House Bill No. 273

Introduced By _______________________________________________________________________________



A Bill for an Act entitled: "An Act generally revising the sentencing of offenders who have been previously convicted of one or more violent offenses; requiring that the offenders be sentenced as persistent felony offenders; substituting persistent felony offender status for mandatory life sentences for offenders who have been previously convicted of one or more violent offenses; amending sections 45-5-102, 45-5-303, 45-5-503, 45-5-625, 46-13-108, 46-13-110, 46-18-111, 46-18-201, 46-18-219, 46-18-222, 46-18-225, 46-18-501, 46-18-502, 46-23-201, and 46-23-411, MCA; and providing an effective date."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 45-5-102, MCA, is amended to read:

"45-5-102.   (Temporary) Deliberate homicide. (1) A person commits the offense of deliberate homicide if:

(a)  he purposely or knowingly causes the death of another human being; or

(b)  he attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, felony assault, aggravated assault, or any other forcible felony and in the course of the forcible felony or flight thereafter, he or any person legally accountable for the crime causes the death of another human being.

(2)  A person convicted of the offense of deliberate homicide shall be punished by death as provided in 46-18-301 through 46-18-310, by life imprisonment, or by imprisonment in the state prison for a term of not less than 10 years or more than 100 years, except as provided in 46-18-222.

45-5-102.   (Effective July 1, 1997) Deliberate homicide. (1) A person commits the offense of deliberate homicide if:

(a)  the person purposely or knowingly causes the death of another human being; or

(b)  the person attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, felony assault, aggravated assault, or any other forcible felony and in the course of the forcible felony or flight thereafter, the person or any person legally accountable for the crime causes the death of another human being.

(2)  A person convicted of the offense of deliberate homicide shall be punished by death as provided in 46-18-301 through 46-18-310, by life imprisonment, or by imprisonment in the state prison for a term of not less than 10 years or more than 100 years, except as provided in 46-18-219 and 46-18-222."



Section 2.  Section 45-5-303, MCA, is amended to read:

"45-5-303.   (Temporary) Aggravated kidnapping. (1) A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation or by using or threatening to use physical force, with any of the following purposes:

(a)  to hold for ransom or reward or as a shield or hostage;

(b)  to facilitate commission of any felony or flight thereafter;

(c)  to inflict bodily injury on or to terrorize the victim or another;

(d)  to interfere with the performance of any governmental or political function; or

(e)  to hold another in a condition of involuntary servitude.

(2)  Except as provided in 46-18-222, a person convicted of the offense of aggravated kidnapping shall be punished by death or life imprisonment as provided in 46-18-301 through 46-18-310 or be imprisoned in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000, unless he has voluntarily released the victim alive, in a safe place, and not suffering from serious bodily injury, in which event he shall be imprisoned in the state prison for a term of not less than 2 years or more than 10 years and may be fined not more than $50,000.

45-5-303.   (Effective July 1, 1997) Aggravated kidnapping. (1) A person commits the offense of aggravated kidnapping if the person knowingly or purposely and without lawful authority restrains another person by either secreting or holding the other person in a place of isolation or by using or threatening to use physical force, with any of the following purposes:

(a)  to hold for ransom or reward or as a shield or hostage;

(b)  to facilitate commission of any felony or flight thereafter;

(c)  to inflict bodily injury on or to terrorize the victim or another;

(d)  to interfere with the performance of any governmental or political function; or

(e)  to hold another in a condition of involuntary servitude.

(2)  Except as provided in 46-18-219 and 46-18-222, a person convicted of the offense of aggravated kidnapping shall be punished by death or life imprisonment as provided in 46-18-301 through 46-18-310 or be imprisoned in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000, unless the person has voluntarily released the victim alive, in a safe place, and with no serious bodily injury, in which event the person shall be imprisoned in the state prison for a term of not less than 2 years or more than 10 years and may be fined not more than $50,000."



Section 3.  Section 45-5-503, MCA, is amended to read:

"45-5-503.   (Temporary) Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent. A person may not be convicted under this section based on the age of the person's spouse, as provided in 45-5-501(1)(b)(iii).

(2)  A person convicted of sexual intercourse without consent shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-222.

(3)  (a) If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-222.

(b)  If two or more persons are convicted of sexual intercourse without consent with the same victim in an incident in which each offender was present at the location where another offender's offense occurred during a time period in which each offender could have reasonably known of the other's offense, each offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 5 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-222.

(4)  In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the court shall require the offender, if able, to pay the victim's reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.

