1999 Montana Legislature

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HOUSE BILL NO. 278

INTRODUCED BY J. HURDLE

A BILL FOR AN ACT ENTITLED: "AN ACT ABOLISHING THE DEATH PENALTY; AMENDING SECTIONS 2-15-201, 37-3-103, 37-8-103, 44-5-103, 45-2-101, 45-5-102, 45-5-303, 45-5-503, 46-4-201, 46-16-122, 46-18-102, 46-18-115, 46-18-219, 46-18-220, 46-18-604, 46-19-101, 46-20-204, 46-21-201, 46-23-201, 46-23-210, 46-23-301, 46-23-307, 46-23-315, 46-30-301, 46-30-303, 53-9-103, AND 53-30-403, MCA; REPEALING SECTIONS 45-3-109, 46-18-301, 46-18-302, 46-18-303, 46-18-304, 46-18-305, 46-18-306, 46-18-307, 46-18-308, 46-18-309, 46-18-310, 46-19-103, 46-19-201, 46-19-202, 46-19-203, AND 46-19-204, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

     Section 1.  Section 2-15-201, MCA, is amended to read:

     "2-15-201.  Powers and duties of governor. In addition to the duties prescribed by the constitution, the governor shall perform the following duties:

     (1)  He The governor shall supervise the official conduct of all executive and ministerial officers.

     (2)  He The governor shall see that all offices are filled and the duties thereof of the offices performed or, in default thereof of performance, apply such a remedy as the law allows. If the remedy is imperfect, he the governor shall acquaint the legislature therewith with the issue at its next session.

     (3)  (a) He The governor shall make the appointments and supply the vacancies as required by law. When a vacancy in a position on a council, board, commission, or committee has occurred or is expected to occur and must be filled by gubernatorial appointment, the governor shall have posted in a conspicuous place in the state capitol a notice:

     (i)  announcing the actual or anticipated vacancy in the position;

     (ii) describing the qualifications for the position, if any; and

     (iii) describing the procedure for applying for appointment to the position.

     (b)  A copy of the notice required under subsection (3)(a) must be sent to the lieutenant governor who may publish the notice in an appropriate publication.

     (4)  He The governor is the sole official organ of communication between the government of this state and the government of any other state or of the United States.

     (5)  Whenever any suit or legal proceeding is pending against this state or which when a suit or legal proceeding may affect the title of this state to any property or which may result in any claim against the state, he the governor may direct the attorney general to appear on behalf of the state and may employ such additional counsel as he the governor may judge expedient.

     (6)  He The governor may require the attorney general or county attorney of any county to inquire into the affairs or management of any corporation existing under the laws of this state.

     (7)  He The governor may require the attorney general to aid the county attorney in the discharge of his the county attorney's duties.

     (8)  He The governor may offer rewards not exceeding $1,000 each, payable out of the general fund, for the apprehension of any convict who has escaped from the state prison or any person who has committed or is charged with an offense punishable by death life imprisonment.

     (9)  He The governor shall perform such the duties respecting fugitives from justice as are prescribed by Title 46, chapter 30.

     (10) He The governor shall issue land warrants and patents, as prescribed in 77-2-342.

     (11) He The governor may require any officer or board to make special reports to him the governor, upon demand, in writing.

     (12) He The governor shall discharge the duties of member of the board of examiners, of nonvoting ex officio member of the state board of education, and of member of the board of land commissioners.

     (13) He The governor has the other powers and must shall perform the other duties as that are devolved upon him the governor by this code or any other law of this state."

     Section 2.  Section 37-3-103, MCA, is amended to read:

     "37-3-103.  Exemptions from licensing requirements. (1) This chapter does not prohibit or require a license with respect to any of the following acts:

     (a)  the gratuitous rendering of services in cases of emergency or catastrophe;

     (b)  the rendering of services in this state by a physician lawfully practicing medicine in another state or territory. However, if the physician does not limit the services to an occasional case or if he the physician has any established or regularly used hospital connections in this state or maintains or is provided with, for his the physician's regular use, an office or other place for rendering the services, he the physician must possess a license to practice medicine in this state.

     (c)  the practice of dentistry under the conditions and limitations defined by the laws of this state;

     (d)  the practice of podiatry under the conditions and limitations defined by the laws of this state;

     (e)  the practice of optometry under the conditions and limitations defined by the laws of this state;

     (f)  the practice of osteopathy under the conditions and limitations defined in chapter 5 of this title for those doctors of osteopathy who do not receive a physician's certificate under this chapter;

     (g)  the practice of chiropractic under the conditions and limitations defined by the laws of this state;

     (h)  the practice of Christian Science, with or without compensation, and ritual circumcisions by rabbis;

     (i)  the performance by commissioned medical officers of the armed forces of the United States, of the United States public health service, or of the United States department of veterans affairs of their lawful duties in this state as officers;

     (j)  the rendering of nursing services by registered or other nurses in the lawful discharge of their duties as nurses or of midwife services by registered nurse-midwives under the supervision of a licensed physician;

     (k)  the rendering of services by interns or resident physicians in a hospital or clinic in which they are training, subject to the conditions and limitations of this chapter. The board may require a resident physician to be licensed if he otherwise engages in the practice of medicine in the state of Montana.

