                              No.    89-594

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990



STATE OF MONTANA,
          Plaintiff and Appellant,
     v.

RICHARD SAVARIA,
          Defendant and Respondent.


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APPEAL FROM:   District Court of the Thirteenth ~ u d i c i a l : ~ i s t ~ c t ,
               In and for the County of Yellowstone,         -4
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               The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Hon. Marc Racicot, Attorney General; Jennifer M.
               Anders, Assistant Attorney General; Helena, Montana
               Harold Hanser, County Attorney; Curtis L. Bevolden,
               Deputy County Attorney; Billings, Montana
          For Respondent:
               John L. Adams, Billings, Montana


                           Submitted on Briefs:       September 27, 1990
                                           Decided:    October 30, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     The State of Montana appeals the judgment of the Thirteenth
Judicial District, Yellowstone County, which sentenced Richard
Savaria to six months of imprisonment for misdemeanor escape under
5 45-7-306(3) (c), MCA, following a jury trial that found Savaria
guilty of a general violation of escape.       The State argues that
Savaria should have been sentenced for felony escape under 5 45-
7-306 (3)(b)(i), MCA.   We affirm.
     The State raises the following issue:
     Did the District Court properly sentence Savaria for mis-
demeanor escape under   s   45-7-306(3)(c), MCA?
     On April 12, 1990, Richard Savaria was among eight prisoners
transported from the Yellowstone County Detention Facility to the
Yellowstone County Courthouse for law and motion proceedings.     On
that day, Savaria was to be sentenced for a felony theft charge to
which he had pled guilty.       The court, however, did not sentence
Savaria on that day due to his attorney's absence; the court

continued his sentencing to the following week.

     Following the close of law and motion, the eight prisoners
were ushered, single-file, out of the courtroom and down a winding
hall to the security elevator.        One transport officer led the
procession and another took up the rear. All of the prisoners were

handcuffed and bellychained, and at no time during their court
appearance or transport were the shackles removed.         Savaria 's
shackles, however, were hidden from view by the suit coat he was
wearing.
       While the procession was walking through the winding hallway,
Savaria slipped unnoticed into a public elevator and exited the
building through the front door.       Shortly thereafter, the trans-
porting    officers   noticed   Savaria's absence   and   radioed   the
sheriff's office for assistance in apprehending him.       Savaria was
apprehended approximately three hours later in the nearby Grand
Building, where he had first gotten a shave and a haircut at a
barber shop prior to his eventual arrest in a basement restroom.
       On April 17, 1989, Savaria was charged by information with
felony escape in violation of 5        45-7-306 (3)(b) (i), MCA.    The
information was later amended to charge a general violation of
escape under 5 45-7-306, MCA.     Savaria entered a plea of guilty to
the original charge, but changed his plea to not guilty after the
State filed a notice of intent to have Savaria adjudged a persis-
tent felony offender.      On September 26, 1989, following a jury
trial, Savaria was found guilty of a general violation of escape.
       At the sentencing hearing, the State argued that Savaria
should be sentenced for felony escape under 5 45-7-306 (3)(b)(i),
MCA.    The District Court, however, found that Savaria had not
escaped from I1county jailg1as required for felony escape under
5 45-7-306 (3)(b)(i), MCA, and accordingly, sentenced Savaria to six
months imprisonment under misdemeanor escape, 5 45-7-306 (3)(c),
MCA, this sentence to run consecutively with an eight-year term he
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was serving at the Montana State Prison.    From this sentence, the
State appeals.


     Did the District Court properly sentence Savaria for mis-
demeanor escape under 5 45-7-306(3)(c), MCA?
     Section 45-7-306(3), MCA, provides:
             (3)   A person convicted of the offense of
             escape shall be:
          (a) imprisoned in the state prison for a term
          not to exceed 20 years if he escapes from a
          state prison, county jail, city jail, or
          supervised release program 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 10 years if he:
          (i) escapes from a state prison, county jail,
          city jail, halfway house, life skills center,
          or supervised release program; or
         (ii) escapes from another official detention
         by the use or threat of force, physical vio-
         lence, weapon, or simulated weapon; or

         (c) fined not to exceed $500 or imprisoned in
         the county jail for a term not to exceed 6
         months, or both, if he commits escape under
         the circumstances other than (a) and (b) of
         this subsection.
This Court has held that criminal statutes are to be strictly
construed.     Shipman v. Todd (1957), 131 Mont. 365, 368, 310 P.2d


    The District Court held that because Savaria was not physical-
ly within the confines of the county jail when he escaped from
custody, he could not be sentenced for felony escape under 5 45-
7-306 (3)(b)(i), MCA.       Accordingly, the District Court sentenced

Savaria to six months imprisonment for misdemeanor escape under
5 45-7-306 (3)(c), MCA.      The State argues that the District Court
interpreted I1county jailv1too literally. Rather, the State argues
that the court should have considered the degree of risk and the
nature of the confinement to determine whether Savarials offense

was a felony or misdemeanor citing State v. Whiteshield (1980), 185
Mont. 208, 605 P.2d 189, and State v. Kyle (1980), 189 Mont. 38,
614 P.2d 1059.    We disagree.
     In 1980, this Court held in Whiteshield that a departure from
a prison furlough program was not a felony escape because a prison
furlough    program   was    not   a   "state   prison"    under   5   45-7-

306(3) (b)(i), MCA, and this escape did not create a risk of
violence.    Whiteshield, 185 Mont. at 211, 605 P.2d at 190-91.
Later in 1980, in Kyle, this Court held that a departure from a
youth camp was a felony escape because a youth camp is a "state
prisonl1 under 5 45-7-306(3) (b)(i), MCA, and this escape created a
greater risk of violence than found in Whiteshield because of the

stronger degree of confinement in a youth camp than a furlough
program. Kyle, 189 Mont. at 39-41, 614 P.2d at 1060-61.
     In 1981, the Montana Legislature reversed Whiteshield by
amending 5 45-7-306 (3)(b)(i), MCA, to further include escapes from
halfway houses, life skills centers, and furlough placements as

felony escapes.   1981 Mont. Laws, Ch. 72,       §   1.   Additionally, the

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1981 Montana Legislature codified Kyle by including escapes from

supervised release programs as felony escapes.       1981 Mont. Laws,
Ch. 583, 5 8.
          Clearly, the Montana Legislature intended to close loopholes
in    §    45-7-306(3) (b)(i), MCA, by   specifically listing further
possible places of escape.       The Montana Legislature, however, did
not specifically address an escape by a prisoner during a transport
from a court appearance.         Because the statute fails to address
this situation, Savaria's escape cannot be deemed a felony escape.
Furthermore, to hold that Savariafs escape was an escape from a
I1countyjailvv
             would expand the meaning of a criminal statute which
is forbidden by Shipman.       Therefore, the District Court properly
held that Savarialsescape did not occur from a "county jail" under
5    45-7-306 (3) (b) (i), MCA, and properly proceeded with the only
statutory alternative of sentencing Savaria under misdemeanor

escape, 5 45-7-306(3) (c), MCA.
          Affirmed.




                                             Chief Justice
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We concur:




 HE-&&^      Justices
