DA 06-0155

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 294

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

DAN EUGENE HASTINGS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 05-0524

Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nancy G. Schwartz, Attorney at Law, Billings, Montana

For Appellee:

The Honorable Mike McGrath, Attorney General; Ali N. Bovingdon,

Assistant Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: February 7, 2007

 Decided: November 8, 2007

Filed:

__________________________________________

Clerk

November 8 2007
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Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Dan Eugene Hastings appeals from the judgment and sentence entered by the 

Thirteenth Judicial District Court, Yellowstone County, upon his guilty plea to the felony 

offense of failure to register as a sexual offender. We reverse and remand. 

¶2 The restated issue on appeal is whether the District Court erred by denying 

Hastings’ motion to dismiss.

BACKGROUND

¶3 In 1998, the youth court of the Seventh Judicial District Court, Dawson County,

adjudicated then-16-year-old Hastings as a delinquent youth upon Hastings’ admissions

that he had committed acts which, if committed by an adult, would have constituted five 

felony offenses, including one offense of sexual intercourse without consent. The court 

committed Hastings to the Department of Corrections (DOC) for placement at the 

Threshold Program in Deer Lodge. 

¶4 On February 24, 2000, shortly after Hastings turned 18, the youth court transferred 

jurisdiction of Hastings to the district court and placed him under adult supervision until 

age 25, based on the parties’ stipulation that Hastings had not successfully completed sex 

offender treatment at Threshold, had not paid $3,625.52 in restitution and was at high risk 

to re-offend. In June of 2000, the district court entered an order revoking Hastings’ 

“suspended sentence”—apparently referring to the transfer order—upon determining 

Hastings had violated conditions set forth in that order by the youth court. Among other 

things, the revocation order stated that “for each of the five (5) offenses, DAN 
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HASTINGS shall be committed to the [DOC] for a period of five (5) years with 

recommendation . . . for commitment to Pre-release if appropriate, upon the Defendant’s 

compliance with the following conditions: 1. The Defendant shall be required to register 

as a Level II Sex Offender.” The five-year commitments were to run concurrently. 

Hastings spent approximately four years in Montana State Prison, and was transferred in 

November of 2004 to Alternatives, Inc., a pre-release center in Billings. His commitment 

pursuant to the revocation order was entirely discharged on May 8, 2005.

¶5 In June of 2005, the State of Montana charged Hastings by Information in the 

Thirteenth Judicial District Court, Yellowstone County, with the felony offense of failure 

to register as a sexual offender “on or about May 9, 2005 to May 27, 2005.” According 

to the supporting affidavit, Hastings had registered as a sex offender with the 

Yellowstone County Sheriff’s Office on or about December 4, 2004, giving his address 

as Alternatives, Inc. in Billings. The affidavit further states a detective determined that 

after being “completely discharged from the sentence on May 8, 2005,” Hastings had not 

returned to live at Alternatives, Inc., and had not changed his address with the 

Yellowstone County Sheriff’s Office. In addition, the affidavit states the Billings Police 

Department arrested Hastings on May 22, 2005, on a charge of misdemeanor theft, and 

he gave the arresting officers an address subsequently learned to have been false. The

detective discovered Hastings’ true address on or about May 27, 2005 and arrested him

there for failure to maintain registration as a sex offender. The supporting affidavit states 

that Hastings had been “convicted of sexual intercourse without consent” and “[a]s a 

result, the Defendant is required to register as a sexual offender.” 
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¶6 Hastings moved to dismiss the charge. He asserted that, because he had not been

convicted of a sexual offense, neither Montana statutes nor the revocation order required 

him to register as a sex offender after the discharge of his sentence on May 8, 2005. 

After the State responded, the District Court denied Hastings’ motion.

¶7 Hastings then pled guilty to the offense of failure to register as a sex offender, 

reserving the right to appeal from the District Court’s denial of his motion to dismiss. 

The court entered judgment and sentence, and Hastings appeals.

