unless it grants a conditional discharge to a probationer being supervised by that district office. The department may recommend probationers to the court for conditional discharge. The court may accept or reject the recommendations of the department. The department shall determine the optimum workload for each district probation and parole office."
Section 3. Section 46-23-1012, MCA, is amended to read:
"46-23-1012. Arrest when violations of probation alleged -- probation compliance plan -- probation violator
prison diversion program. (1) At any time during probation or suspension of sentence, a court may issue a warrant for the
arrest of the defendant for violation of any of the conditions of release or a notice to appear to answer to a charge of
Such The notice shall must be personally served upon the defendant. The warrant shall must authorize all officers
named therein in the warrant to return such the defendant to the custody of the court or to any suitable detention facility
designated by the court.
(2) Any probation and parole officer may arrest
such the defendant without a warrant or may deputize any other officer
with power of arrest to do so by giving the officer oral authorization and within 12 hours delivering to the place of
detention him a written statement setting forth that the defendant has, in the judgment of said the probation and parole
officer, violated the conditions of his the defendant's release. Such A written statement or oral authorization delivered with
the defendant by the arresting officer to the official in charge of a county jail detention center or other place of detention
shall be is sufficient warrant for the detention of the defendant if the probation and parole officer delivers the written
statement within 12 hours of the defendant's arrest. The probation and parole officer, after making an arrest, shall present to
the detaining authorities a similar statement of the circumstances of violation.
(3) Provisions regarding release on bail of
persons a person charged with a crime shall be are applicable to the
defendants arrested under these provisions.
(4) Any probation and parole officer may hold a defendant arrested under subsection (1) without bail for 72 hours. After the arrest of the defendant pursuant to this subsection, a hearings officer for the probation and parole bureau shall hold a hearing within 36 hours of the defendant's arrest. The hearings officer shall determine whether there is probable cause to believe that the defendant has violated a condition of probation and, if probable cause exists, notify the sentencing court and determine an appropriate plan to ensure the defendant's compliance with the conditions of probation. An appropriate plan may include:
(a) holding the defendant for a period of time up to 30 days, with credit for any time served from the time of the arrest to the time of the hearing to determine probable cause;
(b) a request to the court pursuant to 46-23-1011 to modify the defendant's terms or conditions of probation; or
(c) a notification to the court with jurisdiction over the defendant pursuant to 46-23-1013.
(5) The department shall adopt policies and procedures to implement a probation violator prison diversion program. If the department is able to sufficiently sanction a defendant with a term in a detention center as provided in subsection (4)(a) for a proven technical violation that could result in the revocation of a suspended or deferred sentence, the department may pay the expense of the detention center costs and pursue payment of costs by the defendant as provided in 7-32-2245. If the action plan developed for the defendant proceeds as provided in subsection (4)(b) or (4)(c), the expenses of the detention must be paid as provided in 7-32-2242."
Section 4. Program evaluation -- report to legislature. The department shall develop evaluation measures to determine and shall report to the 57th and 58th legislatures whether the probation violator prison diversion program:
(1) enhanced the department's ability to sanction probation violators and divert them from prison;
(2) demonstrated a decline in prison admissions for probation violators; and
(3) demonstrated policies and procedures of graduated sanctions that increased compliance with the conditions of probation and decreased technical violations among probation violators for whom the detention center sanction was used.
Section 5. Section 46-23-1023, MCA, is amended to read:
"46-23-1023. Arrest of alleged parole violator. (1) At any time during release on parole or conditional release, the
department may issue a warrant for the arrest of the
released prisoner parolee for violation of any of the conditions of
release or a notice to appear to answer to a charge of violation. The notice shall must be served personally upon the prisoner
parolee. The warrant shall must authorize all officers named therein in the warrant to return the prisoner parolee to the
actual custody of the penal institution from which he the parolee was released or to any other suitable detention facility
designated by the department.
(2) Any probation and parole officer may arrest the
prisoner parolee without a warrant or may deputize any other officer
with power to arrest to do so by giving him the officer oral authorization and within 12 hours delivering to the place of
detention a written statement setting forth that the prisoner parolee has, in the judgment of the probation and parole officer,
violated the conditions of his the parolee's release. The A written statement or oral authorization delivered with the prisoner
parolee by the arresting officer to the official in charge of the institution from which the prisoner parolee was released or
other place of detention shall be is sufficient warrant for the detention of the parolee or conditional releasee if the probation
and parole officer delivers a written statement within 12 hours of the arrest. The probation and parole officer, after making
an arrest, shall present to the detaining authorities a similar statement of the circumstances of violation.
(3) Pending a hearing, as provided in 46-23-1024 and 46-23-1025, upon any charge of violation the
may, if circumstances warrant, be incarcerated in the institution."
