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MT Sheep Hunter Fined

We have an obligation when hunting to know the law and to be careful when using a weapon that can take a human life as well as big game life. Is an unfortunate situation but I have zero issue with the law being applied as written. If this keeps some of us from doing the right thing then that goes back to character is revealed when no one else is watching.
 
Ben, I was thinking the same thing, especially in light of seeing other intentional violations receive a slap on the hand.

When I read this earlier, my first thought was good on the guy for calling it in, but others, reading about this, might not be so inclined to make a call now, anticipating similar fines and loss of privileges.

Discretion, is one of the subjects that I interviewed FWP's Ron Jendro (enforcement) about a couple weeks ago, as well as my wanting to take a look at the judicial side of things, the judges discretion. Surely, with the wardens corroboration of the scene, there should have been a reduction of the fine and loss of privilege, if any.
 
If this keeps some of us from doing the right thing then that goes back to character is revealed when no one else is watching.

This ^^^^. Amazing how quick a man can go Bundy when he can't set his own price.

Anyone who doesn't like limitations on judicial discretion should take it up with the folks who took it away. They are usually "law and order" tough guy politicians who think punishment is the only way to learn someone, even before they know the facts. We know who those politicians are.
 
I'd guess he did not have an attorney or request a trial.


Tough thing is with mandatory minimum sentences, and the "mandatory" trophy price that the State has assigned to the Big Horns....


Someday, we will have legislatures that trust judges. Until then, we will have barstool voters with Faux Outrage demanding long criminal sentences on pot smokers, accidental hunting incidents, and enemy combatants in the War on Christmas.
 
DA has a choice when to use trophy restitution.

Also a couple clear words in this section, in addition to "shall" are "purposely or knowingly illegally killing":

87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;
(2) elk with at least six points on one antler, as defined by commission regulation, or any grizzly bear, $8,000;
(3) moose having antlers with a total spread of at least 30 inches, as defined by commission regulation, or any mountain goat, $6,000;
(4) antlered deer with at least four points on one antler as defined by commission regulation, $8,000;
(5) antelope with at least one horn greater than 14 inches in length as defined by commission regulation, $2,000.
 
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I once was a witness in a trail for an "illegally" taken trophy animal. Hunter was labeled a poacher on all the state newspaper covers and spent in excess of $5,000 on an attorney. Trial was 6 months after the fact, short, and after a 5 minute deliberation he was found not guilty. FWP returned the head and several hundred pounds of "burger" afterwards. Shortly after the trial, the warden who wrote the ticket apologized to me in the gym, saying he hadn't even seen those regulations sent to hunters by MT FWP before writing ticket. Thanks. Your sorry? Ha.

The hunter later had the animals head tattooed on his shoulder and made a point to show the regional FWP director, after the fact. At least he had a sense of humor. I wouldn't find anything funny about it, or especially a 32K fine and 30 month hunting suspension. I'm fairly positive that 99% of those aware of this incident, faced with something similar someday, will not be volunteering for a 30K fine, regardless if somebody is looking, or if they are all alone with their conscious.

For those who preach otherwise, save your posts in the "Wednesday's Word" section where they belong.
 
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Shoulda lost lic. for longer & in recip.states, just for shooting into a group of animals,after not making sure of the 1st shot....Maybe have to take a hunter safety & shooting safety class , every year for 3 yrs...sorry I'm tired of shitty fines on big things & big things going unpunished. (Former LEO)
On a BH OIL type tag?
The fine is the fine. Maybe a bit steep.
Fine with me to see a real fine for a change. A case of pink hand is the usual fine & or sentence.
In NM I bet the 10k fine for trophy poaching has only been given a couple of times out of possible dozens of cases. No data to back that up, but most likely true.
The discretion thing does look slighted, usually for a ferner.....non local.
I bet most of the cases brought to court here in my area get tossed. Except someone from out of state without a lawyer.
 
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I'm fairly positive that 99% of those aware of this incident, faced with something similar someday, will not be volunteering for a 30K fine, regardless if somebody is looking, or if they are all alone with their conscious.

For those who preach otherwise, save your posts in the "Wednesday's Word" section where they belong.

I'm fairly positive you are right that 99% are dishonorable. I'm also 99% positive you are one of those people who vote for "get tough" politicians and D.A.s who limit their own and judicial discretion. I'll preach right here and if I ever catch you doing this shit you can go to jail where you belong.
 
Here are the compelling statutes:

Over-Limit Killing:
http://leg.mt.gov/bills/mca/87/6/87-6-413.htm

(1) A person may not attempt to kill, take, shoot, or capture or kill, take, hunt, shoot, or capture more than one game animal of any one species in any 1 license year unless the killing of more than one game animal of that species has been authorized by regulations of the department.
(2) If a person is convicted or forfeits bond or bail after being charged with hunting or killing over the limit of:
(a) mountain sheep, moose, wild buffalo, caribou, mountain goat, black bear, or grizzly bear, the person shall be fined not less than $500 or more than $2,000 or be imprisoned in the county detention center for not more than 6 months, or both. In addition, the person shall forfeit any current hunting, fishing, recreational use, or trapping license issued by this state and the privilege to hunt, fish, or trap in this state for 30 months from the date of conviction or forfeiture unless the court imposes a longer period.

