614 P.2d 1059 | Mont. | 1980
Lead Opinion
delivered the opinion of the Court.
Appellant Kyle appeals from his conviction in the District Court, Third Judicial District, Powell County, of the charge of felony escape in violation of section 45-7-306(3)(b), MCA.
Based on these facts, Kyle was found guilty of felony escape under section 47-7-306(3)(b), MCA, and was sentenced to three years in the State Prison. The sentence was to run consecutively with any other unserved sentences.
The sole issue for review is whether Kyle’s departure from the Youth Camp is a felony escape under section 45-7-306(3)(b), MCA.
Appellant argues as his sole defense that the recent case of State v. Whiteshield (1980), 185 Mont. 208, 605 P.2d 189, controls here. In that case, we held that a departure from a work furlough is not an escape from the State Prison. We hold here that the Whiteshield rationale does not apply.
In Whiteshield this Court cited three reasons why an escape of a prisoner on furlough does not constitute a felony escape. First, we noted that the defendants in Whiteshield each escaped while they had freedom to move about the cities where they were on furlough. Second, we examined the furlough statute and found it inadequate when read with the escape statute to demonstrate a legislative intent that escape while on furlough justifies a felony punishment. And third, we emphasized the Commission Comment accompanying the escape statute.
Appellant’s case is distinguishable from Whiteshield within the context of each of the three reasons applied by this Court. First, persons incarcerated at the Swan River Youth Forest Camp are not free to move about in the same manner as a person on furlough. Detention at the Swan River facility is similar to a minimum security status at the main prison. In fact, all of the residents of the
Second, section 45-7-306(3)(b)(i), MCA, contemplates escape from the Swan River facility. That section provides:
“A person convicted of the offense of escape shall be:
“(b) imprisoned in the state prison for a term not to exceed 10 years if he:
“(i) escapes from a state prison, county jail, or city jail . . .”
The term “a state prison” is not defined in the Criminal Code. However, the legislature’s use of the modifier “a” rather than “the” indicates that it did not intend that the term be read exclusively. To paraphrase this Court’s language in Whiteshield, it flies in the face of common sense to say that Swan River is not a “prison.” Only felons are commited to Swan River and only through the Montana State Prison.
Finally, the purposes expressed in the Commission Comment accompanying the escape statute support the conclusion that escape from the Swan River Youth Forest Camp is a felony escape. The first paragraph of the Commission Comment reads:
“[This section] classifies escapes according to the risk they create. Punishment is more severe for the offense when committed by the use of or threat of force, physical violence, weapon or simulated weapon. The grading of the offense by relying on the prisoner’s use of force is actually a return to the common law, since early common law clearly distinguished between escapes with and without use of force. The grading scheme implicit in the old code by which punishment is provided in reference to the type of confinement, is not entirely abandoned in section 94-7-306. [Now section 45-7-306, MCA.] For example, use of force in escaping from a noninstitu*41 tional detention calls for a lesser punishment than escape from the prison or county or city jail. Further, an escape without use of force from a noninstitutional detention as provided in subsection 3(e) [3)(c] removes the offense from the felony category altogether.”
The above comment draws a clear distinction between institutional and noncustodial or noninstitutional detention by its use of the latter terms. There is no question that the Swan River Youth Forest Camp is a detention facility, staffed by persons charged at least in part with the task of preventing escape from the facility. Certainly the risk created by an escape from Swan River is much greater than the risk created by the escape of an individual who is on furlough. Consistent with the legislative purpose of classifying escapes in accordance with the risks they create, we find the District Court properly deemed appellant’s escape to be of felony proportions.
The judgment of the District Court is affirmed.
Dissenting Opinion
dissenting:
This case is controlled by State v. Whiteshield (1980), 185 Mont. 208, 605 P.2d 189. The majority in this case is backtracking from the position we took in Whiteshield to the effect that whether escape is a felony or a misdemeanor depends upon the degree of risk which the escape creates. This was obviously the intent of the commission that drew up the statute and it was also our intent in handing down the decision in Whiteshield.
To be clear about it, Swan River Youth Forest Camp is not a state prison. It is true that only felons are committed to the camp, but it is also true that only felons are placed on furlough, and in Whiteshield, that single factor was enough for us to decide that an escape from a furlough was a felony.
Under sections 41-5-523(2)(b) and 41-5-523(3), MCA, delinquent youth between sixteen and twenty-one years of age may not be committed or transferred to a penal institution or other facility
While Youth Forest Camp residents are not free to move about like persons on furlough, this should not be a point of emphasis in our decision. Our escape statute places less emphasis on the type of confinement than on the type of risk created by the escape.
I would reverse the District Court.
