No. 80-104 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

MIKE K. KYLE, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Powell, 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Byron W. Boggs, Anaconda, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ted L. Mizner, County Attorney, Deer Lodge, Montana 

Submitted on briefs: May 27, 1980 

Decided: JUL 2 8 7980 
Mr. Justice John Conway Harrison 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. 

The case was submitted to the District Court on an 

agreed statement of facts. On October 18, 1978, the District Court, Cascade County, sentenced appellant Kyle to 

seven years in the Montana State Prison for criminal mischief and eight years for burglary. The sentences were to 

be served concurrently. On February 27, 1979, Kyle was 

transferred from the State Prison to the Swan River Youth 

Forest Camp. Kyle left the Youth Camp without authorization 

on August 23, 1979. On November 2, 1979, Kyle turned himself over to Florida authorities for return to Montana. 

Based on these facts, Kyle was found guilty of felony 

escape under section 45-7-306(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), - Mont. , 605 

P.2d 189, 37 St.Rep. 89, 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 Swan River 

facility have come there from the prison through a classification process. A stricter criteria for furlough eligibility along with the necessity of approval from the Board 

of Pardons demonstrates a lesser risk factor with respect to 

the inmates on furlough. Persons assigned to Swan River 

Youth Forest Camp are still very much in prison and subject 

to its authority. 

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 

committed 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 noninstitutional 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) 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. 

We concur: 

Chief Justlce 
Mr. Justice John C. Sheehy dissenting: 

This case is controlled by State v. Whiteshield (1980), 

- Mont . - , 605 P.2d 189, 37 St.Rep. 89. 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 not 

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, a 

delinquent youth between sixteen and twenty-one years of age 

may not be committed or transferred to a penal institution or 

other facility used for the execution of sentence of able 

persons convicted of crimes unless there is first a determination made as to whether the youth should be assigned to the 

Youth Forest Camp. Contrary to what is said in the majority 

opinion, the Youth Forest Camp is not a prison, but is rather 

a place where a work program is established by the camp superintendent and the Department of Natural Resources and Conservation (section 53-30-205, MCA) to rehabilitate the youthful 

offender. The very purpose of the legislature in establishing 

a Youth Forest Camp was to avoid imprisonment of youthful 

offenders in the state prison. 

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.