IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 93-395 

LARRY T. MOORE, 

Petitioner, 

-vJACK MCCORMICK, Warden of the 

Montana State Prison, 

Respondent. 

Larry T. Moore, Petitioner herein, has filed his application 

requesting that this Court issue a writ of habeas corpus. 

Petitioner is presently incarcerated at the Montana State Prison as 

a result of his conviction of the offense of deliberate homicide, 

a felony, in violation of 5 45-5-102(1)(a), MCA, following a jury 

trial in Gallatin County on October 22, 1992 to November 23, 1992, 

and the subsequent revocation of his bond. Petitioner claims that 

he is unlawfully held because he has been denied bail pending 

appeal by the District Court and that such denial is erroneous as 

a matter of law. He asks this Court to review the question of bail 

independently, pursuant to § 46-22-103, MCA, which provides: 

Writ for purpose of bail. When a person is imprisoned or 

detained in custody on any criminal charge for want of 

bail, such person is entitled to a writ of habeas corpus 

for the purpose of giving bail upon averring that fact in 

his petition, 

confined. 

without alleging that he is illegally 

The appropriate standard of review when considering the denial 

of an application for bail pending appeal is whether the district 

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court abused its discretion in denying the application. Absent 

such abuse, this Court will not interfere. State ex rel. Bretz v. 

Sheriff of Lewis & Clark County (1975), 167 Mont. 363, 365, 539 

P.2d 1191, 1192. 

Petitioner argues that since he was released on bail prior to 

his conviction and since he was designated as a non-dangerous 

offender for purposes of eligibility for parole at sentencing, he 

is entitled to bail pending appeal by reason of 55 46-g-107 and 46- 

20-204, MCA. 

Section 46-g-107, MCA, provides: 

Release or detention pending appeal -- revocation -- 

sentencing hearing. A person intending to appeal from a 

judgment imposing a fine only or from any judgment 

rendered by a justice's court or city court must be 

admitted to bail. The court shall order the detention of 

a defendant found guilty of an offense who is awaiting 

imposition or execution of sentence or a revocation 

hearing or who has filed an appeal unless the court finds 

that, if released, the defendant is not likely to flee or 

pose a danger to the safety of any person or the 

community. (Emphasis added). 

Under this statute, since the Petitioner was found guilty of 

the felony offense of deliberate homicide in district court, and 

since he has filed an appeal, the court is required to order the 

detention of the Petitioner "...unless LitI finds that, if 

released, the defendant is not likely to flee...". 

Here, the District Court made precisely the opposite finding. 

The Court ruled that: 

[T]here is simply too much risk involved [in granting 

bail]. . ..I feel that under the evidence and testimony 

presented, [at the bail hearing] the Court simply cannot 

take the chance of flight that is always present when a 

capital crime has been committed and there has been a 

conviction. We cannot allow this Defendant out in the 

community regardless of what his friends and family say. 

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We find no abuse of discretion in the Court's ruling. Upon 

conviction, Petitioner was no longer cloaked with the presumption 

of innocence, having been found guilty beyond a reasonable doubt of 

a capital crime. There was evidence presented at the sentencing 

hearing to the effect that Petitioner had no ongoing business, that 

his financial assets were negligible and that he was divorced after 

he was originally admitted to bail. The District Court was 

entitled to weigh all of those factors is assessing Petitioner's 

propensity for flight. Accordingly, under the statute cited by the 

Petitioner, he is not entitled to bail pending appeal. 

The Petitioner goes on to argue, however, that Section 46-20- 

204(2), MCA, 11 . ..mandate[s] a stay of sentence pending appeal for 

a defendant who has been admitted to bail during the pendency of 

the case." We disagree. 

That section of the Montana Code of Criminal Procedure 

provides: 

stay of execution an6 relief pending appeal. . ..(2) If an 

appeal is taken and the defendant is admitted to bail, a 

sentence of imprisonment shall be stayed by the trial 

court. (Emphasis added). 

Petitioner argues that the statute is ambiguous and, under the 

rule of lenity, should be interpreted in his favor because it is 

not clear what the legislature intended by the words "defendant is 

admitted to bail." In other words, does that phrase refer to bail 

before or after sentencing? 

We conclude that the statute is not ambiguous. The plain 

intendment of the language used is that if, in its discretion under 

§ 46-g-107, MCA, and on making the required finding, the trial 

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I. 

court admits the defendant to bail pending appeal, then the court 

must stay his sentence of imprisonment. 

Since, as set forth above, the District Court did not admit 

Petitioner to bail pending appeal, there is, obviously, no 

V'mandateVV under f, 46-20-204(2), MCA, that it stay his sentence of 

imprisonment. Petitioner's argument fails. 

Finally, Petitioner argues that since the District Court, at 

sentencing, designated him a nondangerous offender for purposes of 

parole eligibility, he is entitled to bail pending appeal. Again, 

we are not persuaded by Petitioner's argument. 

Section 46-18-404, MCA provides in pertinent part: 

Designation as nondangerous offender for purposes of 

parole eligibility. (1) Except as provided in subsection 

(4), the sentencing court, shall designate an offender a 

nondangerous offender for purposes of eligibility for 

parole under part 2 of chapter 23 if: . . . (b) the court 

has determined, based on any presentence report and the 

evidence presented at trial and the sentencing hearing, 

that the offender does not rewresent a substantial danaer 

to other wersons or society. (Emphasis added). 

Implicit in the Petitioner's argument is the proposition that the 

criteria for admitting a defendant to bail pending appeal and for 

designating him a nondangerous offender are the same. That is not 

the case, however. 

In determining whether to admit a defendant to bail pending 

appeal, the trial court is required to find that "...the defendant 

is not likely to flee or pose a danger to the safety of any person 

or the community.1t As pointed out above, the District Court, here, 

declined to make such finding, ruling that there was a risk of 

flight. 

On the other hand, § 46-18-404(1)(b), MCA, requires the trial 

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court to determine that I'... the offender does not represent a 

substantial danuer to other persons or society" after considering 

the presentence report and the evidence at trial and the sentencing 

hearing. This statute does not carry a requirement that the risk 

of flight be considered, but it does impose a more onerous 

requirement that the court find that the offender not represent a 

"substantial danger" as opposed to a lldangerl* to society. 

Accordingly, while it may be appropriate for the trial court 

to designate a defendant nondangerous for parole eligibility 

purposes under the requirements of § 46-18-404(1)(b), MCA, it does 

not follow that, under the different criteria of 5 46-g-107, MCA, 

the court is also required to admit the defendant to bail pending 

appeal. 

For purposes of the instant Application for Writ of Habeas 

corpus, we hold that the District Court correctly interpreted and 

applied the appropriate statutes: that there was substantial 

evidence to support the Court's decision; that the Court did not 

abuse its discretion in denying the Petitioner's motion for bail 

pending appeal: and that the Petitioner is not illegally imprisoned 

or otherwise unlawfully restrained of his liberty. 

IT IS HEREBY ORDERED, that Petitioner's Application for Writ 

of Habeas Corpus 

Dated this 
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