     (l)  the rendering of services by a physical therapist, technician, or other paramedical specialist under the appropriate amount and type of supervision of a person licensed under the laws of this state to practice medicine, but this exemption does not extend the scope of a paramedical specialist;

     (m)  the rendering of services by a physician assistant-certified in accordance with Title 37, chapter 20;

     (n)  the practice by persons licensed under the laws of this state to practice a limited field of the healing arts, and not specifically designated, under the conditions and limitations defined by law; and

     (o)  the execution of a death sentence pursuant to 46-19-103; and

     (p)  the practice of direct-entry midwifery. For the purpose of this section, the practice of direct-entry midwifery means the advising, attending, or assisting of a woman during pregnancy, labor, natural childbirth, or the postpartum period. Except as authorized in 37-27-302, a direct-entry midwife may not dispense or administer a prescription drug, as those terms are defined in 37-7-101.

     (2)  Licensees referred to in subsection (1) of this section who are licensed to practice a limited field of healing arts shall confine themselves to the field for which they are licensed or registered and to the scope of their respective licenses and, with the exception of those licensees who hold a medical degree, may not use the title "M.D." or any word or abbreviation to indicate or to induce others to believe that they are engaged in the diagnosis or treatment of persons afflicted with disease, injury, or defect of body or mind except to the extent and under the conditions expressly provided by the law under which they are licensed."

     Section 3.  Section 37-8-103, MCA, is amended to read:

     "37-8-103.  Exemptions -- limitations on authority conferred. (1) This chapter may not be construed as prohibiting:

     (a)  gratuitous nursing by friends or members of the family;

     (b)  incidental care of the sick by domestic servants or persons primarily employed as housekeepers;

     (c)  nursing assistance in the case of an emergency;

     (d)  the practice of nursing by students enrolled in approved nursing education programs;

     (e)  the practice of nursing in this state by any legally qualified nurse of another state whose engagement requires the nurse to accompany and care for a patient temporarily residing in this state during the period of one engagement not to exceed 6 months in length, provided that person does not represent to the public that the person is a nurse licensed to practice in this state;

     (f)  the practice of any legally qualified nurse of another state who is employed by the United States government or any bureau, division, or agency of the United States while in the discharge of that nurse's official duties;

     (g)  nursing or care of the sick, with or without compensation, when done in connection with the practice of the religious tenets of any well-established religion or denomination by adherents of the religion or denomination;

     (h)  nursing or care of a minor who is in the care of a licensed foster parent, to the same extent that the care may be provided by a parent or guardian; and

     (i)  the execution of a death sentence pursuant to 46-19-103; and

     (j)  nursing tasks delegated by licensed nurses to unlicensed persons according to rules adopted by the board.

     (2)  This chapter may not be construed:

     (a)  as conferring any authority to practice medicine, surgery, or any combination of medicine or surgery;

     (b)  to confer any authority to practice any of the healing arts prescribed by law to be practiced in the state of Montana; or

     (c)  to permit any person to undertake the treatment of disease by any of the methods employed in the healing arts unless the licensee has been qualified under the applicable law or laws licensing the practice of those professions or healing arts in the state of Montana.

     (3)  (a) This chapter may not be construed to apply to a personal assistant performing health maintenance activities and acting at the direction of a person with a disability.

     (b)  The following definitions apply to this subsection:

     (i)  "Health care professional" means an individual licensed pursuant to Title 37 as a physician assistant-certified, nurse practitioner, registered nurse, or occupational therapist or a medical social worker working as a member of a case management team for the purposes of the home- and community-based services program of the department of public health and human services.

     (ii) "Health maintenance activities" includes urinary systems management, bowel treatments, administration of medications, and wound care if the activities in the opinion of the physician or other health care professional for the person with a disability could be performed by the person if the person were physically capable and if the procedure may be safely performed in the home.

     (iii) "Physician" means an individual licensed pursuant to Title 37, chapter 3."

     Section 4.  Section 44-5-103, MCA, is amended to read:

     "44-5-103.  Definitions. As used in this chapter, the following definitions apply:

     (1)  "Access" means the ability to read, change, copy, use, transfer, or disseminate criminal justice information maintained by criminal justice agencies.

     (2)  "Administration of criminal justice" means the performance of any of the following activities: detection, apprehension, detention, pretrial release, posttrial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. It includes criminal identification activities and the collection, storage, and dissemination of criminal justice information.

