Montana HB 578: Generally revise laws related to restitution

Bill Text

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1 _____________ BILL NO. _____________
2 INTRODUCED BY _________________________________________________
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO RESTITUTION;
5 REMOVING FROM CONSIDERATION AN OFFENDER'S FINANCIAL RESOURCES WHEN SENTENCING
6 RESTITUTION; ALLOWING INFORMATION OF PECUNIARY LOSS OR LOSS OF PROPERTY TO BE
7 PROVIDED TO A PROBATION OFFICER OUTSIDE THE ORDER OF THE COURT; MODIFYING WHEN A
8 COURT MAY GRANT A PETITION TO REVISE RESTITUTION; AND AMENDING SECTIONS 45-5-206, 45-5-
9 503, 45-5-507, 45-5-627, 45-6-101, 46-18-101, 46-18-242, AND 46-18-246, MCA.”
10
11 WHEREAS, the majority opinion in State v. Lodahl, 2021 MT 156, deviated from the plain language of
12 House Bill 220, Chapter 272, from the 2003 legislative session. Section 4 of House Bill 220 amended section
13 46-18-242, MCA, by removing from consideration an offender's "financial resources and future ability to pay
14 restitution" from consideration in an investigation and proof of victim's loss; and
15 WHEREAS, if a victim loses property or incurs a pecuniary loss, Montana law requires courts to order
16 restitution in sections 46-18-101, 46-18-201, and 46-18-251, MCA; and
17 WHEREAS, the intent of the Legislature in the 2003 revisions to section 46-18-242, MCA, was to
18 ensure that the restitution amount be determined during the sentencing process without consideration of the
19 offender's ability to pay restitution; and
20 WHEREAS, in keeping with the 2003 revisions to section 46-18-242, MCA, the waiver and modification
21 of the restitution process found in section 46-18-246, MCA, was intended to be a postjudgment inquiry requiring
22 the offender to file a subsequent petition to the sentencing court; and
23 WHEREAS, the amendments to section 46-18-246, MCA, in this bill are intended to further provide
24 evidence of legislative intent.
25
26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
27
28 Section 1. Section 45-5-206, MCA, is amended to read:
(Primary Sponsor)

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1 "45-5-206. Partner or family member assault -- penalty. (1) A person commits the offense of
2 partner or family member assault if the person:
3 (a) purposely or knowingly causes bodily injury to a partner or family member;
4 (b) negligently causes bodily injury to a partner or family member with a weapon; or
5 (c) purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family
6 member.
7 (2) For the purposes of Title 40, chapter 15, 45-5-231 through 45-5-234, 46-6-311, and this
8 section, the following definitions apply:
9 (a) "Family member" means mothers, fathers, children, brothers, sisters, and other past or present
10 family members of a household. These relationships include relationships created by adoption and remarriage,
11 including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue
12 regardless of the ages of the parties and whether the parties reside in the same household.
13 (b) "Partners" means spouses, former spouses, persons who have a child in common, and
14 persons who have been or are currently in a dating or ongoing intimate relationship.
15 (3) (a) (i) An offender convicted of partner or family member assault shall be fined an amount not
16 less than $100 or more than $1,000 and be imprisoned in the county jail for a term not to exceed 1 year or not
17 less than 24 hours for a first offense.
18 (ii) An offender convicted of a second offense under this section shall be fined not less than $300
19 or more than $1,000 and be imprisoned in the county jail not less than 72 hours or more than 1 year.
20 (iii) Upon a first or second conviction, the offender may be ordered into misdemeanor probation as
21 provided in 46-23-1005.
22 (iv) On a third or subsequent conviction for partner or family member assault, the offender shall be
23 fined not less than $500 and not more than $50,000 and be imprisoned for a term not less than 30 days and not
24 more than 5 years. If the term of imprisonment does not exceed 1 year, the person shall be imprisoned in the
25 county jail. If the term of imprisonment exceeds 1 year, the person shall be imprisoned in the state prison.
26 (v) If the offense was committed within the vision or hearing of a minor, the judge shall consider
27 the minor's presence as a factor at the time of sentencing.
28 (b) For the purpose of determining the number of convictions under this section, a conviction

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1 means:
2 (i) a conviction, as defined in 45-2-101, under this section;
3 (ii) a conviction for domestic abuse under this section;
4 (iii) a conviction for a violation of a statute similar to this section in another state;
5 (iv) if the offender was a partner or family member of the victim, a conviction for aggravated assault
6 under 45-5-202 or assault with a weapon unde