STANDARD OF REVIEW

¶8 The grant or denial of a motion to dismiss in a criminal case is a question of law. 

We review conclusions of law to determine if they are correct. State v. Villanueva, 2005 

MT 192, ¶ 9, 328 Mont. 135, ¶ 9, 118 P.3d 179, ¶ 9 (citation omitted).

DISCUSSION

¶9 Did the District Court err in denying Hastings’ motion to dismiss?

¶10 Title 46, chapter 23, part 5, and § 46-18-255, MCA, make up the Sexual or Violent 

Offender Registration Act (SVORA). Section 46-23-501, MCA. A “sexual or violent 

offender,” defined as “a person who has been convicted of a sexual or violent offense,”

must register with law enforcement—by providing an address and, on some occasions, 

other information—at certain times. Sections 46-23-502(7), -504, and -505, MCA. In 

imposing a sentence on an offender convicted of a sexual or violent offense, the 

sentencing judge may not waive the registration requirements of SVORA. Section 46-

18-201(7), MCA. With exceptions not at issue here, a “sexual offender” must register for 

life. Section 46-23-506(1), MCA.
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¶11 Before addressing the District Court’s reasoning regarding the relevant statutes, 

we first note that Hastings is not challenging the Seventh Judicial District Court’s 

authority to impose the registration requirement in the first instance. Indeed, he could not 

do so, since his time to appeal from the order imposing that requirement has long passed. 

Hastings’ argument is that he was required to register only during his five-year 

commitment, which was discharged on May 8, 2005—before his alleged failure to

register on or about May 9 to May 27, 2005. 

¶12 In this respect, Hastings asserts that nothing in the revocation order authorizes a 

lifelong registration requirement under SVORA. The State responds that the revocation 

order reflects a “clear substantive intent” to impose the SVORA requirement. The 

language of the revocation order, as set forth above, reasonably could be interpreted in 

two ways: (1) setting forth the registration requirement as a condition for the District 

Court’s recommendation to the DOC for prerelease; or (2) recommending Hastings be 

released to a prerelease program at the DOC’s discretion, and requiring him to register 

during his participation in such a program. In either event, the absence of any mention of 

SVORA mandates a conclusion that nothing in the revocation order supports an intent by 

the Seventh Judicial District Court to trigger SVORA provisions.

¶13 In denying Hastings’ motion to dismiss, the District Court provided several 

statutory and jurisprudential analyses. On appeal, Hastings’ overarching argument is that 

the District Court erred in concluding he had been required to register pursuant to 

SVORA. We agree.

¶14 The District Court determined that, after Hastings’ transfer to district court in 
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2000, the Seventh Judicial District Court had imposed a registration requirement as an 

“adult” condition of a new sentence and, therefore, SVORA required him to register for 

life. In interpreting a statute to discern legislative intent, we first look to the statute’s 

plain language. If that language is clear and unambiguous, no further interpretation is 

required. State v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, ¶ 11, 152 P.3d 1288, ¶ 11 

(citations omitted).

¶15 Section 46-18-201(7), MCA, and the SVORA statutes require a “conviction” 

before SVORA registration requirements may be imposed. The statutes are unambiguous 

in that regard. Thus, because it is undisputed that Hastings’ youth court adjudication did 

not constitute a “conviction” as contemplated in § 46-23-502(7), MCA, the SVORA 

registration requirements could not be imposed by a district court under those statutes. 

See also § 41-5-106, MCA.

¶16 The District Court also reasoned, however, that § 41-5-1513(1)(c), MCA, provided 

a means to “bypass[]” the conviction requirement so that SVORA could apply to 

adjudicated youths. Section 41-5-1513(1)(c), MCA, provides, in part, that “the youth 

court may . . . require a youth found to be a delinquent youth, as the result of the 

commission of an offense that would be a sexual offense or violent offense, as defined in 

46-23-502, if committed by an adult, to register as a sexual or violent offender pursuant 

to Title 46, chapter 23, part 5.” This language is unambiguous in vesting a youth court 

with the discretion to impose a SVORA registration requirement in an appropriate case. 