     (3)  "Confidential criminal justice information" means:

     (a)  criminal investigative information;

     (b)  criminal intelligence information;

     (c)  fingerprints and photographs;

     (d)  criminal justice information or records made confidential by law; and

     (e)  any other criminal justice information not clearly defined as public criminal justice information.

     (4)  (a) "Criminal history record information" means information about individuals collected by criminal justice agencies consisting of identifiable descriptions and notations of arrests; detentions; the filing of complaints, indictments, or informations and dispositions arising therefrom; sentences; correctional status; and release. It includes identification information, such as fingerprint records or photographs, unless the information is obtained for purposes other than the administration of criminal justice.

     (b)  Criminal history record information does not include:

     (i)  records of traffic offenses maintained by the department of justice; or

     (ii) court records.

     (5)  (a) "Criminal intelligence information" means information associated with an identifiable individual, group, organization, or event compiled by a criminal justice agency:

     (i)  in the course of conducting an investigation relating to a major criminal conspiracy, projecting potential criminal operation, or producing an estimate of future major criminal activities; or

     (ii) in relation to the reliability of information including information derived from reports of informants or investigators or from any type of surveillance.

     (b)  Criminal intelligence information does not include information relating to political surveillance or criminal investigative information.

     (6)  "Criminal investigative information" means information associated with an individual, group, organization, or event compiled by a criminal justice agency in the course of conducting an investigation of a crime or crimes. It includes information about a crime or crimes derived from reports of informants or investigators or from any type of surveillance. It does not include criminal intelligence information.

     (7)  "Criminal justice agency" means:

     (a)  any court with criminal jurisdiction;

     (b)  any federal, state, or local government agency designated by statute or by a governor's executive order to perform as its principal function the administration of criminal justice;

     (c)  any local government agency not included under subsection (7)(b) that performs as its principal function the administration of criminal justice pursuant to an ordinance or local executive order; or

     (d)  any agency of a foreign nation that has been designated by that nation's law or chief executive officer to perform as its principal function the administration of criminal justice and that has been approved for the receipt of criminal justice information by the Montana attorney general, who may consult with the United States department of justice.

     (8)  "Criminal justice information" means information relating to criminal justice collected, processed, or preserved by a criminal justice agency. It does not include the administrative records of a criminal justice agency.

     (9)  "Criminal justice information system" means a system, automated or manual, operated by foreign, federal, regional, state, or local governments or governmental organizations for collecting, processing, preserving, or disseminating criminal justice information. It includes equipment, facilities, procedures, and agreements.

     (10) (a) "Disposition" means information disclosing that criminal proceedings against an individual have terminated and describing the nature of the termination or information relating to sentencing, correctional supervision, release from correctional supervision, the outcome of appellate or collateral review of criminal proceedings, or executive clemency. Criminal proceedings have terminated if a decision has been made not to bring charges or criminal proceedings have been concluded, abandoned, or indefinitely postponed.

     (b)  Particular dispositions include but are not limited to:

     (i)  conviction at trial or on a plea of guilty;

     (ii) acquittal;

     (iii) acquittal by reason of mental disease or defect;

     (iv) acquittal by reason of mental incompetence;

     (v)  the sentence imposed, including all conditions attached to the sentence by the sentencing judge;

     (vi) deferred imposition of sentence with any conditions of deferral;

     (vii) nolle prosequi;

     (viii) nolo contendere plea;

     (ix) deferred prosecution or diversion;

     (x)  bond forfeiture;

     (xi) death;

     (xii)(xi) release as a result of a successful collateral attack;

     (xiii)(xii) dismissal of criminal proceedings by the court with or without the commencement of a civil action for determination of mental incompetence or mental illness;

     (xiv)(xiii) a finding of civil incompetence or mental illness;

     (xv)(xiv) exercise of executive clemency;

     (xvi)(xv) correctional placement on probation or parole or release; or

     (xvii)(xvi) revocation of probation or parole.

     (c)  A single arrest of an individual may result in more than one disposition.

     (11) "Dissemination" means the communication or transfer of criminal justice information to individuals or agencies other than the criminal justice agency that maintains the information. It includes confirmation of the existence or nonexistence of criminal justice information.

     (12) "Public criminal justice information" means information:

     (a)  made public by law;

     (b)  of court records and proceedings;

     (c)  of convictions, deferred sentences, and deferred prosecutions;

     (d)  of postconviction proceedings and status;

     (e)  originated by a criminal justice agency, including:

     (i)  initial offense reports;

     (ii) initial arrest records;

     (iii) bail records; and

     (iv) daily jail occupancy rosters;

     (f)  considered necessary by a criminal justice agency to secure public assistance in the apprehension of a suspect; or

     (g)  statistical information.

