Reserve RESERVE KFM 9.0M3616 Plontana Code aaa Annotations 2 0 1 2 : Criminal Procedure * Access to Legal Services oe SCULRAATMEE LFAatW LTITBQORAADRYY SEP 2 8 2012 OF MONTANA f STATE LAW LIBRARY SEP 2 8 2012 2012 ANNOTATIONS to the . fa HWA mene | MONTANA CODE ANN any . ecu j Code Commissioner & Legal Services Director Todd Everts Staff Attorneys Julianne Burkhardt David Niss Bart Campbell Alexis Sandru Jaret Coles Helen Thigpen Julie Johnson Dan Whyte Legislative Technical Editors Connie Dixon, Chief Legislative Technical Editor Sally Bush, Senior Legislative Technical Editor Jesse Northérner, Legislative Technical Editor Office of Legislative Information Technology Hank Trenk, Director Applications Development Steve Eller, Supervisor Systems Analysts Jim Gordon Mike Allen Central Services Office Susan Byorth Fox, Executive Director Documents Services Manager Ann Patten Proofreader Kip Rusek, Senior Proofreader Distribution & Typesetting Andrew Franks-Ongoy Kevin Hayes Published and Distributed by Montana Legislative Services Division Capitol Bldg Rm 110 — 1301 E 6th Ave PO Box 201706 Helena MT 59620-1706 Telephone (406)444-3064 Fax (406)444-3036 Internet http://leg.mt.gov Printed and Bound by West, a Thomson Reuters business 610 Opperman Dr Kagan MN 55123 2012 ANNOTATIONS to the MONTANA CODE ANNOTATED CONTENTS Volume 1 Volume 8 Table of Session Law to Code — 2011 Titles Table of 2008 Ballot Issues to Code 39. Labor Official Report of the Montana Code 40. Family Law Commissioner — 2011 41. Minors Enabling Act 42. Adoption Constitution of Montana 43. Reserved Title Volume 9 1. General Laws and Definitions Titles Volume 2 44, Law Enforcement Titles 45. Crimes 2. Government Structure and Administration Volume 10 3. Judiciary, Courts Titles 4. Reserved 46. Criminal Procedure 5. Legislative Branch 47. Access to Legal Services 6. Reserved 48. Reserved 7. Local Government 8 and 9. Reserved Volume 11 10. Military Affairs and Disaster and Titles Emergency Services 49. Human Rights 11 and 12. Reserved 50. Health and Safety 13. Elections 51. Reserved 14. Reserved 52. Family Services 53. Social Services and Institutions Volume 3 54-59. Reserved Titles 60. Highways and Transportation 15. Taxation 61. Motor Vehicles 16. Alcohol and Tobacco 62-66. Reserved 17. State Finance 67. Aeronautics 18. Public Contracts 68. Reserved 19. Public Retirement Systems 69. Public Utilities and Carriers 20. Education 21. Reserved Volume 12 22. Libraries, Arts, and Antiquities Titles 70. Property Volume 4 71. Mortgages, Pledges, and Liens Titles 72. Estates, Trusts, and Fiduciary Relationships 23. Parks, Recreation, Sports, and Gambling 73 and 74. Reserved 24. Reserved 75. Environmental Protection 25. Civil Procedure Volume 13 Volume 5 Titles Titles 76. Land Resources and Use 26. Evidence 77. State Lands 27. Civil Liability, Remedies, and Limitations 78 and 79. Reserved Volume 6 80. Agriculture Titles 81. Livestock 28. Contracts and Other Obligations 82. Minerals, Oil, and Gas 29. Reserved 83 and 84. Reserved 30. Trade and Commerce 85. Water Use 86. Reserved Volume 7 87. Fish and Wildlife Titles 88 and 89. Reserved 31. Credit Transactions and Relationships 90. Planning, Research, and Development 32. Financial Institutions 91-99. Reserved 33. Insurance and Insurance Companies 34. Reserved 35. Corporations, Partnerships, and Associations 36. Reserved 37. Professions and Occupations 38. Reserved PREFACE TO VOLUME 10 (Annotations — August 2012) Annotations to this volume include: Case notes of applicable court decisions through: * public domain citation 2011 MT 329 > volume 363 Montana Reports page 277 * volume 271 Pacific Reporter (3rd Series) page 48 Digests of Montana Attorney General’s opinions through: - volume 54 opinion number 7 of the Report and Official Opinions of Attorney General Amendment notes listed under compiler’s comments are intended to explain only amendments made in the year indicated and may not accurately reflect current statutory language because of subsequent amendment. The annotations are provided as a convenience to the user and are not intended to be an exhaustive compilation of the law under a given statute or in a given area. TITLE 46 CRIMINAL PROCEDURE CHAPTER 1 GENERAL PROVISIONS Chapter Commission