Here, however, it is undisputed that the youth court did not impose a SVORA registration 

requirement. Thus, while the District Court did not err in concluding that § 41-5-
7

1513(1)(c), MCA, provides a means for a youth court to “bypass” the general 

requirement for a conviction in SVORA, no such “bypass” occurred in this case. 

¶17 Citing to statements regarding the purposes of SVORA set forth in State v. Mount, 

2003 MT 275, 317 Mont. 481, 78 P.3d 829, the District Court also determined the basic 

policy of SVORA, and its incorporation into the Montana Youth Court Act in § 41-5-

1513(1)(c), MCA, reflected the Montana Legislature’s intent to extend the scope of 

SVORA to adjudicated youths. With regard to Mount, we need only say that it did not 

involve either a juvenile or a youth court adjudication. Thus, it has no application to the 

present case. 

¶18 Moreover, in construing statutes, the function of the court is simply to ascertain 

and declare what is in terms or substance contained therein, not to insert what has been 

omitted or to omit what has been inserted. See State v. English, 2006 MT 177, ¶ 61, 333 

Mont. 23, ¶ 61, 140 P.3d 454, ¶ 61 (citation omitted); see also Letasky, ¶ 11. Nothing in 

§ 41-5-1513(1)(c), MCA, the pertinent language of which is set forth above, even 

suggests a wholesale incorporation of SVORA into the Youth Court Act. Consequently, 

we conclude the District Court erred in construing the statutes at issue here by looking 

beyond their plain, unambiguous language.

¶19 The District Court also reasoned that, because Hastings had not been convicted 

and was not ordered to register by a youth court under § 41-5-1513(1)(c), MCA, the 

registration requirement condition was the “only method” by which the Seventh Judicial 

District Court could have ensured SVORA applied to Hastings. The problem, of course, 

is that unless Montana statutes permit the imposition of a SVORA registration 
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requirement, a court may not impose one. The District Court’s apparent belief that 

SVORA registration was appropriate for Hastings does not translate into statutory 

authority for the Seventh Judicial District Court to impose it. 

¶20 Finally, we address Villanueva, decided after the District Court denied Hastings’ 

motion and advanced by both parties as authority for their respective positions. There, 

the defendant was adjudicated guilty of first degree rape in a Washington juvenile court 

in 1993 and several years later, after moving to Montana, was charged here with—among 

other things—failing to register as a sex offender. Villanueva, ¶¶ 3-6. The district court 

denied his motion to dismiss the failure to register charge. Villanueva, ¶ 7. 

¶21 On appeal, we addressed a legislative amendment to the registration statute, 

making it applicable to “sexual offenders” sentenced or, as a result of such a sentence,

under agency supervision in any state on or after July 1, 1989. Villanueva, ¶ 13. We 

concluded the defendant could not rely on the Montana Youth Court Act in relation to the

definition of “sexual offenders”—which, as discussed above, does not encompass a youth 

adjudicated in a Montana youth court unless the youth court discretionarily imposes a 

registration requirement—to avoid registration here. We reasoned that, in the context of 

the amendment, a “sexual offender” was defined by Washington law, where his 

adjudication had occurred, not by Montana law. See Villanueva, ¶¶ 15-16.

¶22 Hastings asserts that, unlike the defendant in Villanueva, he was adjudicated under 

the Montana Youth Court Act and, therefore, may rely on its provisions distinguishing an 

adjudication from a conviction and leaving it to the discretion of youth courts to impose 

SVORA registration requirements in appropriate cases. See §§ 41-5-106 and -1513(1)(c), 
9

MCA. In this regard, Hastings observes that Washington law, applicable to the defendant 

in Villanueva, mandates registration for all adults or juveniles “found to have committed” 

or “convicted of” a sex offense. See Wash. Rev. Code § 9A.44.130(1). The State 

responds that Villanueva stands for the proposition that a person’s adjudication—as 

opposed to conviction—has no bearing on whether the person has a duty to register under 

SVORA, so Hasting’s lack of a conviction is not a controlling factor. The State is wrong.