(5)  As used in subsection (3), an act "in the course of committing sexual intercourse without consent" includes an attempt to commit the offense or flight after the attempt or commission.

45-5-503.   (Effective July 1, 1997) Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent. A person may not be convicted under this section based on the age of the person's spouse, as provided in 45-5-501(1)(b)(iii).

(2)  A person convicted of sexual intercourse without consent shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.

(3)  (a) If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.

(b)  If two or more persons are convicted of sexual intercourse without consent with the same victim in an incident in which each offender was present at the location where another offender's offense occurred during a time period in which each offender could have reasonably known of the other's offense, each offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 5 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.

(4)  In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the court shall require the offender, if able, to pay the victim's reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.

(5)  As used in subsection (3), an act "in the course of committing sexual intercourse without consent" includes an attempt to commit the offense or flight after the attempt or commission."



Section 4.  Section 45-5-625, MCA, is amended to read:

"45-5-625.   (Temporary) Sexual abuse of children. (1) A person commits the offense of sexual abuse of children if the person:

(a)  knowingly employs, uses, or permits the employment or use of a child in an exhibition of sexual conduct, actual or simulated;

(b)  knowingly photographs, films, videotapes, develops or duplicates the photographs, films, or videotapes, or records a child engaging in sexual conduct, actual or simulated;

(c)  knowingly persuades, entices, counsels, or procures a child to engage in sexual conduct, actual or simulated, for use as designated in subsection (1)(a), (1)(b), or (1)(d);

(d)  knowingly processes, develops, prints, publishes, transports, distributes, sells, exhibits, or advertises any visual or print medium in which children are engaged in sexual conduct, actual or simulated;

(e)  knowingly possesses any visual or print medium in which children are engaged in sexual conduct, actual or simulated;

(f)  finances any of the activities described in subsections (1)(a) through (1)(d) and (1)(g), knowing that the activity is of the nature described in those subsections; or

(g)  possesses with intent to sell any visual or print medium in which children are engaged in sexual conduct, actual or simulated.

(2)  (a) A person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term not to exceed 100 years and may be fined not more than $10,000.

(b)  If the victim is under 16 years of age, a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $10,000.

(c)  A person convicted of the offense of sexual abuse of children for the possession of material, as provided in subsection (1)(e), shall be fined not to exceed $10,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.

(3)  An offense is not committed under subsections (1)(d) through (1)(g) if the visual or print medium is processed, developed, printed, published, transported, distributed, sold, possessed, or possessed with intent to sell, or if the activity is financed, as part of a sex offender information or treatment course or program conducted or approved by the department of corrections.

45-5-625.   (Effective July 1, 1997) Sexual abuse of children. (1) A person commits the offense of sexual abuse of children if the person:

(a)  knowingly employs, uses, or permits the employment or use of a child in an exhibition of sexual conduct, actual or simulated;

(b)  knowingly photographs, films, videotapes, develops or duplicates the photographs, films, or videotapes, or records a child engaging in sexual conduct, actual or simulated;

(c)  knowingly persuades, entices, counsels, or procures a child to engage in sexual conduct, actual or simulated, for use as designated in subsection (1)(a), (1)(b), or (1)(d);

(d)  knowingly processes, develops, prints, publishes, transports, distributes, sells, exhibits, or advertises any visual or print medium in which children are engaged in sexual conduct, actual or simulated;

(e)  knowingly possesses any visual or print medium in which children are engaged in sexual conduct, actual or simulated;

(f)  finances any of the activities described in subsections (1)(a) through (1)(d) and (1)(g), knowing that the activity is of the nature described in those subsections; or

(g)  possesses with intent to sell any visual or print medium in which children are engaged in sexual conduct, actual or simulated.

(2)  (a) A person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term not to exceed 100 years and may be fined not more than $10,000.

(b)  Except as provided in 46-18-219, if If the victim is under 16 years of age, a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $10,000.

(c)  Except as provided in 46-18-219, a person convicted of the offense of sexual abuse of children for the possession of material, as provided in subsection (1)(e), shall be fined not to exceed more than $10,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.

(3)  An offense is not committed under subsections (1)(d) through (1)(g) if the visual or print medium is processed, developed, printed, published, transported, distributed, sold, possessed, or possessed with intent to sell, or if the activity is financed, as part of a sex offender information or treatment course or program conducted or approved by the department of corrections."



Section 5.  Section 46-13-108, MCA, is amended to read:

"46-13-108.   Notice by prosecutor seeking persistent felony offender status. (1) Except as provided in subsection (6) or 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 that 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 is given by the defendant.