Comments Source of 1991 Commission Comments: The 1991 comments to this chapter were prepared by the Commission on Criminal Procedure appointed by the Supreme Court. The Commission’s work extended over nearly a decade. The comments were prepared for proposed rules of criminal procedure. The Supreme Court determined that the proposed rules would be better suited to adoption by the Legislature. The Commission received assistance from the State Bar of Montana and the Montana County Attorneys’ Association. The following were members of the Commission at various times: Robert L. Deschamps III, Chairman; Honorable Thomas A. Olson; Honorable Henry Loble; Honorable Leif B. Erickson; Professor James T. Ranney; John P. Connor; Daniel V. Donovan; Gary G. Doran; Harold Hanser; Joe L. Hegel; Ted O. Lympus; Marc F. Racicot; and Michael J. Sherwood. The Commission also received valuable assistance from its intern, Peter Carroll, and from Leslie Halligan, who compiled the Commission’s work. The Commission’s work ultimately resulted in the enactment of Chapter 800, Laws of 1991. The commission comments were substantially rewritten by the Code Commissioner and his staff to reflect changes from the time the rules were initially proposed and to reflect the change from a rules format to a statute format. The Code Commissioner has substituted references to “statute” for “rule” when appropriate and has substituted MCA citations for references to proposed rules. The Code Commissioner has inserted “1987” in MCA references that originated with the Commission because that is the version of the MCA the Commission originally used. The annotator has also deleted references to “proposed” material that has been adopted. Bracketed material has been inserted to indicate changes made by the 1991 Legislature that were not based on the Commission’s proposal. The Code Commissioner extends his thanks to John P. Connor and Michael J. Sherwood for their review of the revised comments. 1991 Chapter Comments: These statutes govern the practice and procedure in all criminal proceedings in the courts of Montana except when provision for a different procedure is specifically provided by law. These statutes are intended to provide for the just determination of all criminal proceedings. The statutes must be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. Chapter Compiler’s Comments Section Not Codified: Section 95-202, R.C.M. 1947, was not codified in the MCA because it is redundant with 1-2-105. This section has not been repealed and is still valid law. Citation may be made to sec. 1, Ch. 196, L. 1967. Chapter Case Notes Police Commission Hearings: In view of the limited nature of the proceedings and the lack of legal expertise on the part of the Commissioners, the provisions of this title do not govern Police Commission hearings. Steer v. Missoula, 169 M 389, 547 P2d 843 (1976). Chapter Law Review Articles Montana Supreme Court Survey—Criminal Procedure, Terrell, 45 Mont. L. Rev. 353 (1984). Montana’s Judicial System—A Blueprint for Modernization, Mason & Crowley, 29 Mont. L. Rev. 1 (1967). Part 1 Purpose and Application of Title 46-1-103. Scope — purpose — construction. Case Notes Claim of Prosecutorial Misconduct Unsupported by Fact, Law, or Showing of Prejudice Properly Dismissed: The District Court denied Passmore’s motion for dismissal based on prosecutorial misconduct, and on appeal the Supreme Court affirmed. Passmore’s claim of the prosecutor’s conflict of interest lacked factual support, inasmuch as the District Court examined the claim and found no conflict of interest. The claim also lacked legal support because Passmore 2012 Annotations to the MCA 46-1-202 CRIMINAL PROCEDURE 2 cited no cases or professional standards that defined “conflict of interest” as Passmore did in the claim or that prohibited the prosecutor from filing charges under the circumstances. Last, Passmore failed to demonstrate prejudice, because even if the prosecutor did have a conflict of interest when requesting leave to file an information against Passmore, Passmore was not tried under that information but rather under an amended information filed by the Attorney General’s office 14 months later with permission of the District Court. St. v. Passmore, 