     (13) "State repository" means the recordkeeping systems maintained by the department of justice pursuant to 44-2-201 in which criminal history record information is collected, processed, preserved, and disseminated.

     (14) "Statistical information" means data derived from records in which individuals are not identified or identification is deleted and from which neither individual identity nor any other unique characteristic that could identify an individual is ascertainable."

     Section 5.  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:

     (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) "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;

     (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) "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 6.  Section 45-5-102, MCA, is amended to read:

     "45-5-102.  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 7.  Section 45-5-303, MCA, is amended to read:

     "45-5-303.  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 8.  Section 45-5-503, MCA, is amended to read:

     "45-5-503.  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.

     (c)  If the offender was previously convicted of an offense under this section or of an offense under the laws of another state or of the United States that if committed in this state would be an offense under this section and if the offender inflicted serious bodily injury upon a person in the course of committing each offense, the offender shall be:

     (i)  punished by death as provided in 46-18-301 through 46-18-310; or

     (ii) punished as provided in 46-18-219.

     (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 9.  Section 46-4-201, MCA, is amended to read:

     "46-4-201.  Inquest -- definition -- when held -- how conducted. (1) An inquest is a formal inquiry into the causes of and circumstances surrounding the death of a person and is conducted by the coroner before a coroner's jury.

     (2)  The coroner may hold an inquest only if requested to do so by the county attorney of the county in which death occurred or by the county attorney of the county in which the acts or events causing death occurred. However, the county attorney shall order the coroner to hold an inquest if the death of a person occurs:

     (a)  in a prison, jail, or other correctional facility and is not caused by the terminal condition, as defined in 50-9-102, of, or the execution of a death penalty upon, the person while the person is incarcerated in the prison, jail, or other correctional facility because of conviction of a criminal offense. This subsection (2)(a) applies to a death caused by a terminal condition only if the person was under medical care at the time of death.

     (b) while a person is being taken into custody or is in the custody of a peace officer or if the death is caused by a peace officer, except when criminal charges have been or will be filed.

     (3)  If an inquest is held, the proceedings are public. The coroner shall conduct the inquest with the aid and assistance of the county attorney. The coroner shall, and the county attorney may, examine each witness, after which the witness may be examined by the jurors. The inquest must be held in accordance with this part.

     (4)  (a) A coroner who also serves as a peace officer may not conduct an inquest into the death of a person who:

     (i)  died in a prison, jail, or other correctional facility;

     (ii) died while in the custody of a peace officer; or

     (iii) was killed by a peace officer.

     (b)  If a coroner is disqualified under subsection (4)(a), the county attorney shall request a qualified coroner of a neighboring county to conduct the inquest. The expenses of a coroner fulfilling the request, including salary, must be paid by the requesting county."

     Section 10.  Section 46-16-122, MCA, is amended to read:

     "46-16-122.  Absence of defendant from trial. (1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant's counsel is authorized to act on the defendant's behalf, the court shall proceed with the trial unless good cause for continuance exists.

     (2)  If the defendant's counsel is not authorized to act on the defendant's behalf as provided in subsection (1) or if the defendant is not represented by counsel, the court, in its discretion, may do one or more of the following:

     (a)  order a continuance;

     (b)  order bail forfeited;

     (c)  issue an arrest warrant; or

     (d)  proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.

     (3)  After the trial of a felony offense has commenced in the defendant's presence, the absence of the defendant during the trial may not prevent the trial from continuing up to and including the return of a verdict if the defendant:

     (a)  has been removed from the courtroom for disruptive behavior after receiving a warning that removal will result if the defendant persists in conduct that is so disruptive that the trial cannot be carried on with the defendant in the courtroom; or

     (b)  is voluntarily absent and the offense is not one that is punishable by death life imprisonment.

     (4)  Nothing in this section limits the right of the court to order the defendant to be personally present at the trial for purposes of identification unless defense counsel stipulates to the issue of identity."

     Section 11.  Section 46-18-102, MCA, is amended to read:

     "46-18-102.  Rendering judgment and pronouncing sentence -- use of two-way electronic audio-video communication. (1) The judgment must be rendered in open court. For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, a judgment rendered 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 judgment rendered 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.

     (2)  If the verdict or finding is not guilty, judgment must be rendered immediately and the defendant must be discharged from custody or from the obligation of a bail bond.

     (3)  (a) Except as provided in 46-18-301, if If the verdict or finding is guilty, sentence must be pronounced and judgment rendered within a reasonable time.

     (b)  When the sentence is pronounced, the judge shall clearly state for the record the reasons for imposing the sentence."