(6) Notice under this section is not required if the charge filed against the defendant is an offense listed in 46-18-219."



Section 6.  Section 46-13-110, MCA, is amended to read:

"46-13-110.   Omnibus hearing. (1) Within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial, the court shall hold an omnibus hearing.

(2)  The purpose of the hearing is to expedite the procedures leading up to the trial of the defendant.

(3)  The presence of the defendant is not required. The prosecutor and the defendant's counsel shall attend the hearing and must be prepared to discuss any pretrial matter appropriate to the case, including but not limited to:

(a)  joinder and severance of offenses or defendants, 46-11-404, 46-13-210, and 46-13-211;

(b)  double jeopardy, 46-11-410, 46-11-503, and 46-11-504;

(c)  the need for exclusion of the public and for sealing records of any pretrial proceedings, 46-11-701;

(d)  notification of the existence of a plea agreement, 46-12-211;

(e)  disclosure and discovery motions, Title 46, chapter 15, part 3;

(f)  notice of reliance on certain defenses, 46-15-323;

(g)  if required, notice of seeking persistent felony offender status, 46-13-108;

(h)  notice of other crimes, wrongs, or acts, 46-13-109;

(i)  motion to suppress, 46-13-301 and 46-13-302;

(j)  motion to dismiss, 46-13-401 and 46-13-402;

(k)  motion for change of place of trial, 46-13-203 through 46-13-205;

(l)  reasonableness of bail, Title 46, chapter 9; and

(m)  stipulations.

(4)  At the conclusion of the hearing, a court-approved memorandum of the matters settled must be signed by the court and counsel and filed with the court.

(5)  Any motions made pursuant to subsections (1) through (3) may be ruled on by the court at the time of the hearing, where when appropriate, or may be scheduled for briefing and further hearing as the court considers necessary."



Section 7.  Section 46-18-111, MCA, is amended to read:

"46-18-111.   (Temporary) Presentence investigation -- when required. (1) Upon the acceptance of a plea or upon a verdict or finding of guilty to one or more felony offenses, the district court shall direct the probation officer to make a presentence investigation and report. The district court shall consider the presentence investigation report prior to sentencing. If the defendant was convicted of an offense under 45-5-502, 45-5-503, 45-5-504, 45-5-505, 45-5-507, or 45-5-625 involving a victim who was less than 16 years of age when the offense was committed, the investigation must include an evaluation of the defendant and a recommendation as to treatment of the offender in the least restrictive environment, considering community safety and offender needs. The evaluation must be completed by a person who is determined to be qualified under guidelines established by the department of corrections. All costs related to the evaluation must be paid by the defendant. If the defendant is determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9.

(2)  Unless the court makes a finding that a report is unnecessary, a defendant convicted of any offense not enumerated in subsection (1) that may result in incarceration for 1 year or more may not be sentenced before a written presentence investigation report by a probation officer is presented to and considered by the district court. The district court may, in its discretion, order a presentence investigation for a defendant convicted of a misdemeanor.

46-18-111.   (Effective July 1, 1997) Presentence investigation -- when required. (1) Upon the acceptance of a plea or upon a verdict or finding of guilty to one or more felony offenses, the district court shall direct the probation officer to make a presentence investigation and report. The district court shall consider the presentence investigation report prior to sentencing. If the defendant was convicted of an offense under 45-5-502, 45-5-503, 45-5-504, 45-5-505, or 45-5-507 or under 45-5-625 involving a victim who was less than 16 years of age when the offense was committed, the investigation must include an evaluation of the defendant and a recommendation as to treatment of the offender in the least restrictive environment, considering community safety and offender needs, unless the defendant was sentenced under 46-18-219. The evaluation must be completed by a person who is determined to be qualified under guidelines established by the department of corrections. All costs related to the evaluation must be paid by the defendant. If the defendant is determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9.

(2)  Unless the court makes a finding that a report is unnecessary, a defendant convicted of any offense not enumerated in subsection (1) that may result in incarceration for 1 year or more may not be sentenced before a written presentence investigation report by a probation officer is presented to and considered by the district court. The district court may, in its discretion, order a presentence investigation for a defendant convicted of a misdemeanor."



Section 8.  Section 46-18-201, MCA, is amended to read:

"46-18-201.   (Temporary) 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 61-8-714 and 61-8-722 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) community service;

(x)  home arrest as provided in Title 46, chapter 18, part 10;

(xi) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

(xii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

(xiii)  any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xii).