2010 MT 34) S00 NLONE, 13 220 oon eo: Search Warrant Procedural Irregularity Not Affecting Defendant’s Substantial Rights: Defendant contended that because of a procedural error on the part of investigating officers who were executing a search warrant, the District Court erred when it did not suppress the seized evidence. The error was detected and corrected within 24 hours. An error in the manner in which notice of seized articles 1s given is an irregularity in the proceedings that does not affect the substantial rights of the accused and thus does not constitute reversible error. The corrected receipt effectively gave defendant notice of seized items. St. v. Abe, 1998 MT 206, 290 M 393, 965 P2d 882, 55 St. Rep. 876 (1998). Appeal of Misdemeanor Conviction From Justice’s Court to District Court — No Record of Oral Pronouncement of Sentence in Justice’s Court — District Court Jurisdiction Upheld: Tweedy was convicted by a Justice’s Court jury of misdemeanor assault and was scheduled for sentencing on April 18, 1989. On April 19, Tweedy filed a notice of appeal to the District Court. The Justice’s Court filed its sentencing order on May 3. Later, in response to a motion by Tweedy to dismiss the underlying charge, the state contended that the District Court had not acquired jurisdiction over Tweedy. The Supreme Court held that since there was no evidence in the record that the sentencing hearing scheduled for April 18 did not, in fact, take place and since, under St. v. Mortenson, 175 M 408, 574 P2d 581 (1978), appeal may be taken within 10 days after sentence is orally pronounced in open court, Tweedy’s notice of appeal was timely filed and the District Court had jurisdiction over the case. The Supreme Court also noted that the later enactment of 46-18-116, which applies to Justices’ Courts by virtue of this section, requiring a signed judgment on the record, should eliminate confusion in the future regarding when the statutory time for appeal begins to run. St. v. Tweedy, 277 M 3138, 922 P2d 1134, 53 St. Rep. 656 (1996). Guilty Plea Not to Be in Writing: Both 46-12-201, regarding the arraignment of an accused, and 46-17-201, regarding the procedure applicable to a plea in Justice’s Court, require that a defendant appear in open court, that there be actual communication between the judge and defendant, that the judge first make the requisite inquiries of and provide mandated information to the defendant, and that a plea be accepted as part of that communicative process. There is no provision in either statute that allows a judge to accept a guilty plea from a defendant in either a felony or misdemeanor case through the expedient of the defendant or defendant’s counsel simply filing a written plea with the court. The Supreme Court expressed its disapproval of the practice and admonished state courts to comply with the statutory mandates. However, 1n this case, defendant was at all times represented by counsel, who was personally involved in the written plea. Because defendant’s substantive rights were not affected, acceptance of the written guilty plea by the trial court was allowed to stand. St. v. Schneiderhan, 261 M 161, 862 P2d 37, 50 St. Rep. 1242 (1993). Part 2 Definitions 46-1-202. Definitions. Compiler’s Comments 2001 Amendment: Chapter 303 inserted definition of advanced practice registered nurse; and made minor changes in style. Amendment effective April 20, 2001. 1999 Amendment: Chapter 395 in definition of conviction before “plea” inserted “or nolo contendere’; in definition of sentence after “plea” inserted “of guilty or nolo contendere”; and made minor changes in style. Amendment effective October 1, 1999. 1995 Amendment: Chapter 546 in definition of parole, in two places, substituted “board of pardons and parole” for “board of pardons’; and in definitions of parole and probation substituted “department of corrections” for “department of corrections and human services”. Amendment effective July 1, 1995. Saving Clause: Section 571, Ch. 546, L. 1995, was a saving clause. 19938 Amendment: Chapter 262 deleted definition of concealment that read: ““Concealment” means any act or deception done purposely or knowingly upon or outside the premises of a 2012 Annotations to the MCA