### 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 Stateof Montana from an order of the Powell County DistrictCourt, the Honorable John B. McClernan presiding, dismissing charges of a felony escape which had been filedagainst the defendants. Defendants were inmates inthe Montana StatePrison and both 

### wereparticipants ina prisoner furlough program. Defendant Whiteshield walked away from his furlough in Butte, Montana, was arrested inLincoln, Nebraska and was returned to the Stateof Montana. The defendant Sorenson walked away from his furlough inMissoula, Montana, was arrested inSan 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 DistrictCourt dismissed the charges on the basis that walking away from a furlough isnot a felony escape under the statute. The sole issue 

### iswhether leaving a furlough 

### is 

### a felony escape. Section 45-7-306, MCA reads inwhole 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 toarrest, 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 orparole, constraint incidental torelease on bail, oran unlawful arrestunless the person arrested employed physical force, ,a threat of physical force, or a weapon toescape."(2)

### A person subject to official detention commits the offense of escape if he knowingly or purposely removes himself from official detention or failstoreturn toofficial detention following temporary leave granted for a specificpurpose of limited 

### time. 

### "(3) 

### A person convicted of the offese of escape shallbe: 

### "(a) imprisoned iii the stateprison for a term not toexceed twenty (20) years if he escapes from a stateprison, county jail, or cityjail by the use or threatof force, physical violence, weapon, or simulated weapon; 

### "(b) imprisoned inthe stateprison for a term not to exceed ten (10) years if he: "(i) escapes from a stateprison, county jail, or city jail; or "(ii)escapes from another official detention by the use or threatof force, physical violence, weapon, or simulated weapon; or "(c) fined not toexceed five hundred dollars ($500) or imprisoned inthe county jail for a term not to exceed 6months, or both, if he commits escape under 

### circumstances other than (a) and (b) of this subsection." The firsttwo paragraphs of this statutedefine 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 statutecan 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 1or that they committed the offense of escape under paragraph 2 of the statute. Respondents' argument 

### is that they did not commit an offenseby the use of force and therefore they arenotpunishable under paragraph 3(a)or 3(b)(ii)of the statute and they did not escape from the stateprison, a county jail, 

### a city jail, and are therefore not punishable under 3(b)

### (i) of the statute. The Statedoes 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 stateprison. The State argues respondents actually escaped from the state prison, relying on section 46-23-402, MCA. In analyzing this argument, 

### we firstfind that 

### it fliesinthe face of

common sense. The fact

### is, Sorenson escaped while he 

### was on furlough inthe City of Missoula with freedom towalk the 

### streets of thatcity. Likewise, Whiteshield escaped while

on furlough inthe City of Butte with freedom tomove about that city. To say that they 

### were in a 

### state prison just 

### is not true, and inour 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 toanswer the question of this case. That section does say that a furlough "shall serve toextend the 

### limitsof confinement for treatment aswell asfor 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 thisquestion. Section 46-23-402, MCA only provides the basis formaking leaving furlough a crime. If a furloughee was not under the jurisdiction of a prison, leaving furloughwould not be an escape atall. Third, 

### we agree with respondents' contention that the State's argument ignores the purposes expressed inparagraph3 of the escape statute. That paragraph classifies the escape according to the risk that is created. Escaping from the stateprison creates a seriousrisk deserving of a felony punishment because the prison 

### ismaintained by guards who have a duty toprevent escapes and the circumstances are such that attempts toescape 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 

### ispunishable 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 asa misdemeanor under paragraph 2. We note that the official commission comment on section 45-7-306, MCA inthe firstparagraph reads 

### as follows: "The section classifies escapes according to the risk they create. Punishment 

### ismore 

### severe for the offensewhen committed by use of or threat of force, physical violence, weapon or simulatedweapon. The grading of the offense by relying on the prisoner's use of force is actually a return tothe common law, since early common law clearly distinquished between escapes with and without the use of force. The grading scheme implicit inthe old code by which punishment 

### isprovided inreference to the type of confinement, isnot entirely abandoned in section 94-7-306. (Now 

### S 45-7-306, MCA.) For example, use of force inescaping from a noninstitutional detention calls for a 

### lesser punishment than escape from the prison, county or cityjail. Further, an escape without use of force from a noncustodial detention asprovided insubsection 3(c)removes the offense from the felony category altogether." This commission comment makes clear thatunder the circumstances in thiscase the respondents werepunishable only under the misdemeanor sectionof the escape statute. Therefore, 

### we affirm the DistrictCourt's dismissal of the felony charge.We 

### concur:

Chief Justice