No. 14963 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

STATE OF MONTANA, 

Plaintiff and Appellant, 

RUDY WHITESHIELD and 

PAUL SCOTT SORENSEN, 

Defendants and Respondents. 

Appeal from: District Court of the Third Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ted Mizner, County Attorney, Deer Lodge, Montana 

For Respondents: 

Byron W. Boggs, Anaconda, Montana 

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Submitted on briefs: Dec. 28, 1979 

Decided : 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by the State of Montana from an order 

of the Powell County District Court, the Honorable John B. 

McClernan presiding, dismissing charges of a felony escape 

which had been filed against the defendants. 

Defendants were inmates in the Montana State Prison and 

both were participants in a prisoner furlough program. 

Defendant Whiteshield walked away from his furlough in 

Butte, Montana, was arrested in Lincoln, Nebraska and was 

returned to the State of Montana. The defendant Sorenson 

walked away from his furlough in Missoula, Montana, was 

arrested in San Diego, California and returned to the State 

of Montana. Both had their furloughs revoked and were 

charged with a felony escape under section 45-7-306, MCA. 

The District Court dismissed the charges on the basis that 

walking away from a furlough is not a felony escape under 

the statute. 

The sole issue is whether leaving a furlough is a 

felony escape. 

Section 45-7-306, MCA reads in whole as follows: 

"ESCAPE. (1) "Official detention" means 

imprisonment which resulted from a conviction for an offense, confinement for an 

offense, confinement of a person charged 

with an offense, detention by a peace officer pursuant to arrest, detention for 

extradition or deportation, or any lawful 

detention for the purpose of the protection 

of the welfare of the person detained or 

for the protection of society. 'Official 

detention' does not include supervision 

of probation or parole, constraint incidental to release on bail, or an unlawful 

arrest unless the person arrested employed 

physical force, ,a threat of physical force, 

or a weapon to escape. 
"(2) A person subject to official detention 

commits the offense of escape if he knowingly 

or purposely removes himself from official 

detention or fails to return to official detention following temporary leave granted for 

a specific purpose of limited time. 

" (3) A person convicted of the offese of 

escape shall be: 

" (a) imprisoned iii the state prison for a 

term not to exceed twenty (20) years if he 

escapes from a state prison, county jail, 

or city jail by the use or threat of force, 

physical violence, weapon, or simulated weapon; 

" (b) imprisoned in the state prison for 

a term not to exceed ten (10) years if he: 

"(i) escapes from a state prison, county 

jail, or city jail; or 

"(ii) escapes from another official detention by the use or threat of force, physical 

violence, weapon, or simulated weapon; or 

"(c) fined not to exceed five hundred dollars ($500) or imprisoned in the county 

jail for a term not to exceed 6 months, 

or both, if he commits escape under circumstances other than (a) and (b) of 

this subsection." 

The first two paragraphs of this statute define the 

crime of escape. The third paragraph, which is controlling, 

defines the punishment for the crime of escape and delineates felony escape from misdemeanor escape. 

The respondents herein do not argue that section 45-7- 

306, MCA does not apply to them. Both of them admit walking 

away from a furlough situation, however they argue that the 

statute can only be applied to them on the basis of a misdemeanor charge. The respondents do not contest the State's 

argument that they were subject to the official detention 

under paragraph 1 or that they committed the offense of 

escape under paragraph 2 of the statute. 

Respondents' argument is that they did not commit an 

offense by the use of force and therefore they are not 
punishable under paragraph 3(a) or 3(b)(ii) of the statute 

and they did not escape from the state prison, a county 

jail, a city jail, and are therefore not punishable under 

3 (b) (i) of the statute. 

The State does not contest respondents' argument that 

the escape was not by means of force. The appellant State 

does contest that the escape was not from the state prison. 

The State argues respondents actually escaped from the state 

prison, relying on section 46-23-402, MCA. In analyzing 

this argument, we first find that it flies in the face of 

common sense. The fact is, Sorenson escaped while he was on 

furlough in the City of Missoula with freedom to walk the 

streets of that city. Likewise, Whiteshield escaped while 

on furlough in the City of Butte with freedom to move about 

that city. To say that they were in a state prison just is 

not true, and in our opinion it would amount to fiction 

inadequate to form the basis for a felony conviction. 

Second, section 46-23-402, MCA relied on by the appellant State does nothing to answer the question of this case. 

That section does say that a furlough "shall serve to extend 

the limits of confinement for treatment as well as for 

jurisdictional purposes." But, that language does not 

answer whether leaving furlough is a felony or a misdemeanor 

escape. Only the language of the escape statute itself can 

answer this question. Section 46-23-402, MCA only provides 

the basis for making leaving furlough a crime. If a furloughee was not under the jurisdiction of a prison, leaving 

furlough would not be an escape at all. 

Third, we agree with respondents' contention that the 

State's argument ignores the purposes expressed in paragraph 
3 of the escape statute. That paragraph classifies the 

escape according to the risk that is created. Escaping from 

the state prison creates a serious risk deserving of a 

felony punishment because the prison is maintained by guards 

who have a duty to prevent escapes and the circumstances are 

such that attempts to escape create the risk of violence. 

The risk of violence is increased where the escapee uses 

force. Thus under paragraph 3(a), a forceful escape from 

the prison may be punished by up to twenty (20) years in 

prison; and under 3(b) an escape from a prison is punishable 

with up to ten (10) years. Leaving the location of one's 

furlough does not create a risk. And the fact that their 

escape does not create a risk is the basis for treating 

these circumstances as a misdemeanor under paragraph 2. 

We note that the official commission comment on section 

45-7-306, MCA in the first paragraph reads as follows: 

"The section classifies escapes according to 

the risk they create. Punishment is more severe for the offense when committed by 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 distinquished between escapes 

with and without the 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 S 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, county or city jail. 

Further, an escape without use of force from a 

noncustodial detention as provided in subsection 

3(c) removes the offense from the felony category altogether." 

This commission comment makes clear that under the circumstances 

in this case the respondents were punishable only under the 

misdemeanor section of the escape statute. Therefore, we 

affirm the District Court's dismissal of the felony charge. 
We concur: 

Chief Justice