HOUSE BILL NO. 209
INTRODUCED BY J. SHOCKLEY
AN ACT SPECIFICALLY PROVIDING FOR A PLEA OF NOLO CONTENDERE IN A CRIMINAL PROSECUTION; AND AMENDING SECTIONS 41-3-609, 45-2-101, 45-5-222, 45-5-621, 45-8-212, 46-1-202, 46-12-201, 46-12-204, 46-12-210, 46-12-211, 46-12-212, 46-13-108, 46-13-109, 46-14-311, 46-16-103, 46-16-105, 46-17-203, 46-18-104, 46-18-201, 46-18-204, 46-18-231, 46-24-203, 53-30-303, 61-11-203, AND 87-1-112, MCA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 41-3-609, MCA, is amended to read:
"41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(a) the parents have relinquished the child pursuant to 42-2-402 and 42-2-412;
(b) the child has been abandoned by the parents as set forth in 41-3-102;
(c) the identity of the parent is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parent have failed;
(d) the parent is convicted of a felony in which sexual intercourse occurred or is a minor adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, the child is born; or
(e) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or
(f) the parent has substantially failed to successfully complete or meet the goals of a treatment plan approved by the court and the child has been in an out-of-home placement for a cumulative total period of 1 year or longer.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of a child caused by the parent;
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and provide for the child;
(e) present judicially ordered long-term confinement of the parent;
(f) the injury or death of a child because of proven abuse or neglect; and
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child's or the parent's physical, mental, and emotional conditions.
(4) A treatment plan is not required under this part upon a finding by the court following hearing if:
(a) two medical doctors or clinical psychologists submit testimony that the parent cannot assume the role of parent;
(b) the parent is incarcerated for more than 1 year and a treatment plan is not practical considering the incarceration; or
(c) the death or serious bodily injury, as defined in 45-2-101(64), of a child caused by abuse or neglect by the parent has
occurred."
Section 2. Section 45-2-101, MCA, is amended to read:
"45-2-101. General definitions. Unless otherwise specified in the statute, all words will be taken in the objective standard rather than in the subjective, and unless a different meaning plainly is required, the following definitions apply in this title:
(1) "Acts" has its usual and ordinary meaning and includes any bodily movement, any form of communication, and when relevant, a failure or omission to take action.
(2) "Administrative proceeding" means any proceeding the outcome of which is required to be based on a record or documentation prescribed by law or in which a law or a regulation is particularized in its application to an individual.
(3) "Another" means a person or persons, as defined in this code, other than the offender.
(4) "Benefit" means gain or advantage or anything regarded by the beneficiary as gain or advantage, including benefit to any other person or entity in whose welfare the beneficiary is interested. Benefit does not include an advantage promised generally to a group or class of voters as a consequence of public measures that a candidate engages to support or oppose.
(5) "Bodily injury" means physical pain, illness, or any impairment of physical condition and includes mental illness or impairment.
(6) "Cohabit" means to live together under the representation of being married.
(7) "Common scheme" means a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense or that affects the same person or the same persons or the property of the same person or persons.
(8) "Computer" means an electronic device that performs logical, arithmetic, and memory functions by the manipulation of electronic or magnetic impulses and includes all input, output, processing, storage, software, or communication facilities that are connected or related to that device in a system or network.
(9) "Computer network" means the interconnection of communication systems between computers or computers and remote terminals.
(10) "Computer program" means an instruction or statement or a series of instructions or statements, in a form acceptable to a computer, that in actual or modified form permits the functioning of a computer or computer system and causes it to perform specified functions.
(11) "Computer services" include but are not limited to computer time, data processing, and storage functions.
(12) "Computer software" means a set of computer programs, procedures, and associated documentation concerned with the operation of a computer system.
(13) "Computer system" means a set of related, connected, or unconnected devices, computer software, or other related computer equipment.
(14) "Conduct" means an act or series of acts and the accompanying mental state.
(15) "Conviction" means a judgment of conviction or sentence entered upon a plea of guilty or nolo contendere or upon a verdict or finding of guilty of an offense rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.
(16) "Correctional institution" means the state prison, county or city jail, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses.
(17) "Deception" means knowingly to:
(a) create or confirm in another an impression that is false and that the offender does not believe to be true;
(b) fail to correct a false impression that the offender previously has created or confirmed;
(c) prevent another from acquiring information pertinent to the disposition of the property involved;
(d) sell or otherwise transfer or encumber property without disclosing a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether the impediment is or is not of value or is or is not a matter of official record; or
(e) promise performance that the offender does not intend to perform or knows will not be performed. Failure to perform, standing alone, is not evidence that the offender did not intend to perform.
(18) "Defamatory matter" means anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or to injury to the person's or its business or occupation.
(19) "Deprive" means:
(a) to withhold property of another:
(i) permanently;
(ii) for such a period as to appropriate a portion of its value; or
(iii) with the purpose to restore it only upon payment of reward or other compensation; or
(b) to dispose of the property of another and use or deal with the property so as to make it unlikely that the owner will recover it.
(20) "Deviate sexual relations" means sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal.
(21) "Document" means, with respect to offenses involving the medicaid program, any application, claim, form, report, record, writing, or correspondence, whether in written, electronic, magnetic, microfilm, or other form.
(22) "Felony" means an offense in which the sentence imposed upon conviction is death or imprisonment in the state prison for any term exceeding 1 year.
(23) "Forcible felony" means any felony that involves the use or threat of physical force or violence against any individual.
(24) A "frisk" is a search by an external patting of a person's clothing.
(25) "Government" includes any branch, subdivision, or agency of the government of the state or any locality within it.