¶23 The 2001 legislative amendment to the SVORA registration statute discussed in 

Villanueva applies SVORA retroactively—to July 1, 1989—to “sexual offenders” as 

defined by the law of the state where the proceeding occurred. Only Montana law is at 

issue here. As discussed above, Hastings is not a “sexual offender” under Montana law 

because he was not “convicted,” and the youth court did not “bypass” the conviction 

requirement. Therefore, we conclude SVORA does not attach to the condition in the 

revocation order and Hastings was not required to register for life—or at any time after 

his commitment was discharged on May 8, 2005. 

¶24 We hold the District Court erred by denying Hastings’ motion to dismiss. We 

reverse and remand for further proceedings consistent with this Opinion. 

/S/ KARLA M. GRAY

We concur:

/S/ W. WILLIAM LEAPHART
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/S/ JAMES C. NELSON

/S/ BRIAN MORRIS

Justice Jim Rice dissenting. 

¶25 The Court has engaged in a hypertechnical reading of the Montana Youth Court 

Act and created a loophole between that Act and SVORA where none should exist. 

While any lack of clarity in the Act has since been resolved by the Legislature’s 

amendment of § 46-23-502(7), MCA,1 I do not believe those statutes ever allowed the 

result this Court reaches today. 

¶26 The Court observes that “Hastings is not challenging the [District Court’s] 

authority to impose the registration requirement in the first instance.” ¶ 11. Oddly, the 

Court then addresses that precise issue and holds that the District Court had no such 

authority. ¶ 19. The Court’s analysis of the issue, whether appropriate or not, is flawed.

¶27 The Court acknowledges that a youth court can “bypass” SVORA’s general 

requirement of a conviction by requiring a youth adjudicated of a sexual offense to 

register in accordance with SVORA. However, the Court then reads SVORA in a way 

that allows only the youth court to order an adjudicated youth to register. I believe the 

District Court stood in the shoes of the youth court when supervisory responsibility was 

transferred and could thereby require Hastings to register pursuant to the youth court 

 

1

Section 46-23-502(7), MCA, previously defined a “sexual or violent offender” as 

“a person who has been convicted of a sexual or violent offense.” That statute was 

amended by the 2007 Montana Legislature and now defines a “sexual or violent 

offender,” under § 46-23-502(10), MCA, as “a person who has been convicted of or, in 

youth court, found to have committed or been adjudicated for a sexual or violent 

offense.”
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statutes, and thus SVORA. I see no basis to prohibit the District Court from ordering the 

same disposition allowed in youth court, and thus would hold that the District Court had 

authority to order Hastings to register pursuant to SVORA.

¶28 Because I believe the District Court had the authority to require registration, I also 

interpret those statutes as necessarily incorporating SVORA, thus requiring anyone 

registering under SVORA to do so on a lifetime basis. The sentencing order cannot be 

read in a vacuum to require registration only for the period of Hastings’ confinement—by 

ordering Hastings to register, the SVORA statutes were incorporated into the sentencing 

order and required lifetime registration. Indeed, the registration requirement goes beyond 

the length of Hastings’ sentence because it is not a punishment, but rather a regulatory 

requirement that is allowed to continue. Mount, ¶ 56. When the District Court required 

registration, SVORA applied and lifetime registration was required.

¶29 Hastings is trying to find a loophole between the Montana Youth Court Act and 

SVORA where none exists but by the Court’s creation. Although the youth court chose 

not to order Hastings to register as a sex offender, when that option was exercised by the 

District Court it incorporated all of the SVORA requirements, including lifetime 

registration. Regardless of whether the District Court’s holding is considered to have 

occurred under the youth court act or under the adult sex offender statutes, SVORA 

applied, and the lifetime registration requirement applied with it.

¶30 I would affirm.

/S/ JIM RICE