Section 6. Section 46-23-1024, MCA, is amended to read:
"46-23-1024. Initial hearing after arrest. (1) After the arrest of the
prisoner parolee, a hearing must be held within a
reasonable time, unless:
(a) the hearing is waived by the parolee
(b) the parolee has been charged in any court with a violation of the law.
(2) The hearing is an onsite hearing and must be held to determine whether there is probable cause or reasonable
grounds to believe that the arrested parolee has committed acts
which that would constitute a violation of parole conditions.
An independent officer, who need not be a judicial officer, must shall preside over the hearing. The hearing must be
conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest.
The parolee must be given notice of the hearing and must be allowed to appear and speak in the parolee's own behalf and
introduce relevant information to the hearings officer. (2)(3) The hearings officer shall make a summary of what transpires at the hearing in terms of the responses and
position of the parolee and the substance of the documents or evidence given in support of parole revocation. Based on the
information given to the hearings officer, the hearings officer shall determine whether there is probable cause to hold the
parolee for the final decision of the board of pardons and parole as provided in 46-23-1025."
Section 7. Section 46-23-1031, MCA, is amended to read:
"46-23-1031. Supervisory fees -- account established. (1) (a) Except as provided in subsection (1)(b), a probationer or parolee shall pay a supervisory fee of no less than $120 a year and no more than $360 a year, prorated at no less than $10 a month for the number of months under supervision. The fee must be collected by the clerk of the district court with jurisdiction during the probationer's or parolee's period of supervision under this part.
(b) The court or the board may reduce or waive the fee or suspend the monthly payment of the fee if it determines that the payment would cause the probationer or parolee a significant financial hardship.
(2) (a) There is an account in the state special revenue fund for the fees collected under the provisions of this section.
(b) District court clerks shall deduct from the total fees collected pursuant to subsection (1) the administrative cost of collecting and accounting for the fees and shall deposit the remaining amount into the state special revenue account established in subsection (2)(a)."
Section 8. Section 53-30-401, MCA, is amended to read:
"53-30-401. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
(1) "Department" means the department of corrections provided for in 2-15-2301.
(2) "Reduction of sentence" includes changing an incarceration sentence to a
grant of probation suspended sentence."
Section 9. Section 53-30-403, MCA, is amended to read:
"53-30-403. Boot camp incarceration program -- eligibility -- rulemaking. (1) The department shall establish a boot camp incarceration program for offenders incarcerated in a correctional institution.
(2) In order to be eligible for participation in the boot camp incarceration program, an inmate must:
(a) be serving a sentence of at least 1 year in a Montana correctional institution for a felony offense other than a felony
life imprisonment or death, except as provided in 46-18-201(1)(a)(xiv);
be less than 35 years of age obtain the concurrence of the sentencing court; and
(c) pass a physical examination to ensure sufficient health for participation.
(3) The boot camp incarceration program must include:
(a) as a major component, a strong emphasis on work, physical activity, physical conditioning, and good health practices;
(b) a strong emphasis on intensive counseling and treatment programming designed to correct criminal and other maladaptive thought processes and behavior patterns and to instill self-discipline and self-motivation;
(c) a detailed, clearly written explanation of program goals, objectives, rules, and criteria that must be provided to, read by, and signed by all prospective enrollees; and
(d) a maximum enrollment period of 120 days.
(4) (a) Inmate participation in the boot camp incarceration program must be voluntary. The admission of an inmate to the program is discretionary with the department. Enrollment may be revoked only:
(i) at the participant's request; or
(ii) upon written departmental documentation of a participant's failure or refusal to comply with program requirements.
(b) A revocation of program enrollment is not subject to appeal. An inmate may not be admitted to the boot camp incarceration program more than twice.
(5) The department may adopt rules for the establishment and administration of the boot camp incarceration program."
Section 10. Codification instruction. [Section 4] is intended to be codified as an integral part of Title 46, chapter 23, part 10, and the provisions of Title 46, chapter 23, part 10, apply to [section 4].
Section 11. Coordination instruction. If House Bill No. 81 and [this act] are both passed and approved and if both contain amendments to 46-18-201(1)(e), then the amendments to 46-18-201(1)(e) contained in House Bill No. 81 are void.
Section 12. Effective date. [This act] is effective on passage and approval.
Section 13. Applicability. (1) [Section 1] applies to all persons sentenced on or after [the effective date of this act].
(2) [Section 2] applies to all persons under probation or parole supervision on or after [the effective date of this act].
(3) [Sections 8 and 9] apply to all persons under the custody of the department of corrections on or after [the effective date of this act].
- END -
Latest Version of HB 115 (HB0115.ENR)
Processed for the Web on April 20, 1999 (11:28AM)
New language in a bill appears underlined, deleted material appears stricken.
Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of the bill for the bill's primary sponsor.
Status of this Bill | 1999 Session | Leg. Branch Home
This bill in WP 5.1 | All versions of all bills in WP 5.1
Prepared by Montana Legislative Services