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HOUSE BILL NO. 449
INTRODUCED BY J. HURDLE
A BILL FOR AN ACT ENTITLED: "AN ACT REVISING LAWS RELATING TO DEVIATE SEXUAL CONDUCT; REVISING THE DEFINITION OF "DEVIATE SEXUAL RELATIONS"; AND AMENDING SECTIONS 27-2-216, 45-1-205, 45-2-101, 45-5-505, 46-16-216, AND 46-18-201, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 27-2-216, MCA, is amended to read:
"27-2-216. Tort actions -- childhood sexual abuse. (1) An action based on intentional conduct brought by a person for recovery of damages for injury suffered as a result of childhood sexual abuse must be commenced not later than:
(a) 3 years after the act of childhood sexual abuse that is alleged to have caused the injury; or
(b) 3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused by the act of childhood sexual abuse.
(2) It is not necessary for a plaintiff to establish which act, in a series of acts of childhood sexual abuse, caused the injury that is the subject of the suit. The plaintiff may compute the period referred to in subsection (1)(a) from the date of the last act by the same perpetrator.
(3) As used in this section, "childhood sexual abuse" means any act committed against a plaintiff who was less than 18
years of age at the time the act occurred and that would have been a violation of 45-5-502, 45-5-503, 45-5-504,
45-5-507, 45-5-625, or prior similar laws in effect at the time the act occurred.
(4) The provisions of 27-2-401 apply to this section."
Section 2. Section 45-1-205, MCA, is amended to read:
"45-1-205. General time limitations. (1) (a) A prosecution for deliberate, mitigated, or negligent homicide may be commenced at any time.
(b) A prosecution under 45-5-502 through
45-5-505 45-5-504, 45-5-507, 45-5-625, or 45-5-627 may be commenced
within 5 years after the victim reaches the age of 18 if the victim was less than 18 years old at the time that the offense
(2) Except as provided in subsection (7)(b) or as otherwise provided by law, prosecutions for other offenses are subject to the following periods of limitation:
(a) A prosecution for a felony must be commenced within 5 years after it is committed.
(b) A prosecution for a misdemeanor must be commenced within 1 year after it is committed.
(3) The periods prescribed in subsection (2) are extended in a prosecution for theft involving a breach of fiduciary obligation to an aggrieved person as follows:
(a) if the aggrieved person is a minor or incompetent, during the minority or incompetency or within 1 year after the termination of the minority or incompetency;
(b) in any other instance, within 1 year after the discovery of the offense by the aggrieved person or by a person who has legal capacity to represent an aggrieved person or has a legal duty to report the offense and is not personally a party to the offense or, in the absence of discovery, within 1 year after the prosecuting officer becomes aware of the offense.
(4) The period prescribed in subsection (2) must be extended in a prosecution for unlawful use of a computer, and prosecution must be brought within 1 year after the discovery of the offense by the aggrieved person or by a person who has legal capacity to represent an aggrieved person or has a legal duty to report the offense and is not personally a party to the offense or, in the absence of discovery, within 1 year after the prosecuting officer becomes aware of the offense.
(5) The period prescribed in subsection (2) is extended in a prosecution for misdemeanor fish and wildlife violations under Title 87, and prosecution must be brought within 3 years after an offense is committed.
(6) The period prescribed in subsection (2)(b) is extended in a prosecution for misdemeanor violations of the laws regulating the activities of outfitters and guides under Title 37, chapter 47, and prosecution must be brought within 3 years after an offense is committed.
(7) (a) An offense is committed either when every element occurs or, when the offense is based upon a continuing course of conduct, at the time when the course of conduct is terminated. Time starts to run on the day after the offense is committed.
(b) A prosecution for theft under 45-6-301 may be commenced at any time during the 5 years following the date of the theft, whether or not the offender is in possession of or otherwise exerting unauthorized control over the property at the time the prosecution is commenced. After the 5-year period ends, a prosecution may be commenced at any time if the offender is still in possession of or otherwise exerting unauthorized control over the property, except that the prosecution must be commenced within 1 year after the investigating officer discovers that the offender still possesses or is otherwise exerting unauthorized control over the property.
(8) A prosecution is commenced either when an indictment is found or an information or complaint is filed."
Section 3. 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 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:
(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) "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) "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) "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) "Offender" means a person who has been or is liable to be arrested, charged, convicted, or punished for a public offense.
(47) "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) "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) "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) "Other state" means any state or territory of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(51) "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) "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) "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) "Pecuniary benefit" is benefit in the form of money, property, commercial interests, or anything else the primary significance of which is economic gain.
(55) "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) "Physically helpless" means that a person is unconscious or is otherwise physically unable to communicate unwillingness to act.
(57) "Possession" is the knowing control of anything for a sufficient time to be able to terminate control.
(58) "Premises" includes any type of structure or building and any real property.
(59) "Property" means any tangible or intangible thing of value. Property includes but is not limited to:
(a) real estate;
(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) "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) "Public place" means any place to which the public or any substantial group has access.
(62) "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) "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) (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) "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) "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) "Solicit" or "solicitation" means to command, authorize, urge, incite, request, or advise another to commit an offense.
(68) "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) "Statute" means any act of the legislature of this state.
(70) "Stolen property" means property over which control has been obtained by theft.
(71) 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) "Tamper" means to interfere with something improperly, meddle with it, make unwarranted alterations in its existing condition, or deposit refuse upon it.
(73) "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) (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), 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) "Vehicle" means any device for transportation by land, water, or air or by mobile equipment, with provision for transport of an operator.
(76) "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) "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 4. Section 45-5-505, MCA, is amended to read:
"45-5-505. Deviate sexual conduct. (1) A person who knowingly engages in deviate sexual relations or who causes another to engage in deviate sexual relations commits the offense of deviate sexual conduct.
(2) A person convicted of the offense of deviate sexual conduct shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.
(3) The fact that a person seeks testing or receives treatment for the HIV-related virus or another sexually transmitted
disease may not be used as a basis for a prosecution under this section and is not admissible in evidence in a prosecution
under this section."
Section 5. Section 46-16-216, MCA, is amended to read:
"46-16-216. Videotaped testimony. (1) For any prosecution commenced under 45-5-502(3), 45-5-503,
45-5-507 or for prosecution of any offense against the person provided for in Title 45, chapter 5, involving a victim who is
under 16 years of age, the testimony of the victim, at the request of the victim and with the concurrence of the prosecutor,
may be recorded by means of videotape for presentation at trial. The recorded testimony may be presented at trial and must
be received into evidence. The victim need not be physically present in the courtroom when the videotape is admitted into
(2) The procedural and evidentiary rules of the state that are applicable to criminal trials within the state apply to the videotape proceedings authorized by this section.
(3) The district court judge, the prosecutor, the victim, the defendant, the defendant's attorney, and other persons as are considered necessary by the court to make the recordings authorized under this section must be allowed to attend the videotape proceedings.
(4) Videotapes that are part of the court record are subject to a protective order of the court for the purpose of protecting the privacy of the victim."
Section 6. 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:
(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."
NEW SECTION. Section 7. Code commissioner instruction. The code commissioner is instructed to renumber 45-5-505 into Title 45, chapter 8, part 2.
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Latest Version of HB 449 (HB0449.01)
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