     Section 12.  Section 46-18-115, MCA, is amended to read:

     "46-18-115.  Sentencing hearing -- use of two-way electronic audio-video communication. Before imposing sentence or making any other disposition upon acceptance of a plea or upon a verdict or finding of guilty, the court shall conduct a sentencing hearing, without unreasonable delay, as follows:

     (1)  The court shall afford the parties an opportunity to be heard on any matter relevant to the disposition, including the applicability of sentencing enhancement provisions, mandatory minimum sentences, persistent felony offender status, or an exception to these matters.

     (2)  If there is a possibility of imposing the death penalty, the court shall hold a hearing as provided by 46-18-301.

     (3)  Except as provided in 46-11-701 and 46-16-120 through 46-16-123, the court shall address the defendant personally to ascertain whether the defendant wishes to make a statement and to present any information in mitigation of punishment or reason why the defendant should not be sentenced. If the defendant wishes to make a statement, the court shall afford the defendant a reasonable opportunity to do so. For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, the requirement that the court address the defendant personally may be satisfied by the use of two-way electronic audio-video communication. 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.

     (4)(3)  (a) The court shall permit the victim to present a statement concerning the effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion regarding appropriate sentence. At the victim's option, the victim may present the statement in writing before the sentencing hearing or orally under oath at the sentencing hearing, or both.

     (b)  The court shall give copies of any written statements of the victim to the prosecutor and the defendant prior to imposing sentence.

     (c)  The court shall consider the victim's statement along with other factors. However, if the victim's statement includes new material facts upon which the court intends to rely, the court shall allow the defendant adequate opportunity to respond and may continue the sentencing hearing if necessary.

     (5)(4)  The court shall impose sentence or make any other disposition authorized by law.

     (6)(5)  In felony cases, the court shall specifically state all reasons for the sentence, including restrictions, conditions, or enhancements imposed, in open court on the record and in the written judgment."

     Section 13.  Section 46-18-219, MCA, is amended to read:

     "46-18-219.  Life sentence without possibility of release. (1) (a) Except as provided in subsection (3), 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:

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

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

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

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

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

     (b)  Except as provided in subsection (3), 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:

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

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

     (iii) 45-5-302, kidnapping;

     (iv) 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 14.  Section 46-18-220, MCA, is amended to read:

     "46-18-220.  Sentences for certain offenses committed in state prison -- death penalty. A person serving a sentence of imprisonment in the state prison convicted of the offense of attempted deliberate homicide, aggravated assault, or aggravated kidnapping committed while incarcerated at the state prison shall be sentenced to death or life imprisonment as provided in 46-18-301 through 46-18-310."

     Section 15.  Section 46-18-604, MCA, is amended to read:

     "46-18-604.  Transmittal of sentencing data to supreme court -- compilation. (1) Except as provided in subsection (2), the clerk of district court shall record on forms provided by the clerk of the supreme court the following sentencing data for each defendant sentenced:

     (a)  the name of the case;

     (b)  whether the conviction was by verdict or plea;

     (c)  the fine or imprisonment, or both, allowed by law;

     (d)  the actual fine or imprisonment, or both, imposed;

     (e)  the percentage of fine or imprisonment, or both, allowed by law that is actually imposed;

     (f)  the amount of fine or number of years of imprisonment, or both, that are suspended; and

     (g)  the percentage of fine or imprisonment, or both, imposed that is suspended.

     (2)  Whenever a sentence of death or of life imprisonment is allowed by law, this fact must be shown in the report, together with the case name and the actual sentence imposed.

     (3)  The clerk of district court shall report the names of the cases in which sentencing was deferred.

     (4)  The clerk of district court shall report the reasons given by the judge for the disposition of every case by attaching an extract of that portion of the judgment setting forth the basis for the sentence.

     (5)  The sentencing judge shall sign the form containing the information recorded by the clerk of district court pursuant to this section.

     (6)  The clerk of district court shall on a quarterly basis total for each judge the data recorded pursuant to subsections (1) and (2), sign the report, and forward all such data to the clerk of the supreme court.

     (7)  The clerk of the supreme court shall compile the reports submitted by the district court clerks and distribute the data to all district court clerks and any interested party on April 1 of each year.

     (8)  The clerk of the supreme court shall provide a form for the recording of data required by this section."

     Section 16.  Section 46-19-101, MCA, is amended to read:

     "46-19-101.  Commitment of defendant. Upon rendition of judgment after pronouncement of a sentence imposing punishment of imprisonment or death, the court shall commit the defendant to the custody of the sheriff, who shall deliver the defendant to the place of his the defendant's confinement or execution."

     Section 17.  Section 46-20-204, MCA, is amended to read:

     "46-20-204.  Stay of execution and relief Relief pending appeal. (1) If an appeal is taken, a sentence of death shall be stayed by order of the trial court until final order by the supreme court.

     (2)  If an appeal is taken and the defendant is admitted to bail, a sentence of imprisonment shall must be stayed by the trial court.