(26) "Harm" means loss, disadvantage, or injury or anything so regarded by the person affected, including loss, disadvantage, or injury to any person or entity in whose welfare the affected person is interested.
(27) A "house of prostitution" means any place where prostitution or promotion of prostitution is regularly carried on by one or more persons under the control, management, or supervision of another.
(28) "Human being" means a person who has been born and is alive.
(29) An "illegal article" is an article or thing that is prohibited by statute, rule, or order from being in the possession of a person subject to official detention.
(30) "Inmate" means a person who engages in prostitution in or through the agency of a house of prostitution.
(31) "Intoxicating substance" means any controlled substance, as defined in Title 50, chapter 32, and any alcoholic beverage, including but not limited to any beverage containing 1/2 of 1% or more of alcohol by volume. Intoxicating substance does not include dealcoholized wine or any beverage or liquid produced by the process by which beer, ale, port, or wine is produced if it contains less than 1/2 of 1% of alcohol by volume.
(32) An "involuntary act" means any act that is:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion; or
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(33) "Juror" means any person who is a member of any jury, including a grand jury, impaneled by any court in this state in any action or proceeding or by any officer authorized by law to impanel a jury in any action or proceeding. The term "juror" also includes a person who has been drawn or summoned to attend as a prospective juror.
(34) "Knowingly"--a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person's own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person's conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. Equivalent terms, such as "knowing" or "with knowledge", have the same meaning.
(35) "Medicaid" means the Montana medical assistance program provided for in Title 53, chapter 6.
(36) "Medicaid agency" has the meaning in 53-6-155.
(37) "Medicaid benefit" means the provision of anything of pecuniary value to or on behalf of a recipient under the medicaid program.
(38) (a) "Medicaid claim" means a communication, whether in oral, written, electronic, magnetic, or other form:
(i) that is used to claim specific services or items as payable or reimbursable under the medicaid program; or
(ii) that states income, expense, or other information that is or may be used to determine entitlement to or the rate of payment under the medicaid program.
(b) The term includes any related documents submitted as a part of or in support of the claim.
(39) "Mentally defective" means that a person suffers from a mental disease or defect that renders the person incapable of appreciating the nature of the person's own conduct.
(40) "Mentally incapacitated" means that a person is rendered temporarily incapable of appreciating or controlling the person's own conduct as a result of the influence of an intoxicating substance.
(41) "Misdemeanor" means an offense for which the sentence imposed upon conviction is imprisonment in the county jail for any term or a fine, or both, or for which the sentence imposed is imprisonment in the state prison for any term of 1 year or less.
(42) "Negligently"--a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Gross deviation" means a deviation that is considerably greater than lack of ordinary care. Relevant terms, such as "negligent" and "with negligence", have the same meaning.
(43) "Nolo contendere" means a plea in which the defendant does not contest the charge or charges against the defendant and neither admits nor denies the charge or charges.
(43)(44) "Obtain" means:
(a) in relation to property, to bring about a transfer of interest or possession, whether to the offender or to another; and
(b) in relation to labor or services, to secure the performance of the labor or service.
(44)(45) "Obtains or exerts control" includes but is not limited to the taking, the carrying away, or the sale, conveyance,
or transfer of title to, interest in, or possession of property.
(45)(46) "Occupied structure" means any building, vehicle, or other place suitable for human occupancy or night lodging
of persons or for carrying on business, whether or not a person is actually present. Each unit of a building consisting of two
or more units separately secured or occupied is a separate occupied structure.
(46)(47) "Offender" means a person who has been or is liable to be arrested, charged, convicted, or punished for a public
offense.
(47)(48) "Offense" means a crime for which a sentence of death or of imprisonment or a fine is authorized. Offenses are
classified as felonies or misdemeanors.
(48)(49) "Official detention" means imprisonment resulting from a conviction for an offense, confinement for an
offense, confinement of a person charged with an offense, detention by a peace officer pursuant to arrest, detention for
extradition or deportation, or any lawful detention for the purpose of the protection of the welfare of the person detained or
for the protection of society. Official detention does not include supervision of probation or parole, constraint incidental to
release on bail, or an unlawful arrest unless the person arrested employed physical force, a threat of physical force, or a
weapon to escape.
(49)(50) "Official proceeding" means a proceeding heard or that may be heard before any legislative, judicial,
administrative, or other governmental agency or official authorized to take evidence under oath, including any referee,
hearing examiner, commissioner, notary, or other person taking testimony or deposition in connection with the proceeding.
(50)(51) "Other state" means any state or territory of the United States, the District of Columbia, and the Commonwealth
of Puerto Rico.
(51)(52) "Owner" means a person other than the offender who has possession of or any other interest in the property
involved, even though the interest or possession is unlawful, and without whose consent the offender has no authority to
exert control over the property.
(52)(53) "Party official" means a person who holds an elective or appointive post in a political party in the United States
by virtue of which the person directs or conducts or participates in directing or conducting party affairs at any level of
responsibility.
(53)(54) "Peace officer" means any person who by virtue of the person's office or public employment is vested by law
with a duty to maintain public order or to make arrests for offenses while acting within the scope of the person's authority.
(54)(55) "Pecuniary benefit" is benefit in the form of money, property, commercial interests, or anything else the
primary significance of which is economic gain.
(55)(56) "Person" includes an individual, business association, partnership, corporation, government, or other legal
entity and an individual acting or purporting to act for or on behalf of any government or subdivision of government.
(56)(57) "Physically helpless" means that a person is unconscious or is otherwise physically unable to communicate
unwillingness to act.
(57)(58) "Possession" is the knowing control of anything for a sufficient time to be able to terminate control.
(58)(59) "Premises" includes any type of structure or building and any real property.
