Burglary Within a Prison In Montana

Under the Montana burglary statute, "a person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein." Mont. Code Ann. § 45-6-204(1) (1999).

Previous statutes established that to constitute burglary, an act must have been directed against an occupied structure.

The new code is not as technically restrictive, but it does require the structure entered to be occupied, suited for human occupancy or night lodging of persons or for carrying on business.

This in effect limits the burglary statute's application to those situations where human life is at the greatest risk.

Recently, the Montana Supreme Court affirmed a conviction because a prison's maximum-security cellblock satisfied the definition of "occupied structure" under the Montana statute. State v. Gollehon, 262 Mont. 293, 864 P.2d 1257, 1260-61 (1993).

Gollehon maintained the unit was "one single building, and that no sections of the building constitute a separate occupied structure apart from the remainder of the unit." 864 P.2d at 1261.

Therefore, he contended, he could not be charged with burglary.

The Montana Supreme Court emphasized that each separately secured block was intended for human occupancy and although no prisoners were previously convicted for burglary within the prison, the plain and clear language contemplates that burglary can occur if there is unauthorized entry within the block. Id.