(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 placement in an appropriate correctional institution 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; or

(g)  impose any combination of subsections (1)(b) through (1)(f).

(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 restitution to the victim as provided in 46-18-241 through 46-18-249. If the court determines that the defendant is unable to pay restitution, then it may impose, in addition to any other sentence, community service under 46-18-241.

(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 46-18-254, 46-18-255, and 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 the educational phase of the prison's sexual offender program.

(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. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison or the women's correctional system, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

46-18-201.   (Effective July 1, 1997) 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 61-8-714 and 61-8-722 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) community service;

(x)  home arrest as provided in Title 46, chapter 18, part 10;

(xi) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

(xii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

(xiii)  any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xii).

(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 placement in an appropriate correctional institution 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; or

(g)  impose any combination of subsections (1)(b) through (1)(f).

(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 restitution to the victim as provided in 46-18-241 through 46-18-249. If the court determines that the defendant is unable to pay restitution, then it may impose, in addition to any other sentence, community service under 46-18-241.

(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 46-18-254, 46-18-255, and 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.

(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. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison or the women's correctional system, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

(12) 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 9.  Section 46-18-219, MCA, is amended to read:

"46-18-219.   (Effective July 1, 1997) Life sentence without possibility of release Sentencing of certain offenders previously convicted of one or more offenses -- persistent felony offender status. (1) (a) Except as provided in subsection (3), if If a person convicted of one of the following offenses was previously convicted of one of the following offenses or of an offense under the laws of another state or of the United States that, if committed in this state, would be one of the following offenses, the person must be sentenced to life in prison, unless the death penalty is applicable and imposed as a persistent felony offender as provided in 46-18-501 and 46-18-502:

(i)(a)  45-5-102, deliberate homicide;

(ii)(b) 45-5-303, aggravated kidnapping;

(iii)(c) 45-5-503, sexual intercourse without consent;

(iv)(d) 45-5-625, sexual abuse of children; or

(v)(e)  45-5-627, except subsection (1)(b), ritual abuse of a minor.

(b)(2)  Except as provided in subsection (3), if If a person convicted of one of the following offenses was previously convicted of two of the following offenses, two of any combination of the offenses listed in subsection (1)(a) or the following offenses, or two of any offenses under the laws of another state or of the United States that, if committed in this state, would be one of the offenses listed in subsection (1)(a) or this subsection, the person must be sentenced to life in prison, unless the death penalty is applicable and imposed as a persistent felony offender as provided in 46-18-501 and 46-18-502:

(i)(a)  45-5-103, mitigated deliberate homicide;

(ii)(b) 45-5-202(1), aggravated assault;

(iii)(c) 45-5-302, kidnapping;

(iv)(d) 45-5-401, robbery.

(2)  Except as provided in 46-23-210 and subsection (3) of this section, a person sentenced under subsection (1):

(a)  shall serve the entire sentence;

(b)  shall serve the sentence in prison;

(c)  may not for any reason, except medical reasons, be transferred for any length of time to another type of institution, facility, or program;

(d)  may not be paroled; and

(e)  may not be given time off for good behavior or otherwise be given an early release for any reason.

(3)  If the person was previously sentenced for either of two or three offenses listed in subsection (1), as applicable, pursuant to any of the exceptions listed in 46-18-222, then the provisions of subsections (1) and (2) of this section do not apply to the person's present sentence.

(4)  (a) For purposes of this section, "prison" means a secure detention facility in which inmates are locked up 24 hours a day and that is operated by this state, another state, the federal government, or a private contractor.

(b)  Prison does not include a work release center, prerelease center, boot camp, or any other type of facility that does not provide secure detention."



Section 10.  Section 46-18-222, MCA, is amended to read:

"46-18-222.   (Temporary) Exceptions to mandatory minimum sentences and restrictions on deferred imposition and suspended execution of sentence. All mandatory minimum sentences prescribed by the laws of this state and the restrictions on deferred imposition and suspended execution of sentence prescribed by 46-18-201(5) through (7), 46-18-221(3), 46-18-224, and 46-18-502(3) do not apply if:

(1)  the defendant was less than 18 years of age at the time of the commission of the offense for which the defendant is to be sentenced;

(2)  the defendant's mental capacity, at the time of the commission of the offense for which the defendant is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution. However, a voluntarily induced intoxicated or drugged condition may not be considered an impairment for the purposes of this subsection.