(3) A person convicted of unlawful taking of more than double the legal bag limit as described in this section may be subject to the additional penalties provided in 87-6-901 and 87-6-902.
(4) A violation of this section may also result in an order to pay restitution pursuant to 87-6-905 through 87-6-907.

What it takes to find restitution is warranted:
http://leg.mt.gov/bills/mca/87/6/87-6-905.htm

87-6-905. Finding required for restitution. Before restitution may be ordered pursuant to 87-6-906 or 87-6-907, the finder of fact at trial or the court upon entry of a guilty or nolo contendere plea shall find that the illegal killing or possession was done knowingly or purposely as defined in 45-2-101. This finding is not required for state reimbursement under 87-6-906 when bond or bail is forfeited.

MCA 45-2-101 defines what constitutes knowingly or purposely:

(35) "Knowingly"--a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person's own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person's conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. Equivalent terms, such as "knowing" or "with knowledge", have the same meaning.

(65) "Purposely"--a person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person's conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. Equivalent terms, such as "purpose" and "with the purpose", have the same meaning.

Restitution statute clearly states that the fine is mandatory so long as it is determined that the actions were knowingly or purposely taken:
http://leg.mt.gov/bills/mca/87/6/87-6-907.htm

87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;

The way the story reads, it doesn't sound like the hunter knowingly or purposely acted to take three sheep. I bet he would win an appeal on the license suspension and trophy restitution fine if he went after it. I can see why the judge may have thought that this deserved the restitution, but I also think that a little bit more common sense would have led him to not make that part of the ruling.

EDIT: After reading it a little more closely, it would seem that entering a guilty or No Lo Contendre plea would necessitate the restitution fine as it defacto proves knowingly or purposely committing an illegal act.
 
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DA has a choice when to use trophy restitution.

Also a couple clear words in this section, in addition to "shall" are "purposely or knowingly illegally killing":

87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
.



The DA may have a choice, but the JUDGE doesn't.....

Judge Strine said in an interview with the Daily Inter Lake that although the game warden corroborated Fleming’s account of the sheep killings, the law gives him no leeway on restitution for those convicted of illegally harvesting animals.

The law says ‘shall,’ not ‘may,’ so that pretty much takes the discretion away from the judge,” Strine said. But he added that he could have suspended Fleming’s sportsman privileges for considerably longer than he did.

Strine also said he allowed Fleming to make the payments in installments, citing the accidental nature of the crime.

Keep in mind, I never passed the Montana Bar exam, so I have that going for me....


There is a reason we have so many bumper stickers with "Shoot, Shovel, and ShutUp"....
 
Here are the compelling statutes:



The way the story reads, it doesn't sound like the hunter knowingly or purposely acted to take three sheep. I bet he would win an appeal on the license suspension and trophy restitution fine if he went after it. I can see why the judge may have thought that this deserved the restitution, but I also think that a little bit more common sense would have led him to not make that part of the ruling.

EDIT: After reading it a little more closely, it would seem that entering a guilty or No Lo Contendre plea would necessitate the restitution fine as it defacto proves knowingly or purposely committing an illegal act.


I just now see your edit.

But, yes, he agreed to the "knowingly" and the "purposely". I don't see the judge having any option, nor, do I see him able to appeal a guilty plea, after he decided he didn't like the penalty.

That is not how this works, not how any of this works....


I go back to the "let's let judges have discretion" arguments, and quit with the Faux Outrage every time we have some "liberal activist Judge, legislating from the bench" and not sentencing 4th graders who don't participate in the nativity scene at their local school program.




.
 
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I just now see your edit.

But, yes, he agreed to the "knowingly" and the "purposely". I don't see the judge having any option, nor, do I see him able to appeal a guilty plea, after he decided he didn't like the penalty.

That is not how this works, not how any of this works....


.

Yep. I think that's right, unfortunately. Easiest way to fix this is by giving the judge more flexibility by changing shall to may in 87-6-907. Then we can argue about how light the sentences are for poachers who knowingly and purposely poach critters.
 
I think the fines were reasonable. It is the restitution that seems like it could have been dismissed if proven to be a honest mistake (kind of like when you hit a trophy with a car). I suppose the restitution statute could be updated to reflect something like that??
 
There seems to be room for an argument that the intent goes to the act and not to the criminality of the act. In other words, he meant to do what he did even if he did not intend to commit a violation. The fact that what he did might also constitute a violation goes to the ignorance of the law issue.

But regardless, we are all guessing if we don't have the findings of fact and conclusions of law which are specifically required to show that the (illegal?) killing was done knowingly or purposely. Even if the intent to commit a crime is required, that finding had to be made and facts had to be found to support it. Where is the judges decision and what did he base it upon?
 
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A guy did this same thing a few years back within plain sight and a few hundred yards from the Darby check station on a couple raghorns. The whole crew from the check station watched as he shot one bull it ran off so he shot another followed closely by them both tipping over.
 

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