     (3)(2)  If an appeal is taken, a sentence to pay a fine or a fine and costs shall must be stayed by the trial court or by the reviewing court.

     (4)(3)  If an appeal is taken and the accused was admitted to probation, he the accused shall remain on probation or post bail."

     Section 18.  Section 46-21-201, MCA, is amended to read:

     "46-21-201.  (Subsection (3)(a) effective on occurrence of contingency) Proceedings on petition. (1) (a) Unless the petition and the files and records of the case conclusively show that the petitioner is not entitled to relief, the court shall cause notice of the petition to be served upon the county attorney in the county in which the conviction took place and upon the attorney general and order them to file a responsive pleading to the petition. Following its review of the responsive pleading, the court may dismiss the petition as a matter of law for failure to state a claim for relief or it may proceed to determine the issue.

     (b)  If the death sentence has been imposed, upon receipt of the response or responses to the petition, the court shall promptly hold a conference to determine a schedule for the expeditious resolution of the proceeding. The court shall issue a decision within 90 days after the hearing on the petition or, if there is no hearing, within 90 days after the filing of briefs as allowed by rule or by court order. If the decision is not issued during that period, a party may petition the supreme court for a writ of mandate or other appropriate writ or relief to compel the issuance of a decision.

     (c)  To the extent that they are applicable and are not inconsistent with this chapter, the rules of procedure governing civil proceedings apply to the proceeding.

     (2)  If the death sentence has not been imposed and a hearing is required or if the interests of justice require, the court shall appoint counsel for a petitioner who qualifies for the appointment of counsel under Title 46, chapter 8, part 1.

     (3)  (a) Within 30 days after a conviction for which a death sentence was imposed becomes final, the sentencing court shall notify the sentenced person that if the person is indigent and wishes to file a petition under this chapter, the court will appoint counsel who meets the Montana supreme court's standards for competency of appointed counsel in proceedings under this chapter for an indigent person sentenced to death.

     (b)  Within 75 days after a conviction for which a death sentence was imposed upon a person who wishes to file a petition under this chapter becomes final, the sentencing court shall:

     (i)  appoint counsel to represent the person if the court finds that the person is indigent and either has accepted the offer of appointment or is unable to competently decide whether to accept the offer of appointed counsel;

     (ii) if the offer is rejected by a person who understands the legal consequences of the rejection, enter findings of fact after a hearing, if the court determines that a hearing is necessary, stating that the person rejected the offer with an understanding of the legal consequences of the rejection; or

     (iii) if the court finds that the petitioner is not indigent, deny appointment of counsel.

     (c)  The court may not appoint counsel who has previously represented the person at any stage in the case unless the person and the counsel expressly agree to the appointment.

     (d)  If a petitioner entitled to counsel under this subsection (3) is not indigent at the time that the court's determination is made under subsection (3)(b) but thereafter becomes indigent at any stage of the proceedings, the court shall appoint counsel as provided in subsection (3)(b)(i).

     (e)  The expenses of counsel appointed pursuant to this subsection (3) must be paid as provided in 46-8-201.

     (f)  Violation of this subsection (3) is not a basis for a claim or relief under this chapter.

     (4)  The court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner that the court has ordered or to which the parties have agreed.

     (5)(4)  The court may receive proof of affidavits, depositions, oral testimony, or other evidence. In its discretion, the court may order the petitioner brought before the court for the hearing.

     (6)(5)  If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and any supplementary orders as to reassignment, retrial, custody, bail, or discharge that may be necessary and proper. If the court finds for the prosecution, the petition must be dismissed."

     Section 19.  Section 46-23-201, MCA, is amended to read:

     "46-23-201.  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 prison, 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 20.  Section 46-23-210, MCA, is amended to read:

     "46-23-210.  Medical parole. (1) The board may release on medical parole by appropriate order a person placed in a correctional institution or program, except a person under sentence of death. To be eligible for a medical parole, a person must have an examination and written diagnosis by a physician licensed under Title 37 to practice medicine. The diagnosis must include:

     (a)  a determination that the person suffers from an incapacitating physical condition, disease, or syndrome;

     (b)  a description of the physical condition, disease, or syndrome and a detailed description of the person's physical incapacity; and

     (c)  a prognosis addressing the likelihood of the person's recovery from the physical condition, disease, or syndrome and the extent of any potential recovery.

     (2)  The diagnosis must be reviewed and accepted by the department before the board may consider granting a medical parole. The board may not grant a medical parole unless the incapacitating physical condition, disease, or syndrome renders the person highly unlikely to present a clear and present danger to public safety.

     (3)  The board shall require as a condition of medical parole that the person agree to placement in an environment chosen by the department during the parole period, including but not limited to a hospital, nursing home, or family home. The board may require as a condition of parole that the person agree to periodic examinations and diagnoses at the person's expense. Reports of each examination and diagnosis must be submitted to the board and department by the examining physician. If either the board or department determines that the person's physical capacity has improved to the extent that the person is likely to pose a possible detriment to society, the board may revoke the parole and return the person to the custody of the department.

