2013 Montana Legislature
UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!
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A BILL FOR AN ACT ENTITLED: "AN ACT ALLOWING A DEFENDANT TO BARGAIN FOR THE IMPOSITION OF CORPORAL PUNISHMENT IN LIEU OF OR TO REDUCE THE TERM OF ANY SENTENCE OF INCARCERATION AVAILABLE TO THE COURT FOR IMPOSITION; AMENDING SECTION 46-18-115, MCA; AND PROVIDING AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Corporal punishment in lieu of incarceration. (1) Notwithstanding any other provision of law to the contrary, a person convicted of any offense by a court in this state, whether a misdemeanor or felony, may during a sentencing hearing as provided in 46-18-115 bargain with the court for the imposition of corporal punishment in lieu of or to reduce the term of any sentence of incarceration available to the court for imposition.
(2) The court and the person convicted of an offense shall negotiate the exact nature of the corporal punishment to be imposed, which must be commensurate with the severity, nature, and degree of the harm caused by the offender. If the court and the offender cannot agree on the exact nature of the corporal punishment to be imposed, the court shall impose a sentence as provided in 46-18-201.
(3) The imposition of a sentence under this section must be carried out by the sheriff of the county in which the crime occurred if the sentence for corporal punishment reduced or eliminated the term of incarceration in the county jail or by the department of corrections if the sentence reduced or eliminated the term of incarceration in the state prison. Any imposition of sentence pursuant to this section must be carried out within a reasonable time.
(4) For purposes of this section, "corporal punishment" means the infliction of physical pain on a defendant to carry out the sentence negotiated between the judge and the defendant.
Section 2. Section 46-18-115, MCA, is amended to read:
"46-18-115. Sentencing hearing -- use of two-way electronic audio-video communication. Before imposing sentence or making any other disposition upon acceptance of a plea or upon a verdict or finding of guilty, the court shall conduct a sentencing hearing, without unreasonable delay, as follows:
(1) The court shall afford the parties an opportunity to be heard on any matter relevant to the disposition, including:
(a) a request for the imposition of corporal punishment as provided in [section 1]; and
(b) the imposition of a sentence enhancement penalty and the applicability of mandatory minimum sentences, persistent felony offender status, or an exception to these matters.
(2) If there is a possibility of imposing the death penalty, the court shall hold a hearing as provided by 46-18-301.
(3) Except as provided in 46-11-701 and 46-16-120 through 46-16-123, the court shall address the defendant personally to ascertain whether the defendant wishes to make a statement and to present any information in mitigation of punishment or reason why the defendant should not be sentenced. If the defendant wishes to make a statement, the court shall afford the defendant a reasonable opportunity to do so. For purposes of this section, the requirement that the court address the defendant personally may be satisfied by the use of two-way electronic audio-video communication. Audio-video communication may be used if neither party objects and the court agrees to its use and has informed the defendant that the defendant has the right to object to its use. The audio-video communication must operate as provided in 46-12-201.
(4) (a) The court shall permit the victim to present a statement concerning the effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion regarding appropriate sentence. At the victim's option, the victim may present the statement in writing before the sentencing hearing or orally under oath at the sentencing hearing, or both.
(b) The court shall give copies of any written statements of the victim to the prosecutor and the defendant prior to imposing sentence.
(c) The court shall consider the victim's statement along with other factors. However, if the victim's statement includes new material facts upon which the court intends to rely, the court shall allow the defendant adequate opportunity to respond and may continue the sentencing hearing if necessary.
(5) The court shall impose sentence or make any other disposition authorized by law.
(6) In felony cases, the court shall specifically state all reasons for the sentence, including restrictions, conditions, or enhancements imposed, in open court on the record and in the written judgment."
NEW SECTION. Section 3. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 46, chapter 18, and the provisions of Title 46, chapter 18, apply to [section 1].
NEW SECTION. Section 4. Applicability. [This act] applies to offenses committed on or after [the effective date of this act].
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