MOORE v MCCORMICK
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IN THE SUPREMECOURT OF THE STATE OF MONTANA NO. 93-395 LARRY T. MOORE, Petitioner, -vJACK MCCORMICK, Warden of the Montana State Prison, Respondent. Larry T. Moore, requesting Petitioner a result this in violation revocation he is unlawfully held appeal by the District independently, writ a his habeas of Court He asks this pursuant Prison of deliberate as homicide, MCA, following bond. he has and that Court corpus. a jury 22, 1992 to November 23, 1992, of his because application at the Montana State of 5 45-5-102(1)(a), County on October of law. has filed of the offense and the subsequent a matter issue incarcerated conviction in Gallatin herein, Court is presently of his a felony, trial that Petitioner Petitioner been denied such denial to review to § 46-22-103, claims bail that pending is erroneous the question MCA, which as of bail provides: Writ for purpose of bail. When a person is imprisoned or detained in custody on any criminal charge for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail upon averring that fact in his petition, without alleging that he is illegally confined. The appropriate of an application standard for bail of review pending 1 when considering appeal is whether the denial the district court such abused abuse, Sheriff P.2d its discretion this of Court Lewis 1191, is conviction and for that Absent application. State (1975), to bail since since he of ex rel. Bretz v. 363, 365, 539 on bail prior to 167 Mont. he was released eligibility purposes entitled 20-204, interfere. County the 1192. argues offender denying not will & Clark Petitioner his in pending was designated for appeal as parole by reason a non-dangerous at of sentencing, 55 46-g-107 he and 46- MCA. Section 46-g-107, MCA, provides: Release or detention pending appeal -- revocation -sentencing hearing. A person intending to appeal from a judgment imposing a fine only or from any judgment rendered by a justice's court or city court must be admitted to bail. The court shall order the detention of a defendant found guilty of an offense who is awaiting imposition or execution of sentence or a revocation hearing or who has filed an appeal unless the court finds that, if released, the defendant is not likely to flee or pose a danger to the safety of any person or the community. (Emphasis added). Under the since felony this statute, offense he has detention of released, filed the Here, The Court of since deliberate an appeal, the Petitioner defendant the District ruled the is Petitioner homicide the court not district required LitI to made precisely guilty court, to finds is ..I opposite that, if finding. simply too much risk involved [in granting feel that under the evidence and testimony [at the bail hearing] the Court simply cannot chance of flight that is always present when a crime has been committed and there has been a We cannot allow this Defendant out in the regardless of what his friends and family say. 2 and the flee...". the of order that: [T]here . bail]. presented, take the capital conviction. community Court likely in is "...unless was found We find no abuse conviction, of of discretion Petitioner innocence, a capital to the his been found There he was effect that were originally entitled to propensity weigh for Petitioner, all The Petitioner 204(2), entitled goes a defendant who has the bail argue, a stay at the the District that however, of was Petitioner's cited by the appeal. that sentence bail after Court statute pending of sentencing business, assessing to That section of admitted doubt Section pending the Montana Code during of the 46-20- appeal for We disagree. case." been is under presumption he was divorced The factors to on to . 11 ..mandate[s] MCA, and that bail. Upon a reasonable presented Accordingly, not the had no ongoing to those ruling. with beyond negligible of flight. he is guilty Petitioner admitted Court's cloaked was evidence assets financial the was no longer having crime. hearing in pendency Criminal of Procedure provides: stay of execution an6 relief pending appeal. . ..(2) If an appeal is taken and the defendant is admitted to bail, a sentence of imprisonment shall be stayed by the trial court. (Emphasis added). Petitioner argues rule of should not clear lenity, admitted before what the to bail." or after We conclude intendment § 46-g-107, of the MCA, that the statute is legislature In other intended words, and, in be interpreted ambiguous his favor because words "defendant by the does that phrase under refer the it is is to bail sentencing? that the language and statute used on making is is that the 3 not ambiguous. if, in required its The discretion finding, plain under the trial I. court admits must stay the his Since, defendant sentence as set Petitioner to of forth bail V'mandateVV under to above, eligibility, we are not him he is persuaded Section appeal, the court did not admit that it since obviously, stay no his sentence of District the a nondangerous entitled is, Court, at for purposes of fails. to by Petitioner's 46-18-404, then Court there MCA, that argues designated appeal, District argument Petitioner parole the pending Petitioner's sentencing, pending imprisonment. f, 46-20-204(2), imprisonment. Finally, bail offender bail pending appeal. Again, argument. MCA provides in pertinent part: Designation as nondangerous offender for purposes of parole eligibility. (1) Except as provided in subsection (4), the sentencing court, shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if: . . . (b) the court has determined, based on any presentence report and the evidence presented at trial and the sentencing hearing, that the offender does not rewresent a substantial danaer to other wersons or society. (Emphasis added). Implicit in criteria for designating the appeal, is or the a defendant a nondangerous determining likely trial to community.1t declined argument is to the bail offender proposition pending are the that appeal same. the and for That is not however. the not Petitioner's admitting him case, In the to make whether court flee is to admit required or pose As pointed a defendant to a danger out above, such finding, ruling hand, § 46-18-404(1)(b), find to that the to "...the safety the there pending defendant of District that bail any person Court, was here, a risk of flight. On the other 4 MCA, requires the trial court to determine substantial danuer the presentence hearing. of considered, not it find that it defendant follow the court that, is at trial a requirement does impose under also required For purposes of the that onerous a to society. for for the trial parole criteria to admit the risk not represent court eligibility of § 46-18-404(1)(b), the different a considering a more the offender nondangerous represent and the sentencing may be appropriate under the requirements not after as opposed to a lldangerl* while a does or society" but the court danger" designate purposes persons does not carry Accordingly, to offender and the evidence that "substantial to other the statute be requirement I'... report This flight that MCA, it of 5 46-g-107, the defendant to bail does MCA, pending appeal. we hold corpus, that applied the evidence to support abuse its appropriate appeal: or otherwise the Court's restrained for Writ correctly that decision; there that the Petitioner's the Petitioner IT IS HEREBY ORDERED, that Dated this Court statutes: in denying and that unlawfully of Habeas Corpus Application the District discretion pending instant Petitioner's Habeas interpreted was the and substantial Court motion is not illegally of his of did for not bail imprisoned liberty. Application for Writ 6
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