     (4)  Medical parole may be requested by the board, the department, an incarcerated person, or an incarcerated person's parent, grandparent, child, or sibling by submitting the request in writing to the administrator of the correctional institution in which the person is incarcerated.

     (5)  A grant or denial of medical parole does not affect the person's eligibility for nonmedical parole.

     (6)  Sections 46-23-203, 46-23-205 through 46-23-207, and 46-23-215 through 46-23-218 apply to nonmedical parole."

     Section 21.  Section 46-23-301, MCA, is amended to read:

     "46-23-301.  Cases of executive clemency -- application for clemency -- definitions. (1) (a) "Clemency" means kindness, mercy, or leniency that may be exercised by the governor toward a convicted person. The governor may grant clemency in the form of:

     (i)  the remission of fines or forfeitures;

     (ii) the commutation of a sentence to one that is less severe;

     (iii) respite; or

     (iv) pardon.

     (b)  "Pardon" means a declaration of record that an individual is to be relieved of all legal consequences of a prior conviction.

     (2)  A person convicted of a crime need not exhaust judicial or administrative remedies before filing an application for clemency, except that an application may not be filed with respect to a sentence of death while an automatic review proceeding is pending before the Montana supreme court under 46-18-307 through 46-18-310. The board shall consider cases of executive clemency only upon application. All applications for executive clemency must be made to the board. An application for executive clemency in capital cases may be filed with the board no later than 10 days after the district court sets a date of execution. Applications may be filed only by the person convicted of the crime, by the person's attorney acting on the person's behalf and with the person's consent, or by a court-appointed next friend, guardian, or conservator acting on the person's behalf. The board shall cause an investigation to be made of and base any recommendation it makes on:

     (a)  all the circumstances surrounding the crime for which the applicant was convicted; and

     (b)  the individual circumstances relating to social conditions of the applicant prior to commission of the crime, at the time the offense was committed, and at the time of the application for clemency.

     (3)  The board shall advise the governor and recommend action to be taken. The board may recommend that clemency be granted or denied. In noncapital cases, if If the board recommends that clemency be denied, the application may not be forwarded to the governor and the governor may not take action on the case. In capital cases, the board shall transmit the application and either a recommendation that clemency be granted or a recommendation that clemency be denied to the governor. The governor is not bound by any recommendation of the board, but the governor shall review the record of the hearing and the board's recommendation before granting or denying clemency. The governor has the final authority to grant or deny clemency in those cases forwarded to the governor. An appeal may not be taken from the governor's decision to grant or deny clemency."

     Section 22.  Section 46-23-307, MCA, is amended to read:

     "46-23-307.  Decision of board. Within 30 days after the hearing of any capital case or in noncapital cases where in which the decision is made to recommend that clemency be granted, the board must shall make a decision in writing, and if such the decision be is made to recommend executive clemency, the copy of the decision together with all papers used in each case shall must be immediately transmitted to the governor."

     Section 23.  Section 46-23-315, MCA, is amended to read:

     "46-23-315.  Authority of governor to grant respite -- application. The governor has the power to grant respites after conviction and judgment for any offenses committed against the criminal laws of the state for the time that the governor thinks proper. The governor may grant a respite upon application of a person authorized to apply for executive clemency and prior to any review or recommendation by the board of pardons and parole. A respite must be of temporary duration for a definite period of time. Any respite that is granted that stays the execution of a death warrant has the effect of postponing the execution of the warrant. In that case, if clemency is not granted, the death warrant is again in effect at the expiration of the period of respite and the execution must take place on the date of expiration of the respite."

     Section 24.  Section 46-30-301, MCA, is amended to read:

     "46-30-301.  Arrest of accused without warrant. The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term of 1 year or more. When arrested under this section, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him the person under oath setting forth the ground for the arrest as in 46-30-227. After the complaint is made, his the person's answer must be heard as if he the person had been arrested on a warrant."

     Section 25.  Section 46-30-303, MCA, is amended to read:

     "46-30-303.  Bail while awaiting requisition. Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond or undertaking with sufficient sureties and in such the sum as he deems the judge considers proper, conditioned for his the prisoner's appearance before him the judge at a time specified in such the bond or undertaking and for his the prisoner's surrender to be arrested upon the warrant of the governor of this state."

     Section 26.  Section 53-9-103, MCA, is amended to read:

     "53-9-103.  Definitions. As used in this part, the following definitions apply:

     (1)  "Claimant" means any of the following claiming compensation under this part:

     (a)  a victim;

     (b)  a dependent of a deceased victim; or

     (c)  an authorized person acting on behalf of any of them.

