Montana Code 46-18-203. Revocation of suspended or deferred sentence
46-18-203. Revocation of suspended or deferred sentence. (1) Upon the filing of a petition for revocation showing probable cause that the offender has violated any condition of a sentence, any condition of a deferred imposition of sentence, or any condition of supervision after release from imprisonment imposed pursuant to 45-5-503(4), 45-5-507(5), 45-5-601(3), 45-5-625(4), or 45-5-711, the judge may issue an order for a hearing on revocation. The order must require the offender to appear at a specified time and place for the hearing and be served by delivering a copy of the petition and order to the offender personally. The judge may also issue an arrest warrant directing any peace officer or a probation and parole officer to arrest the offender and bring the offender before the court.
Terms Used In Montana Code 46-18-203
- Arrest: means taking a person into custody in the manner authorized by law. See Montana Code 46-1-202
- Arrest: Taking physical custody of a person by lawful authority.
- Court: means a place where justice is judicially administered and includes the judge of the court. See Montana Code 46-1-202
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Judge: means a person who is vested by law with the power to perform judicial functions. See Montana Code 46-1-202
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Offense: means a violation of any penal statute of this state or any ordinance of its political subdivisions. See Montana Code 46-1-202
- Parole: means the release to the community of a prisoner by a decision of the board of pardons and parole prior to the expiration of the prisoner's term subject to conditions imposed by the board of pardons and parole and the supervision of the department of corrections. See Montana Code 46-1-202
- Peace officer: means any person who by virtue of the person's office or public employment is vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person's authority. See Montana Code 46-1-202
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Probation: means release by the court without imprisonment of a defendant found guilty of a crime. See Montana Code 46-1-202
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Prosecutor: means an elected or appointed attorney who is vested by law with the power to initiate and carry out criminal proceedings on behalf of the state or a political subdivision. See Montana Code 46-1-202
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Sentence: means the judicial disposition of a criminal proceeding upon a plea of guilty or nolo contendere or upon a verdict or finding of guilty. See Montana Code 46-1-202
- Sex: means the organization of the body parts and gametes for reproduction in human beings and other organisms. See Montana Code 1-1-201
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
(2)The petition for a revocation must be filed with the sentencing court either before the period of suspension or deferral has begun or during the period of suspension or deferral but not after the period has expired. Expiration of the period of suspension or deferral after the petition is filed does not deprive the court of its jurisdiction to rule on the petition.
(3)The provisions pertaining to bail, as set forth in Title 46, chapter 9, are applicable to persons arrested pursuant to this section.
(4)Without unnecessary delay and no more than 60 days after arrest, the offender must be brought before the judge, and at least 10 days prior to the hearing the offender must be advised of:
(a)the allegations of the petition;
(b)the opportunity to appear and to present evidence in the offender’s own behalf;
(c)the opportunity to question adverse witnesses; and
(d)the right to be represented by counsel at the revocation hearing pursuant to Title 46, chapter 8, part 1.
(5)A hearing is required before a suspended or deferred sentence can be revoked or the terms or conditions of the sentence can be modified unless:
(a)the offender admits the allegations and waives the right to a hearing; or
(b)the relief to be granted is favorable to the offender and the prosecutor, after having been given notice of the proposed relief and a reasonable opportunity to object, has not objected. An extension of the term of probation is not favorable to the offender for the purposes of this subsection (5)(b).
(6)(a) At the hearing, the prosecution shall prove, by a preponderance of the evidence, that there has been a violation of:
(i)the terms and conditions of the suspended or deferred sentence; or
(ii)a condition of supervision after release from imprisonment imposed pursuant to 45-5-503(4), 45-5-507(5), 45-5-601(3), 45-5-625(4), or 45-5-711.
(b)However, when a failure to pay restitution is the basis for the petition, the offender may excuse the violation by showing sufficient evidence that the failure to pay restitution was not attributable to a failure on the offender’s part to make a good faith effort to obtain sufficient means to make the restitution payments as ordered.
(7)(a) If the judge finds that the offender has violated the terms and conditions of the suspended or deferred sentence by committing either compliance violations or noncompliance violations, or both, the judge may:
(i)continue the suspended or deferred sentence without a change in conditions;
(ii)continue the suspended sentence with modified or additional terms and conditions, which may include placement in:
(A)a secure facility designated by the department for up to 9 months; or
(B)a community corrections facility or program designated by the department for up to 9 months, including but not limited to placement in a prerelease center, sanction or hold bed, transitional living program, enhanced supervision program, relapse intervention bed, chemical dependency treatment, or 24/7 sobriety program;
(iii)revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence; or
(iv)if the sentence was deferred, impose any sentence that might have been originally imposed.
(b)If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time, consult the records and recollection of the probation and parole officer, and allow all of the elapsed time served without any record or recollection of violations as a credit against the sentence. If the judge determines that elapsed time should not be credited, the judge shall state the reasons for the determination in the order. Credit must be allowed for time served in a detention center or for home arrest time already served.
(c)If the judge finds that the offender has not violated a term or condition of a suspended or deferred sentence, the judge is not prevented from setting, modifying, or adding conditions of probation as provided in 46-23-1011.
(8)If the judge finds that the prosecution has not proved, by a preponderance of the evidence, that there has been a violation of the terms and conditions of the suspended or deferred sentence, the petition must be dismissed and the offender, if in custody, must be immediately released.
(9)All sanction and placement decisions must be documented in the offender’s file.
(10)As used in this section:
(a)”absconding” means when an offender deliberately makes the offender’s whereabouts unknown to a probation and parole officer or fails to report for the purposes of avoiding supervision, and reasonable efforts by the probation and parole officer to locate the offender have been unsuccessful; and
(b)”compliance violation” means a violation of the conditions of supervision that is not:
(i)a new criminal offense;
(ii)possession of a firearm in violation of a condition of probation;
(iii)behavior by the offender or any person acting at the offender’s direction that could be considered stalking, harassing, or threatening the victim of the offense or a member of the victim’s immediate family or support network;
(iv)absconding; or
(v)failure to enroll in or complete a required sex offender treatment program or a treatment program designed to treat violent offenders.
(11)The provisions of this section apply to any offender whose suspended or deferred sentence is subject to revocation regardless of the date of the offender’s conviction and regardless of the terms and conditions of the offender’s original sentence.