(59)(60) "Property" means any tangible or intangible thing of value. Property includes but is not limited to:
(a) real estate;
(b) money;
(c) commercial instruments;
(d) admission or transportation tickets;
(e) written instruments that represent or embody rights concerning anything of value, including labor or services, or that are otherwise of value to the owner;
(f) things growing on, affixed to, or found on land and things that are part of or affixed to any building;
(g) electricity, gas, and water;
(h) birds, animals, and fish that ordinarily are kept in a state of confinement;
(i) food and drink, samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, prototypes, or models thereof;
(j) any other articles, materials, devices, substances, and any whole or partial copies, descriptions, photographs, prototypes, or models thereof that constitute, represent, evidence, reflect, or record secret scientific, technical, merchandising, production, or management information or a secret designed process, procedure, formula, invention, or improvement; and
(k) electronic impulses, electronically processed or produced data or information, commercial instruments, computer software or computer programs, in either machine- or human-readable form, computer services, any other tangible or intangible item of value relating to a computer, computer system, or computer network, and any copies thereof.
(60)(61) "Property of another" means real or personal property in which a person other than the offender has an interest
that the offender has no authority to defeat or impair, even though the offender may have an interest in the property.
(61)(62) "Public place" means any place to which the public or any substantial group has access.
(62)(63) "Public servant" means any officer or employee of government, including but not limited to legislators, judges,
and firefighters, and any person participating as a juror, advisor, consultant, administrator, executor, guardian, or
court-appointed fiduciary. The term does not include witnesses. The term "public servant" includes one who has been
elected or designated to become a public servant.
(63)(64) "Purposely"--a person acts purposely with respect to a result or to conduct described by a statute defining an
offense if it is the person's conscious object to engage in that conduct or to cause that result. When a particular purpose is
an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the
harm or evil sought to be prevented by the law defining the offense. Equivalent terms, such as "purpose" and "with the
purpose", have the same meaning.
(64)(65) (a) "Serious bodily injury" means bodily injury that:
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ; or
(iii) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.
(b) The term includes serious mental illness or impairment.
(65)(66) "Sexual contact" means any touching of the sexual or other intimate parts of the person of another for the
purpose of arousing or gratifying the sexual desire of either party.
(66)(67) "Sexual intercourse" means penetration of the vulva, anus, or mouth of one person by the penis of another
person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or
anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or
gratifying the sexual desire of either party. Any penetration, however slight, is sufficient.
(67)(68) "Solicit" or "solicitation" means to command, authorize, urge, incite, request, or advise another to commit an
offense.
(68)(69) "State" or "this state" means the state of Montana, all the land and water in respect to which the state of
Montana has either exclusive or concurrent jurisdiction, and the air space above the land and water.
(69)(70) "Statute" means any act of the legislature of this state.
(70)(71) "Stolen property" means property over which control has been obtained by theft.
(71)(72) A "stop" is the temporary detention of a person that results when a peace officer orders the person to remain in
the peace officer's presence.
(72)(73) "Tamper" means to interfere with something improperly, meddle with it, make unwarranted alterations in its
existing condition, or deposit refuse upon it.
(73)(74) "Threat" means a menace, however communicated, to:
(a) inflict physical harm on the person threatened or any other person or on property;
(b) subject any person to physical confinement or restraint;
(c) commit any criminal offense;
(d) accuse any person of a criminal offense;
(e) expose any person to hatred, contempt, or ridicule;
(f) harm the credit or business repute of any person;
(g) reveal any information sought to be concealed by the person threatened;
(h) take action as an official against anyone or anything, withhold official action, or cause the action or withholding;
(i) bring about or continue a strike, boycott, or other similar collective action if the person making the threat demands or receives property that is not for the benefit of groups that the person purports to represent; or
(j) testify or provide information or withhold testimony or information with respect to another's legal claim or defense.
(74)(75) (a) "Value" means the market value of the property at the time and place of the crime or, if the market value
cannot be satisfactorily ascertained, the cost of the replacement of the property within a reasonable time after the crime. If
the offender appropriates a portion of the value of the property, the value must be determined as follows:
(i) The value of an instrument constituting an evidence of debt, such as a check, draft, or promissory note, is considered the amount due or collectible. The figure is ordinarily the face amount of the indebtedness less any portion of the indebtedness that has been satisfied.
(ii) The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is considered the amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
(iii) The value of electronic impulses, electronically produced data or information, computer software or programs, or any other tangible or intangible item relating to a computer, computer system, or computer network is considered to be the amount of economic loss that the owner of the item might reasonably suffer by virtue of the loss of the item. The determination of the amount of economic loss includes but is not limited to consideration of the value of the owner's right to exclusive use or disposition of the item.
(b) When it cannot be determined if the value of the property is more or less than $500 by the standards set forth in
subsection (74)(a) (75)(a), its value is considered to be an amount less than $500.
(c) Amounts involved in thefts committed pursuant to a common scheme or the same transaction, whether from the same person or several persons, may be aggregated in determining the value of the property.
(75)(76) "Vehicle" means any device for transportation by land, water, or air or by mobile equipment, with provision for
transport of an operator.
(76)(77) "Weapon" means any instrument, article, or substance that, regardless of its primary function, is readily capable
of being used to produce death or serious bodily injury.
(77)(78) "Witness" means a person whose testimony is desired in any official proceeding, in any investigation by a grand
jury, or in a criminal action, prosecution, or proceeding."