     (2)  "Collateral source" means a source of benefits, other than welfare benefits, or advantages for economic loss otherwise compensable under this part that the claimant has received or that is readily available to the claimant from:

     (a)  the offender;

     (b)  the government of the United States or any agency thereof, a state or any of its political subdivisions, or an instrumentality of two or more states, unless the law providing for the benefits or advantages makes them excess or secondary to benefits under this part;

     (c)  social security, medicare, and medicaid;

     (d)  workers' compensation;

     (e)  wage continuation programs of any employer;

     (f)  proceeds of a contract of insurance payable to the claimant for loss that was sustained because of the criminally injurious conduct;

     (g)  a contract, including an insurance contract, providing hospital and other health care services or benefits for disability. A contract in this state may not provide that benefits under this part are a substitute for benefits under the contract or that the contract is a secondary source of benefits and benefits under this part are a primary source.

     (h)  a crime victims compensation program operated by the state in which the victim was injured or killed that compensates residents of this state injured or killed in that state; or

     (i)  any other third party.

     (3)  "Criminally injurious conduct" means conduct that:

     (a)  occurs or is attempted in this state or an act of international terrorism, as defined in 18 U.S.C. 2331, committed outside of the United States against a resident of this state;

     (b)  results in bodily injury or death; and

     (c)  is punishable by fine, or imprisonment, or death or would be so punishable except that the person engaging in the conduct lacked capacity to commit the crime under the laws of this state; however, criminally injurious conduct does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle unless the bodily injury or death occurred during the commission of an offense defined in Title 45 that requires the mental state of purposely as an element of the offense or the injury or death was inflicted by the driver of a motor vehicle who is found by the division, by a preponderance of the evidence, to have been operating the motor vehicle while under the influence, as that term is defined in 61-8-401; or

     (d)  is committed in a state without a crime victims compensation program that covers a resident of this state if the conduct meets the requirements in subsections (3)(b) and (3)(c).

     (4)  "Dependent" means a natural person who is recognized under the law of this state to be wholly or partially dependent upon the victim for care or support and includes a child of the victim conceived before the victim's death but born after the victim's death, including a child that is conceived as a result of the criminally injurious conduct.

     (5)  "Division" means the division of crime control of the department of justice.

     (6)  "Victim" means a person who suffers bodily injury or death as a result of:

     (a)  criminally injurious conduct;

     (b)  the person's good faith effort to prevent criminally injurious conduct; or

     (c)  the person's good faith effort to apprehend a person reasonably suspected of engaging in criminally injurious conduct."

     Section 27.  Section 53-30-403, MCA, is amended to read:

     "53-30-403.  Boot camp incarceration program -- eligibility -- rulemaking. (1) The department shall establish a boot camp incarceration program for offenders incarcerated in a correctional institution.

     (2)  In order to be eligible for participation in the boot camp incarceration program, an inmate must:

     (a)  be serving a sentence of at least 1 year in a Montana correctional institution for a felony offense other than a felony punishable by life imprisonment or death;

     (b)  be less than 35 years of age; and

     (c)  pass a physical examination to ensure sufficient health for participation.

     (3)  The boot camp incarceration program must include:

     (a)  as a major component, a strong emphasis on work, physical activity, physical conditioning, and good health practices;

     (b)  a strong emphasis on intensive counseling and treatment programming designed to correct criminal and other maladaptive thought processes and behavior patterns and to instill self-discipline and self-motivation;

     (c)  a detailed, clearly written explanation of program goals, objectives, rules, and criteria that must be provided to, read by, and signed by all prospective enrollees; and

     (d)  a maximum enrollment period of 120 days.

     (4)  (a) Inmate participation in the boot camp incarceration program must be voluntary. The admission of an inmate to the program is discretionary with the department. Enrollment may be revoked only:

     (i)  at the participant's request; or

     (ii) upon written departmental documentation of a participant's failure or refusal to comply with program requirements.

     (b)  A revocation of program enrollment is not subject to appeal. An inmate may not be admitted to the boot camp incarceration program more than twice.

     (5)  The department may adopt rules for the establishment and administration of the boot camp incarceration program."

     NEW SECTION.  Section 28.  Repealer. Sections 45-3-109, 46-18-301, 46-18-302, 46-18-303, 46-18-304, 46-18-305, 46-18-306, 46-18-307, 46-18-308, 46-18-309, 46-18-310, 46-19-103, 46-19-201, 46-19-202, 46-19-203, and 46-19-204, MCA, are repealed.

     NEW SECTION.  Section 29.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

     NEW SECTION.  Section 30.  Effective date. [This act] is effective on passage and approval.

     NEW SECTION.  Section 31.  Applicability. [This act] applies to all sentences imposed after [the effective date of this act].

- END -

Latest Version of HB 278 (HB0278.01)
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