dissent">MR. JUSTICE SHEEHY

dissenting:

This case is controlled by State v. Whiteshield (1980), 185 Mont. 208, 605 P.2d 189. The majority in this case is backtracking from the position we took in Whiteshieldto the effect that whether escape is a felony or a misdemeanor depends upon the degree of risk which the escape creates. This was obviously the intent of the commission that drew up the statute and it was also our intent in handing down the decision in Whiteshield.

To be clear about it, Swan River Youth Forest Camp is not a state prison. It is true that only felons are committed to the camp, but it is also true that only felons are placed on furlough, and in Whiteshield, that single factor was enough for us to decide that an escape from a furlough was a felony.

Under sections 41-5-523(2)(b) and 41-5-523(3), MCA, delinquent youth between sixteen and twenty-one years of age may not be committed or transferred to a penal institution or other facility *42used for the execution of sentence of able persons convicted of crimes unless there is first a determination made as to whether the youth should be assigned to the Youth Forest Camp. Contrary to what is said in the majority opinion, the Youth Forest Camp is not a prison, but is rather a place where a work program is established by the camp superintendent and the Department of Natural Resources and Conservation (section 53-30-205,MCA) to rehabilitate the youthful offender. The very purpose of the legislature in establishing a Youth Forest Camp was to avoid imprisonment of youthful offenders in the state prison.

While Youth Forest Camp residents are not free to move about like persons on furlough, this should not be a point of emphasis in our decision. Our escape statute places less emphasis on the type of confinement than on the type of risk created by the escape.

I would reverse the District Court.

Citation profile

Relationships

How this case has been treated — in progress