Section 3. Section 45-5-222, MCA, is amended to read:
"45-5-222. Sentence enhancement -- offenses committed because of victim's race, creed, religion, color, national origin, or involvement in civil rights or human rights activities. (1) A person who has pleaded guilty or nolo contendere to or who has been found guilty of any offense, except malicious intimidation or harassment, that was committed because of the victim's race, creed, religion, color, national origin, or involvement in civil rights or human rights activities or that involved damage, destruction, or attempted destruction of a building regularly used for religious worship, in addition to the punishment provided for commission of the offense, may be sentenced to a term of imprisonment of not less than 2 years or more than 10 years, except as provided in 46-18-222.
(2) An additional sentence prescribed by subsection (1) shall run consecutively to the sentence, except as provided in 46-18-222."
Section 4. Section 45-5-621, MCA, is amended to read:
"45-5-621. Nonsupport. (1) A person commits the offense of nonsupport if the person fails to provide support that the person can provide and that the person knows the person is legally obliged to provide to a spouse, child, or other dependent.
(2) (a) A person commits the offense of aggravated nonsupport if the person has:
(i) the offender has left the state without making reasonable provisions for the support of a spouse, child, or other
dependent; or
(ii) the offender has been previously convicted of the offense of nonsupport.
(b) For purposes of this section, "conviction" means a conviction, as defined in 45-2-101, in this state, conviction for a
violation of a statute similar to this section in another state, or a forfeiture of bail or collateral deposited to secure the
defendant's a person's appearance in court in this state or another state, which forfeiture has not been vacated.
(3) If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control. In determining ability to pay, after an allowance for the person's minimal subsistence needs, the support of a spouse, child, or other dependent has priority over any other obligations of the person.
(4) When a person is ordered to pay support by a court or administrative agency with jurisdiction to enter the order, the support order is prima facie evidence of the person's legal obligation to provide support.
(5) Payment records maintained by the court or administrative agency that issued the support order are prima facie evidence of the amount of support paid and the arrearages that have accrued.
(6) It is not a defense to a charge of nonsupport that any other person, organization, or agency furnishes necessary food, clothing, shelter, medical attention, or other essential needs for the support of the spouse, child, or other dependent.
(7) (a) Except as provided in subsection (7)(b) or (7)(c), a person convicted of nonsupport shall be fined not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.
(b) A person convicted of nonsupport who has failed to provide support under a court or administrative order for 6 months or more or who has failed to provide support in a cumulative amount equal to or in excess of 6 months' support shall be fined not to exceed $5,000 or be imprisoned in the state prison for a term not to exceed 2 years, or both.
(c) A person convicted of aggravated nonsupport shall be fined not to exceed $50,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.
(8) Before trial with the consent of the defendant, on entry of a plea of guilty or nolo contendere, or after conviction, instead of the penalty provided in subsection (7) or in addition to that penalty, the defendant may post a bond, undertaking, or other security. This security must be for a period of 2 years or, in the case of aggravated nonsupport, for a period of 10 years. The court shall fix the sum of the security in an amount sufficient to ensure payment of support by the defendant. After the security is posted, the court shall release the defendant on the condition that the defendant comply with any order for support. If there is no order for support, the court shall order the defendant to pay support to the spouse, child, or other dependent in an amount that is consistent with the defendant's ability to pay and, if applicable, the child support guidelines adopted under 40-5-209.
(9) The bond, undertaking, or other security posted pursuant to subsection (8) must be is forfeited if the defendant fails
to pay support as ordered, and the court may proceed to try the defendant upon the original charge of nonsupport, sentence
the defendant under the original plea or conviction, or enforce a suspended sentence.
(10) As part of any prosecution under this section, the court shall also order the defendant offender to make restitution to
the spouse, the child's caretaker, or any other dependent or to the person or agency that provided support to the spouse,
child, or other dependent. The amount of restitution is the sum of the arrearages payable under a support order or, if there is
no support order, an amount determined reasonable by the court. The terms for payment of restitution must be determined
by the court.
(11) The court may order, in its discretion, any fine levied or any bond forfeited upon a charge of nonsupport paid to or
for the benefit of any person that the defendant offender has failed to support. A bond, undertaking, or other security
forfeited under subsection (9) must be paid to the person or agency entitled to receive support from the defendant offender.
(12) When any a payment of public assistance money has been made for the benefit of a child by the department of
public health and human services under the provisions of Title 53, a representative of the department may sign a criminal
complaint against the person obligated by law to support the child who received the public assistance.
(13) The court may order that a term of imprisonment imposed under this section be served in another facility made
available by the county and approved by the sentencing court. The defendant offender, if financially able, shall bear the
expense of the imprisonment. The court may impose restrictions on the defendant's offender's ability to leave the premises
of the facility and require that the defendant follow the rules of that facility. The facility may be a community-based
prerelease center as provided for in 53-1-203. The prerelease center may accept or reject a defendant an offender referred by
the sentencing court."
Section 5. Section 45-8-212, MCA, is amended to read:
"45-8-212. Criminal defamation. (1) Defamatory matter is anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's or its business or occupation.
(2) Whoever, with knowledge of its defamatory character, orally, in writing, or by any other means communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation and may be sentenced to imprisonment for not more than 6 months in the county jail or a fine of not more than $500, or both.
(3) Violation of subsection (2) is justified if:
(a) the defamatory matter is true;
(b) the communication is absolutely privileged;
(c) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern;
(d) the communication consists of a fair and true report or a fair summary of any judicial, legislative, or other public or official proceedings; or
(e) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with the purpose to further the interest or duty.
(4) A person may not be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or nolo contendere."
Section 6. Section 46-1-202, MCA, is amended to read:
"46-1-202. Definitions. As used in this title, unless the context requires otherwise, the following definitions apply:
(1) "Arraignment" means the formal act of calling the defendant into open court to enter a plea answering a charge.
