Current through Chapter 783 of the 2023 Regular Session
Section 16-12-113 - Decriminalized acts -- petition for expungement or resentencing -- retroactive application(1) A person currently serving a sentence for an act that is permitted under this chapter or is punishable by a lesser sentence under this chapter than the person was awarded may petition for an expungement of the conviction or resentencing.(2) Upon receiving a petition under subsection (1), the expungement or resentencing of marijuana conviction court, as provided in 16-12-114 through 16-12-116, shall presume the petitioner satisfies the criteria in subsection (1) unless the county attorney provides the court with a reasonable basis on which the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subsection (1), the court shall grant the petition unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.(3) A person who is serving a sentence and is resentenced pursuant to subsection (1) must be given credit for any time already served and may not be subject to supervision.(4) Resentencing under this section may not result in the imposition of a term longer than the original sentence or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(5)(a) A person who has completed a sentence for an act that is permitted under this chapter or is punishable by a lesser sentence under this chapter than the person was awarded may petition the sentencing court to:(i) expunge the conviction; or(ii) redesignate the conviction as a misdemeanor or civil infraction in accordance with this chapter.(b) The petition must be served on the county attorney for the county where the petition is filed.(6) Upon receiving a petition under subsection (5), the court shall presume the petitioner satisfies the criteria in subsection (5) unless the county attorney provides the court with a reasonable basis on which the petitioner does not satisfy the criteria. Once the applicant satisfies the criteria in subsection (5), the court shall redesignate the conviction as a misdemeanor or civil infraction or expunge the conviction as legally invalid pursuant to this chapter.(7) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (5).(8) Any felony conviction that is recalled under subsection (1) or designated as a misdemeanor or civil infraction under subsection (5) must be considered a misdemeanor or civil infraction for all purposes. Any misdemeanor conviction that is recalled and resentenced under subsection (1) or designated as a civil infraction under subsection (5) must be considered a civil infraction for all purposes.(9) Nothing in this section constitutes a waiver of any right or remedy otherwise available to the petitioner or applicant.(10) Nothing in this chapter is intended to impact the finality of judgment in any case not falling within the purview of this chapter.(11) The provisions of this section apply equally to juvenile cases if the juvenile would not have been guilty of an offense or would have been guilty of a lesser offense under this chapter.(12) Petitioning for expungement or resentencing pursuant to this section does not make a person ineligible to petition for misdemeanor expungement pursuant to Title 46, chapter 18, part 11.Amended by Laws 2021, Ch. 576,Sec. 48, eff. 1/1/2022.En. Sec. 36, I.M. No. 190, approved Nov. 3, 2020, eff. 1/2021.Contingent voidness. Section 115 of Laws 2021, Ch. 576 provides: "Contingent voidness. If the Montana supreme court determines that Initiative Measure No. 190, approved November 3, 2020, other than the portions relating to revenue distribution, is in violation of the Montana constitution and the constitutional infirmity invalidates the entire initiative, then both Initiative Measure No. 190 and [this act] [Ch. 576] are void."Section 57 of I.M. No. 190 provides: "Retroactive applicability. [Section 36] applies retroactively, within the meaning of 1-2-109, as provided in [section 36].