What is Required to Prove a Criminal Trespassing Conviction in Montana?
Full Question:
Answer:
Criminal trespass is committed only if the offender, immediately prior to entry, receives oral or written notice that such entry is forbidden, or he remains upon the land after being notified to leave. The answer will depend in part on the public or private nature of the land and any notices posted.
A nolo contendre plea in a criminal case may not be used against the same person in a civil suit based on the same facts. Therefore, if you were sued later in civil court for damages, it would not be used as an admission of guilt. However, it may be required to be disclosed on certain applications, such as an employment or insurance application. Both a gulty plea and no contest plea may appear on your record as a conviction. If it was accidental and no criminal intent was involved, a not guilty plea may be made.
Unless there is a very good reason to do otherwise, a plea at arraignment is typically recommended to be “not guilty”. Even if a defendant feels he is guilty, he should still plead not guilty until after an opportunity to consult with a lawyer or think it over. A guilty plea can always be entered later. A defendant has the right at almost any time to change his or her plea from “not guilty” to “guilty.” It is not usually possible, however, to change from a guilty plea to a not guilty plea. Once a guilty plea is entered, it usually is permanent. Usually, to be allowed to change a guilty plea, it must be shown that there was coercion, deception, or other misconduct that prevented a voluntary plea from being made.
In some cases a judge will grant a deferred or withheld adjudication, which imposes certain probationary conditions to a dismissal of the charges. If the defendant successfully completes the terms of probation, and the charges are then dismissed, that person can truthfully answer no if asked whether he/she was ever convicted of that crime.
Generally, it is recommended that a defendant appear on time, dress appropriately, address the court with respect, don’t interrupt the judge, and keep answers brief and to the point. We are prohibited from giving legal advice, such as how to plea or what to say at a hearing. We suggest that he consult with a local attorney who can review all the facts and circumstances involved. An attorney who is familiar with the intricacies of the law and the local court will be in the best position to make a recommendation on a plea or negotiate a plea bargain with the prosecutor.
Please see the following MT statute:
45-6-203. Criminal trespass to property.
(1) Except as provided in 15-7-139, 70-16-111, and 76-13-116, a person commits the offense of criminal trespass to property if the person knowingly:
(a) enters or remains unlawfully in an occupied structure; or
(b) enters or remains unlawfully in or upon the premises of another.
(2) A person convicted of the offense of criminal trespass to property shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both.
(3) A person convicted of or who forfeits bond or bail for committing an act of criminal trespass involving property owned or administered by the department of fish, wildlife, and parks or while hunting, fishing, or trapping is subject to an additional penalty as provided in 87-1-102(2)(f).
History: En. 94-6-203 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-6-203; amd. Sec. 1, Ch. 604, L. 1993; amd. Sec. 4, Ch. 5, L. 2003; amd. Sec. 2, Ch. 336, L. 2007; amd. Sec. 3, Ch. 121, L. 2009.
Criminal Law Commission Comments:
Source: Ill. C.C. 1961, Chapter 38, § 21-3.
This section covers criminal trespass to land without regard to the nature, use or location of the land. Criminal trespass is committed only if the offender, immediately prior to entry, receives oral or written notice that such entry is forbidden, or he remains upon the land after being notified to leave. The section differs substantially from R.C.M 1947, section 94-3308, "Malicious injuries to freehold," in that no specific act causing damage need be alleged, only the unlawful presence of the offender. Should damage occur during the trespass, the offender could be prosecuted under section 94-6-102 [R.C.M. 1947], Criminal Mischief [now MCA, 45-6-101].
Compiler's Comments:
2009 Amendment: Chapter 121 inserted (3) adding an additional penalty for criminal trespass to property owned or administered by the department of fish, wildlife, and parks. Amendment effective October 1, 2009.
2007 Amendment: Chapter 336 in (1) inserted reference to 76-13-116; and made minor changes in style. Amendment effective June 1, 2007.
2003 Amendment: Chapter 5 near beginning of (1) inserted reference to 15-7-139; and made minor changes in style. Amendment effective February 6, 2003.
1993 Amendment: Chapter 604 at beginning of (1) inserted exception clause; and made minor changes in style.
Annotator's Note: This section substantially expands prior law by making individuals criminally liable for knowing trespass. Under former law trespass was not criminal unless the trespasser did some prohibited act, such as hunting, building fires or injuring the realty, and it was these acts, not the trespass itself, which constituted the criminal conduct.
A consideration of the combined effect of MCA, 45-3-104 (Use of Force in Defense of Property), § 45-6-201 (Definition of "Enter or Remain Unlawfully") and this section indicates that a landowner has no right to use force against an individual who innocently and unknowingly trespasses, since until he is given notice he has committed no offense. MCA, 45-3-104 does give the landowner the right to use force to remove a trespasser who has been given notice. It is, however, hoped that the effect of this group of statutes will be to encourage the landowner to call in peace officers. Previously, since mere trespass was not an offense, a landowner could not call in peace officers and was, as a result, often placed in a situation in which his only remedy was self-help. It should also be noted that the landowner is limited in any event to the use of reasonable force and can use deadly force or force likely to cause serious bodily injury only to prevent the commission of a forcible felony.