(2) "Arrest" means taking a person into custody in the manner authorized by law.
(3) "Arrest warrant" means a written order from a court directed to a peace officer or to some other person specifically named commanding that officer or person to arrest another. The term includes the original warrant of arrest and a copy certified by the issuing court.
(4) "Bail" means the security given for the primary purpose of ensuring the presence of the defendant in a pending criminal proceeding.
(5) "Charge" means a written statement that accuses a person of the commission of an offense, that is presented to a court, and that is contained in a complaint, information, or indictment.
(6) "Conviction" means a judgment or sentence entered upon a guilty or nolo contendere plea or upon a verdict or finding of guilty rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.
(7) "Court" means a place where justice is judicially administered and includes the judge of the court.
(8) "Included offense" means an offense that:
(a) is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(b) consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or
(c) differs from the offense charged only in the respect that a less serious injury or risk to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
(9) "Judge" means a person who is vested by law with the power to perform judicial functions.
(10) "Judgment" means an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.
(11) "Make available for examination and reproduction" means to make material and information that is subject to disclosure available upon request at a designated place during specified reasonable times and to provide suitable facilities or arrangements for reproducing it. The term does not mean that the disclosing party is required to make copies at its expense, to deliver the materials or information to the other party, or to supply the facilities or materials required to carry out tests on disclosed items. The parties may by mutual consent make other or additional arrangements.
(12) "New trial" means a reexamination of the issue in the same court before another jury after a verdict or finding has been rendered.
(13) "Notice to appear" means a written direction that is issued by a peace officer and that requests a person to appear before a court at a stated time and place to answer a charge for the alleged commission of an offense.
(14) "Offense" means a violation of any penal statute of this state or any ordinance of its political subdivisions.
(15) "Parole" means the release to the community of a prisoner by a decision of the board of pardons and parole prior to the expiration of the prisoner's term subject to conditions imposed by the board of pardons and parole and the supervision of the department of corrections.
(16) "Peace officer" means any person who by virtue of the person's office or public employment is vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person's authority.
(17) "Persistent felony offender" means an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if:
(a) the previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sentence of imprisonment in excess of 1 year could have been imposed;
(b) less than 5 years have elapsed between the commission of the present offense and either:
(i) the previous felony conviction; or
(ii) the offender's release on parole or otherwise from prison or other commitment imposed as a result of a previous felony conviction; and
(c) the offender has not been pardoned on the ground of innocence and the conviction has not been set aside at the postconviction hearing.
(18) "Place of trial" means the geographical location and political subdivision in which the court that will hear the cause is situated.
(19) "Preliminary examination" means a hearing before a judge for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.
(20) "Probation" means release by the court without imprisonment of a defendant found guilty of a crime. The release is subject to the supervision of the department of corrections upon direction of the court.
(21) "Prosecutor" means an elected or appointed attorney who is vested by law with the power to initiate and carry out criminal proceedings on behalf of the state or a political subdivision.
(22) "Same transaction" means conduct consisting of a series of acts or omissions that are motivated by:
(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective; or
(b) a common purpose or plan that results in the repeated commission of the same offense or effect upon the same person or the property of the same person.
(23) "Search warrant" means an order that is:
(a) in writing;
(b) in the name of the state;
(c) signed by a judge;
(d) a particular description of the place, object, or person to be searched and the evidence, contraband, or person to be seized; and
(e) directed to a peace officer and commands the peace officer to search for evidence, contraband, or persons.
(24) "Sentence" means the judicial disposition of a criminal proceeding upon a plea of guilty or nolo contendere,
verdict, or upon a verdict or finding of guilty.
(25) "Statement" means:
(a) a writing signed or otherwise adopted or approved by a person;
(b) a video or audio recording of a person's communications or a transcript of the communications; and
(c) a writing containing a summary of a person's oral communications or admissions.
(26) "Summons" means a written order issued by the court that commands a person to appear before a court at a stated time and place to answer a charge for the offense set forth in the order.
(27) "Superseded notes" means handwritten notes, including field notes, that have been substantially incorporated into a statement. The notes may not be considered a statement and are not subject to disclosure except as provided in 46-15-324.
(28) "Temporary road block" means any structure, device, or means used by a peace officer for the purpose of controlling all traffic through a point on the highway where all vehicles may be slowed or stopped.
(29) "Witness" means a person whose testimony is desired in a proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding.
(30) "Work product" means legal research, records, correspondence, reports, and memoranda, both written and oral, to the extent that they contain the opinions, theories, and conclusions of the prosecutor, defense counsel, or their staff or investigators."
Section 7. Section 46-12-201, MCA, is amended to read:
"46-12-201. Manner of conducting arraignment -- use of two-way electronic audio-video communication -- exception. (1) Arraignment must be conducted in open court and must consist of reading the charge to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead to the charge. The defendant must be given a copy of the charging document before being called upon to plead. For purposes of this chapter, an arraignment that is conducted by the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be an arraignment in open court.
(2) The court shall inquire of the defendant or the defendant's counsel the defendant's true name, and if the defendant's true name is given as any other than that used in the charge, the court shall order the defendant's name to be substituted for the name under which the defendant is charged.
(3) The court shall determine whether the defendant is under any disability that would prevent the court, in its discretion, from proceeding with the arraignment. The arraignment may be continued until the court determines the defendant is able to proceed.
