Criminal Law

Court Procedures

You may have already appeared in Justice Court where the Judge would have read the charge(s) against you; informed you of the maximum sentence possible; told you of your right to legal counsel; and set bail in your case. You have the right to retain any attorney of your choice.
Bail is a sum of money that you, the defendant, must leave with the court as an assurance that if released you will appear at all future court proceedings. Under Montana Law, nearly all persons are entitled to bail except in capital cases, because all persons charged are innocent until proven guilty. One of the conditions of bail may be that you must avoid all contact with the alleged victim and limit contact with potential witnesses. Do not talk to the complaining parties or any witnesses without talking to your attorney first. Bail may be posted in one of three ways:

• Cash posted with the Clerk of Court;
• A property bond of twice the value of the bail; or
• A surety bond posted by a commercial surety or private party.

You may be released on your own recognizance or without bail
if the State and the Judge agree. See Criminal Law Forms for a sample form.

Preliminary Hearing
At the initial appearance in Justice Court, the Judge normally sets a time for a preliminary hearing. A preliminary hearing is usually set several weeks from the initial appearance, and is a hearing to determine whether or not there is sufficient reason to believe or probable cause that a crime was committed and that you may have committed same. If you waive the preliminary hearing, the case is immediately forwarded to District Court. If you do not waive the preliminary hearing, you will be required to attend, but you do not have to testify unless you and your attorney feel that it is necessary. You may also, with the help of your attorney, cross examine witnesses called by the State at the preliminary hearing, and may in fact, present evidence yourself or call other witnesses to testify. If you feel you have any pertinent witnesses or evidence, please let your attorney know immediately. Give your attorney the names, addresses, and telephone numbers of your witnesses and a short summary of what they will testify to.
A preliminary hearing is not a jury trial and strict rules of evidence are not enforced. Hearsay is admissible and often an investigating officer testifies and submits reports to the court as to what the complaining parties say about you. Most cases are generally bound over to District Court by the Justice of the Peace if he finds that a crime has been committed and that you are a likely suspect. Waiving a preliminary hearing is often a good idea if the hearing is set for over a month away and it appears that the court will bind the case over.

Arraignment
After a preliminary hearing is had and the case is bound over, or if you waive your preliminary hearing, you must then appear in District Court on the third floor of the Justice Center to answer charges against you and to enter a plea of guilty or not guilty. If you plead not guilty, a trial date is set. If you plead guilty then a sentence hearing is set after you plead. A sentence hearing normally is 30 to 60 days after the arraignment.
At the arraignment or later, the prosecutor may agree to a particular sentence or disposition of the case, which will be relayed to the judge in the form of a plea bargain. An arraignment only takes approximately twenty to thirty minutes, and, again, is not a trial, but merely telling the court how you are going to plead and setting the date for the next proceeding.
If you plead guilty at the arraignment, the judge will ask you to testify about the crime(s) and expect you to admit all pertinent aspects of the case. The judge will also ask you if you understand your rights and will go over your rights in detail with you along with the description of the maximum sentence allowed by law and the fact that the court is not bound by any plea bargains you may have with the State of Montana.
If you plead not guilty, you are entitled to a jury trial consisting of twelve persons (in felony cases). All twelve jurors must agree to convict you or acquit you. Again, at the trial you may testify, cross examine witnesses, present evidence and witnesses on your own behalf. As above, please keep your attorney advised of any particulars of your case.
Before the trial, there may be hearings, motions, and an omnibus hearing. Each side, both the State and the defendant, must disclose all evidence and witnesses they intend to present at the trial.

Sentencing
If you are found guilty or plead guilty, a sentence hearing will be held as directed by the court. Sentencing is completely up to the discretion of the judge who may place you on probation by giving either a deferred or suspended sentence. If the court feels that you should be incarcerated, the court could sentence you up to the maximum allowed by the legislature, restrict your parole, or label you a dangerous or persistent offender. Your case may require a minimum sentence if a minor, weapon, force, or a certain crime was involved. In your sentencing, the court will normally place certain conditions and restrictions on you, such as no drinking, alcohol counselling, mental health counselling, finishing high school, paying child support, making restitution, or other conditions the court feels appropriate.
Prior to the sentence hearing, you will have to go to the probation office which will prepare a presentence report after they investigate your case. When you talk to your probation officer, please be courteous, honest, direct and helpful. Remember that the probation officer will recommend to the court what sentence you should receive; therefore, you must be very careful in what you tell him and how you tell him.
At your sentence hearing, you will generally be required to testify, and you may present character witnesses or character statements from friends who cannot attend. Please let your attorney know well in advance of any witnesses you may have and give him all character statements so he may examine them, copy them, and show them to the State prior to the hearing.
It is important when you appear and attend the sentence hearing, that you show the court that you are concerned about what has happened, that it will not happen again, and that you have already taken steps to prevent your conduct from getting you into trouble in the future.
At the sentencing hearing the court may fine you, if appropriate, up to $50,000 for your offense and have you make restitution through the County Attorney's Office. You should prepare a budget to show the court what your income and expenses are and what ability you have to pay a fine, if any, and/or restitution.

Appeal and Post Conviction Relief
If you plead guilty, you have no right to appeal your case. If you have a trial and are found guilty, you then have the right to appeal to the Montana Supreme Court if you request your attorney to do so within sixty days of your sentence. Your attorney will generally prepare a brief and submit same to the Supreme Court concerning your case to assist in your appeal.

Sentence Review Board
If you have pled guilty or are found guilty and you feel that your sentence is excessive, you may petition the Sentence Review Board to amend your sentence. The Sentence Review Board is authorized to increase or lower your sentence as they deem appropriate. Please discuss this matter with your attorney and do not file a petition to the Sentence Review Board just because you are unhappy with the sentence. The Sentence Review Board has recently increased several sentences. To apply for sentence review, you need to sign a form supplied by the Court within sixty days after sentencing. If you have any questions, please contact your attorney immediately.

What is a Misdemeanor?
In the State of Montana, a misdemeanor is a crime that carries a jail term of up to 1 year and/or a $1000 fine. Misdemeanors have less stigma attached to them than felonies, but can interfere with your obtaining a job, being bonded, or obtaining security clearance. On both felony and misdemeanor charges a person may receive probation, which means that your sentence is suspended or deferred but you must pay the court costs, fine, restitution, and complete any terms of probation deemed appropriate by the Judge. Before you plead guilty to a felony or misdemeanor, you should first talk to an attorney who is licensed in the state to practice law and who has experience in criminal law.

What is a Felony?
In the State of Montana, a felony is a crime that carries a prison term of at least one year in the state prison, plus fines, court costs, and public defender fees. A felony conviction will result in the loss of your right to own or use a firearm to hunt game and carries many other public and social stigmas. In addition, certain felonies can result in automatic deportation or exclusion from the United States if you are not a U.S. citizen.