(3)  the defendant, at the time of the commission of the offense for which the defendant is to be sentenced, was acting under unusual and substantial duress, although not such duress as would constitute a defense to the prosecution;

(4)  the defendant was an accomplice, the conduct constituting the offense was principally the conduct of another, and the defendant's participation was relatively minor;

(5)  in a case in which the threat of bodily injury or actual infliction of bodily injury is an actual element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense; or

(6)  the offense was committed under 45-5-502(3) and the court determines that treatment of the defendant in a local community affords a better opportunity for rehabilitation of the defendant and for the ultimate protection of the victim and society, in which case the court shall include in its judgment a statement of the reasons for its determination.

46-18-222.   (Effective July 1, 1997) Exceptions to mandatory minimum sentences and restrictions on deferred imposition and suspended execution of sentence. All mandatory minimum sentences prescribed by the laws of this state and 46-18-219 and the restrictions on deferred imposition and suspended execution of sentence prescribed by 46-18-201(5) through (7), 46-18-221(3), 46-18-224, and 46-18-502(3) do not apply if:

(1)  the defendant was less than 18 years of age at the time of the commission of the offense for which the defendant is to be sentenced;

(2)  the defendant's mental capacity, at the time of the commission of the offense for which the defendant is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution. However, a voluntarily induced intoxicated or drugged condition may not be considered an impairment for the purposes of this subsection.

(3)  the defendant, at the time of the commission of the offense for which the defendant is to be sentenced, was acting under unusual and substantial duress, although not such duress as would constitute a defense to the prosecution;

(4)  the defendant was an accomplice, the conduct constituting the offense was principally the conduct of another, and the defendant's participation was relatively minor;

(5)  in a case in which the threat of bodily injury or actual infliction of bodily injury is an actual element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense; or

(6)  the offense was committed under 45-5-502(3) and the court determines that treatment of the defendant in a local community affords a better opportunity for rehabilitation of the defendant and for the ultimate protection of the victim and society, in which case the court shall include in its judgment a statement of the reasons for its determination."



Section 11.  Section 46-18-225, MCA, is amended to read:

"46-18-225.   (Temporary) Criteria for sentencing nonviolent felony offenders. Prior to sentencing a nonviolent felony offender to a term of imprisonment in the state prison or the women's correctional system, the court shall take into account whether:

(1)  the interests of justice and the needs of public safety truly require the level of security provided by imprisonment of the offender in the state prison or the women's correctional system;

(2)  the needs of the offender can be better served in the community or in a facility or program other than the state prison or the women's correctional system;

(3)  there are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;

(4)  the offender acted under strong provocation;

(5)  the offender has made restitution or will make restitution to the victim of the offender's criminal conduct;

(6)  the offender has no prior history of conviction for a criminal act or has led a law-abiding life for a substantial period of time before the commission of the present crime;

(7)  the offender's criminal conduct was the result of circumstances that are unlikely to recur;

(8)  the character and attitude of the offender indicate that the offender is likely to commit another crime;

(9)  the offender is likely to respond quickly to correctional or rehabilitative treatment; and

(10) imprisonment of the offender would create an excessive hardship on the offender or the offender's family.

46-18-225.   (Effective July 1, 1997) Criteria for sentencing nonviolent felony offenders. Prior to sentencing a nonviolent felony offender to whom 46-18-219 does not apply to a term of imprisonment in the state prison or the women's correctional system, the court shall take into account whether:

(1)  the interests of justice and the needs of public safety truly require the level of security provided by imprisonment of the offender in the state prison or the women's correctional system;

(2)  the needs of the offender can be better served in the community or in a facility or program other than the state prison or the women's correctional system;

(3)  there are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;

(4)  the offender acted under strong provocation;

(5)  the offender has made restitution or will make restitution to the victim of the offender's criminal conduct;

(6)  the offender has no prior history of conviction for a criminal act or has led a law-abiding life for a substantial period of time before the commission of the present crime;

(7)  the offender's criminal conduct was the result of circumstances that are unlikely to recur;

(8)  the character and attitude of the offender indicate that the offender is likely to commit another crime;

(9)  the offender is likely to respond quickly to correctional or rehabilitative treatment; and

(10) imprisonment of the offender would create an excessive hardship on the offender or the offender's family."



Section 12.  Section 46-18-501, MCA, is amended to read:

"46-18-501.   Definition of persistent felony offender. A "persistent felony offender" is 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:

(1)  the previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed;

(2)  except as provided in 46-18-219, less than 5 years have elapsed between the commission of the present offense and either:

(a)  the previous felony conviction; or

(b)  the offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction; and

(3)  the offender has not been pardoned on the ground of innocence and the conviction has not been set aside in a postconviction hearing."