(4) Whenever the law requires that a defendant in a misdemeanor or felony case be taken before a court for an
arraignment, this requirement may, in the discretion of the court, be satisfied either by the defendant's physical appearance
before the court or by two-way electronic audio-video communication. The audio-video communication must operate so
that the defendant and the judge can see each other simultaneously and converse with each other, so that the defendant and
his the defendant's counsel, if any, can communicate privately, and so that the defendant and his the defendant's counsel are
both physically present in the same place during the two-way electronic audio-video communication. The defendant may
waive the requirement that his the defendant's counsel be in the defendant's physical presence during the two-way electronic
audio-video communication.
(5) A judge may order a defendant's physical appearance in court for arraignment. In a felony case, a judge may not accept a plea of guilty or nolo contendere from a defendant who is not physically present in the courtroom."
Section 8. Section 46-12-204, MCA, is amended to read:
"46-12-204. Plea alternatives. (1) A defendant may plead guilty, or not guilty, or, with the consent of the court and the
prosecutor, nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall
enter a plea of not guilty.
(2) The court may not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary and not the result of force or threats or of promises apart from the plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the prosecutor and the defendant or the defendant's attorney.
(3) With the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty or nolo contendere, reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant must be allowed to withdraw the plea.
(4) The court may not accept a plea of nolo contendere in a case involving a sexual offense, as defined in 46-23-502."
Section 9. Section 46-12-210, MCA, is amended to read:
"46-12-210. Advice to defendant. (1) Before accepting a plea of guilty or nolo contendere, the court shall determine that the defendant understands the following:
(a) (i) the nature of the charge for which the plea is offered;
(ii) the mandatory minimum penalty provided by law, if any;
(iii) the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction; and
(iv) when applicable, the requirement that the court may also order the defendant to make restitution of the costs and assessments provided by law;
(b) if the defendant is not represented by an attorney, the fact that the defendant has the right to be represented by an attorney at every stage of the proceeding and that, if necessary, one will be appointed to represent the defendant;
(c) that the defendant has the right:
(i) to plead not guilty or to persist in that plea if it has already been made;
(ii) to be tried by a jury and at the trial has the right to the assistance of counsel;
(iii) to confront and cross-examine witnesses against the defendant; and
(iv) not to be compelled to reveal personally incriminating information;
(d) that if the defendant pleads guilty or nolo contendere in fulfillment of a plea agreement, the court is not required to accept the terms of the agreement and that the defendant may not be entitled to withdraw the plea if the agreement is not accepted pursuant to 46-12-211;
(e) that if the defendant's plea of guilty or nolo contendere is accepted by the courts, there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and
(f) that if the defendant is not a United States citizen, a guilty or nolo contendere plea might result in deportation from or exclusion from admission to the United States or denial of naturalization under federal law.
(2) The requirements of subsection (1) may be accomplished by the defendant filing a written acknowledgment of the information contained in subsection (1)."
Section 10. Section 46-12-211, MCA, is amended to read:
"46-12-211. Plea agreement procedure -- use of two-way electronic audio-video communication. (1) The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecutor will do any of the following:
(a) move for dismissal of other charges;
(b) agree that a specific sentence is the appropriate disposition of the case; or
(c) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that the recommendation or request may not be binding upon the court.
(2) Subject to the provisions of subsection (5), if a plea agreement has been reached by the parties, the court shall, on the record, require a disclosure of the agreement in open court or, on a showing of good cause in camera, at the time that the plea is offered. If the agreement is of the type specified in subsection (1)(a) or (1)(b), the court may accept or reject the agreement or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subsection (1)(c), the court shall advise the defendant that, if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw the plea.
(3) If the court accepts a plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
(4) If the court rejects a plea agreement of the type specified in subsection (1)(a) or (1)(b), the court shall, on the record, inform the parties of this fact and advise the defendant that the court is not bound by the plea agreement, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if the defendant persists in the guilty or nolo contendere plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
(5) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, a disclosure of the agreement through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be a disclosure in open court. Audio-video communication may be used if neither party objects and the court agrees to its use. The audio-video communication must operate as provided in 46-12-201."
Section 11. Section 46-12-212, MCA, is amended to read:
"46-12-212. Determining accuracy of plea. (1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration.
(2) A defendant who is unwilling to admit to any element of the offense that would provide a factual basis for a plea of
guilty may, with the consent of the court, enter a plea of guilty or may, with the consent of the court and the prosecutor,
enter a plea of nolo contendere to the offense if the defendant considers the plea to be in the defendant's best interest and if
a factual basis exists for the plea and the court determines that there is a factual basis for the plea."
Section 12. Section 46-13-108, MCA, is amended to read:
"46-13-108. Notice by prosecutor seeking persistent felony offender status. (1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender, notice of that fact must be given at or before the omnibus hearing pursuant to 46-13-110.
(2) The notice must specify the alleged prior convictions and may not be made known to the jury before the verdict is returned except as allowed by the Montana Rules of Evidence.
(3) If the defendant objects to the allegations contained in the notice, the judge shall conduct a hearing to determine if the allegations in the notice are true.
(4) The hearing must be held before the judge alone. If the judge finds any allegations of the prior convictions are true, the accused must be sentenced as provided by law.
(5) The notice must be filed and sealed until the time of trial or until a plea of guilty or nolo contendere is given by the defendant."
Section 13. Section 46-13-109, MCA, is amended to read:
"46-13-109. Notice by prosecutor of other crimes, wrongs, or acts. (1) Except for good cause shown, if the prosecutor intends to use evidence of other crimes, wrongs, or acts pursuant to Rule 404(b), Montana Rules of Evidence, notice must be given at or before the omnibus hearing held pursuant to 46-13-110.
(2) The notice must specify the other crimes, wrongs, or acts and must include a statement as to the purpose for which the evidence is to be offered.
(3) The notice must be filed and sealed until the time of trial or until a plea of guilty or nolo contendere is entered by the defendant."
Section 14. Section 46-14-311, MCA, is amended to read:
"46-14-311. Consideration of mental disease or defect in sentencing. Whenever a defendant is convicted on a verdict of guilty or a plea of guilty or nolo contendere and claims that at the time of the commission of the offense of which convicted the defendant was suffering from a mental disease or defect that rendered the defendant unable to appreciate the criminality of the defendant's behavior or to conform the defendant's behavior to the requirements of law, the sentencing court shall consider any relevant evidence presented at the trial and shall require additional evidence as it considers necessary for the determination of the issue, including examination of the defendant and a report of the examination as provided in 46-14-202 and 46-14-206."
Section 15. Section 46-16-103, MCA, is amended to read:
"46-16-103. Who decides questions of law and fact. (1) All prosecutions deciding issues of fact must be tried by the court and jury, except on a plea of guilty or nolo contendere.
(2) Questions of law must be decided by the court and questions of fact by the jury, except that on a trial for criminal defamation, the jury shall determine both questions of law and of fact. Questions of law and fact must be decided by the court when a trial by jury is waived under 46-16-110(3)."
Section 16. Section 46-16-105, MCA, is amended to read:
"46-16-105. Plea of guilty -- use of two-way electronic audio-video communication. (1) Before or during trial, a plea of guilty or nolo contendere may be accepted when:
(a) subject to the provisions of subsection (3), the defendant enters a plea of guilty or nolo contendere in open court; and
(b) the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law that may be imposed upon acceptance of the plea.
(2) At any time before or after judgment, the court may, for good cause shown, permit the plea of guilty or nolo contendere to be withdrawn and a plea of not guilty substituted.
(3) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, an entry of a plea of guilty or nolo contendere through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be an entry of a plea of guilty or nolo contendere in open court. Audio-video communication may be used if neither party objects and the court agrees to its use. The audio-video communication must operate as provided in 46-12-201."
Section 17. Section 46-17-203, MCA, is amended to read:
"46-17-203. Plea of guilty -- use of two-way electronic audio-video communication. (1) Before or during trial, a plea of guilty or nolo contendere may be accepted when:
(a) subject to the provisions of subsection (3), the defendant enters a plea of guilty or nolo contendere in open court; and
(b) the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law that may be imposed upon acceptance of the plea.
(2) A plea of guilty or nolo contendere in a justice's court, city court, or other court of limited jurisdiction waives the right of trial de novo in district court. A defendant must be informed of the waiver before the plea is accepted, and the justice or judge shall question the defendant to ensure that the plea and waiver are entered voluntarily.
(3) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, an entry of a plea of guilty or nolo contendere through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be an entry of a plea of guilty or nolo contendere in open court. Audio-video communication may be used if neither party objects and the court agrees to its use. The audio-video communication must operate as provided in 46-12-201."
Section 18. Section 46-18-104, MCA, is amended to read:
"46-18-104. Definitions. As used in 46-18-101, 46-18-104, 46-18-105, 46-18-201, and 46-18-225, unless the context requires otherwise, the following definitions apply:
(1) "Community corrections" or "community corrections facility or program" means a community corrections facility or program as defined in 53-30-303.
(2) "Crime of violence" means:
(a) a crime in which an offender uses or possesses and threatens to use a deadly weapon during the commission or attempted commission of a crime;
(b) a crime in which the offender causes a serious bodily injury or death to a person other than himself the offender; or
(c) any sexual offense in which the offender causes bodily injury to the victim or uses threat, intimidation, or force against the victim.
(3) "Nonviolent felony offender" means a person who has entered a plea of guilty or nolo contendere to a felony offense other than a crime of violence or who has been convicted of a felony offense other than a crime of violence."
Section 19. 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 of guilty or a plea of guilty or nolo contendere, 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:
(i) jail base release;
(ii) jail time 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; or
(xiv) any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xiii).
(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 or state prison sentence, as provided in Title 45, for the offense or commit the defendant to the department of corrections for a period not to exceed 5 years for placement in an appropriate correctional facility or program;
(f) 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) 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) impose any combination of subsections (1)(b) through (1)(g).
(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 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 20. Section 46-18-204, MCA, is amended to read:
"46-18-204. Dismissal after deferred imposition. Whenever the court has deferred the imposition of sentence and
after termination of the time period during which imposition of sentence has been deferred, upon motion of the court, the
defendant, or the defendant's attorney, the court may allow the defendant to withdraw his a plea of guilty or nolo contendere
or may strike the verdict of guilty from the record and order that the charge or charges against him the defendant be
dismissed. A copy of the order of dismissal must be sent to the prosecutor and the department of justice, accompanied by a
form prepared by the department of justice and containing identifying information about the defendant. After the charge is
dismissed, all records and data relating to the charge are confidential criminal justice information, as defined in 44-5-103,
and public access to the information may only be obtained by district court order upon good cause shown."
Section 21. Section 46-18-231, MCA, is amended to read:
"46-18-231. Fines in felony and misdemeanor cases. (1) Whenever, upon a verdict of guilty or a plea of guilty or nolo contendere, a person has been found guilty of an offense for which a felony penalty of imprisonment could be imposed, the court may impose a fine, only in accordance with subsection (3), and in lieu of or in addition to a sentence of imprisonment. For those crimes for which penalties are provided in 45-5-103, 45-5-202(3), 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), 45-9-103(2), and 45-9-109, a fine may be imposed in accordance with subsection (3) in addition to a sentence of imprisonment.
(2) Whenever, upon a verdict of guilty or a plea of guilty or nolo contendere, a person has been found guilty of an offense for which a misdemeanor penalty of a fine could be imposed, the court may impose a fine only in accordance with subsection (3).