Section 13.  Section 46-18-502, MCA, is amended to read:

"46-18-502.   (Temporary) Sentencing of persistent felony offender. (1) Except as provided in subsection (2), a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if he was 21 years of age or older at the time of the commission of the present offense.

(2)  If the offender was a persistent felony offender, as defined in 46-18-501, at the time of his previous felony conviction, less than 5 years have elapsed between the commission of the present offense and either the previous felony conviction or the offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction, and he was 21 years of age or older at the time of the commission of the present offense, he shall be imprisoned in the state prison for a term of not less than 10 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both.

(3)  Except as provided in 46-18-222, the imposition or execution of the first 5 years of a sentence imposed under subsection (1) or the first 10 years of a sentence imposed under subsection (2) may not be deferred or suspended.

(4)  Any sentence imposed under subsection (2) shall run consecutive to any other sentence imposed.

46-18-502.   (Effective July 1, 1997) Sentencing of persistent felony offender. (1) Except as provided in 46-18-219 and subsection (2) of this section, a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if the offender was 21 years of age or older at the time of the commission of the present offense.

(2)  If the offender was a persistent felony offender, as defined in 46-18-501, at the time of the offender's previous felony conviction, less than 5 years have elapsed between the commission of the present offense and either the previous felony conviction or the offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction, and the offender was 21 years of age or older at the time of the commission of the present offense, the offender shall, except as provided in 46-18-219, be imprisoned in the state prison for a term of not less than 10 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both.

(3)  Except as provided in 46-18-222, the imposition or execution of the first 5 years of a sentence imposed under subsection (1) or the first 10 years of a sentence imposed under subsection (2) may not be deferred or suspended.

(4)  Any sentence imposed under subsection (2) must run consecutively to any other sentence imposed."



Section 14.  Section 46-23-201, MCA, is amended to read:

"46-23-201.   (Temporary) Prisoners eligible for nonmedical parole. (1) Subject to the restrictions contained in subsections (2) through (4), the board may release on nonmedical parole by appropriate order any person confined in the Montana state prison or the women's correctional system, except persons under sentence of death and persons serving sentences imposed under 46-18-202(2), when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.

(2)  A prisoner serving a time sentence may not be paroled under this section until the prisoner has served at least one-fourth of the prisoner's full term.

(3)  A prisoner serving a life sentence may not be paroled under this section until the prisoner has served 30 years.

(4)  A parole may be ordered under this section only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner may be placed on parole only when the board believes that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen.

46-23-201.   (Effective July 1, 1997) Prisoners eligible for nonmedical parole. (1) Subject to the restrictions contained in subsections (2) through (4), the board may release on nonmedical parole by appropriate order any person confined in the Montana state prison or the women's correctional system, except persons under sentence of death and persons serving sentences imposed under 46-18-202(2) or 46-18-219, when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.

(2)  A prisoner serving a time sentence may not be paroled under this section until the prisoner has served at least one-fourth of the prisoner's full term.

(3)  A prisoner serving a life sentence may not be paroled under this section until the prisoner has served 30 years.

(4)  A parole may be ordered under this section only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner may be placed on parole only when the board believes that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen."



Section 15.  Section 46-23-411, MCA, is amended to read:

"46-23-411.   (Temporary) Application to participate -- eligibility. (1) Any prisoner, except a prisoner serving a sentence imposed under 46-18-202(2), may make application to participate in the supervised release program if he has served at least one-half of the time required to be considered for parole and not more than 24 months remain before he is eligible for parole.

(2)  Prisoners serving sentences with the restriction imposed under 46-18-202(2) are not eligible for participation in the program.

(3)  In order to be accepted into the program, an applicant must qualify under the rules established by the department.

46-23-411.   (Effective July 1, 1997) Application to participate -- eligibility. (1) Any prisoner, except a prisoner serving a sentence imposed under 46-18-202(2) or 46-18-219, may apply to participate in the supervised release program if the prisoner has served at least one-half of the time required to be considered for parole and not more than 24 months remain before the person is eligible for parole.

(2)  Prisoners serving sentences under 46-18-219 or with the restriction imposed under 46-18-202(2) are not eligible for participation in the program.

(3)  In order to be accepted into the program, an applicant must qualify under the rules established by the department."



NEW SECTION. Section 16.  Effective date. [This act] is effective July 1, 1997.

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