(3) The court may not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine. In determining the amount and method of payment, the court shall take into account the nature of the crime committed, the financial resources of the defendant, and the nature of the burden that payment of the fine will impose.
(4) Any fine levied under this section in a felony case shall be in an amount fixed by the court not to exceed $50,000."
Section 22. Section 46-24-203, MCA, is amended to read:
"46-24-203. Prompt notification to victims and witnesses of certain offenses. (1) A person described in subsection (2) who provides the appropriate official with a current address and telephone number must receive prompt advance notification, if possible, of proceedings relating to the person's case, including:
(a) the arrest of an accused;
(b) the release of the accused pending judicial proceedings;
(c) the crime with which the accused has been charged, including an explanation of the elements of the offense when necessary to an understanding of the nature of the crime;
(d) proceedings in the prosecution of the accused, including entry of a plea of guilty or nolo contendere and the setting of a trial date;
(e) if the accused is convicted or pleads guilty or nolo contendere, the function of a presentence report; the name, office address, and telephone number of the person preparing the report; and the convicted person's right of access to the report, as well as the victim's right under 46-18-115 to present a statement in writing or orally at the sentencing proceeding and the convicted person's right to be present at the sentencing proceeding and to have access to the victim's statement;
(f) the date, time, and place of any sentencing hearing, the sentence imposed, and the term of imprisonment, if imposed; and
(g) the right under 46-24-212 of a victim of a felony offense to receive information from the department of corrections concerning the convicted person's incarceration.
(2) A person entitled to notification under subsection (1) must be a victim or witness of a felony offense or a
misdemeanor offense involving actual, threatened, or potential bodily injury to the victim, a relative of such a victim or
witness who is a minor, or a relative of a homicide victim."
Section 23. Section 53-30-303, MCA, is amended to read:
"53-30-303. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
(1) "Community corrections board" means a community corrections board as provided in 53-30-312.
(2) "Community corrections facility or program" means a community-based or community-oriented facility or program, other than a jail, that:
(a) is established by a local or tribal government and operated by a unit of local government, a tribal government, or a nongovernmental agency; and
(b) provides programs and services to aid offenders in:
(i) obtaining and holding regular employment;
(ii) enrolling in and maintaining academic courses;
(iii) participating in vocational training programs;
(iv) utilizing the resources of the community to meet their personal and family needs;
(v) obtaining the benefits of specialized treatment services that exist within the community; and
(vi) paying restitution or performing community restitution to crime victims.
(3) "Department" means the department of corrections created in 2-15-2301.
(4) "Nongovernmental agency" means a person, private, nonprofit agency, corporation, association, labor organization, or other nongovernmental entity.
(5) "Offender" means a person who has entered a plea of guilty or nolo contendere or has been convicted of a criminal offense.
(6) "Tribal government" means a federally recognized Indian tribe within the state of Montana.
(7) "Unit of local government" means a county, city, town, or city-county consolidated government."
Section 24. Section 61-11-203, MCA, is amended to read:
"61-11-203. Definitions. As used in this part, the following definitions apply:
(1) "Conviction" means a finding of guilt by duly constituted judicial authority, a plea of guilty or nolo contendere, or a
forfeiture of bail, bond, or other security deposited to secure appearance by a person charged with having committed any
offense relating to the use or operation of a motor vehicle which that is prohibited by law, ordinance, or administrative
order.
(2) "Habitual traffic offender" means any person who within a 3-year period accumulates 30 or more conviction points according to the schedule specified in this subsection:
(a) deliberate homicide resulting from the operation of a motor vehicle, 15 points;
(b) mitigated deliberate homicide, negligent homicide resulting from operation of a motor vehicle, or negligent vehicular assault, 12 points;
(c) any offense punishable as a felony under the motor vehicle laws of Montana or any felony in the commission of which a motor vehicle is used, 12 points;
(d) driving while under the influence of intoxicating liquor or narcotics or drugs of any kind or operation of a motor vehicle by a person with alcohol concentration of 0.10 or more, 10 points;
(e) operating a motor vehicle while the license to do so has been suspended or revoked, 6 points;
(f) failure of the driver of a motor vehicle involved in an accident resulting in death or injury to any person to stop at the scene of the accident and give the required information and assistance, as defined in 61-7-105, 8 points;
(g) willful failure of the driver involved in an accident resulting in property damage of $250 to stop at the scene of the accident and give the required information or failure to otherwise report an accident in violation of the law, 4 points;
(h) reckless driving, 5 points;
(i) illegal drag racing or engaging in a speed contest in violation of the law, 5 points;
(j) any of the mandatory motor vehicle liability protection offenses under 61-6-301 and 61-6-302, 5 points;
(k) operating a motor vehicle without a license to do so, 2 points (this subsection (k) does not apply to operating a motor vehicle within a period of 180 days from the date the license expired);
(l) speeding, 3 points;
(m) all other moving violations, 2 points.
(3) There may not be multiple application of cumulative points when two or more charges are filed involving a single occurrence. If there are two or more convictions involving a single occurrence, only the number of points for the specific conviction carrying the highest points is chargeable against that defendant.
(4) "License" means any type of license or permit to operate a motor vehicle."
Section 25. Section 87-1-112, MCA, is amended to read:
"87-1-112. Finding required. Before restitution may be ordered pursuant to 87-1-111, the finder of fact at trial or the
court upon entry of a guilty or nolo contendere plea must shall find that such the illegal killing or possession was done
knowingly or purposely as defined in 45-2-101. This finding is not required for state reimbursement under 87-1-111 when
bond or bail is forfeited."
- END -
Latest Version of HB 209 (HB0209.ENR)
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