Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 1. GENERAL PROVISIONS · Part 4. Incarceration Enhancement
Montana Code Annotated

Mont. Code Ann. § 46-1-401 (2026)

Penalty Enhancement -- Pleading, Proof, And Mental State Requirements

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 1
  4. Part 4
  5. 46-1-401 Penalty enhancement -- pleading, proof, and mental state requirements

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 1. GENERAL PROVISIONS

Part 4. Incarceration Enhancement

Penalty Enhancement -- Pleading, Proof, And Mental State Requirements

46-1-401. Penalty enhancement -- pleading, proof, and mental state requirements. (1) A court may not impose a penalty enhancement specified in Title 45, Title 46, or any other provision of law unless:

(a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment, with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact;

(b) if the case was tried before a jury, the jury unanimously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt;

(c) if the case was tried to the court without a jury, the court finds beyond a reasonable doubt that the enhancing act, omission, or fact occurred; and

(d) a defendant who knowingly and voluntarily pleaded guilty to an offense also admitted to the enhancing act, omission, or fact.

(2) The enhancement issue may be submitted to a jury on a form separate from the verdict form or may be separately stated on the verdict form. The jury must be instructed that it is to reach a verdict on the offense charged in the information, complaint, or indictment before the jury can consider whether the enhancing act, omission, or fact occurred.

(3) An enhancing act, omission, or fact is an act, omission, or fact, whether stated in the statute defining the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and that allows or requires a sentencing court to add to, as provided by statute, a penalty provided by statute for the charged offense or to impose the death penalty instead of a statutory incarceration period provided by statute for the charged offense. Except as provided in subsection (4), the aggravating circumstances contained in 46-18-303 are enhancing acts, omissions, or facts.

(4) Use of the fact of one or more prior convictions for the same type of offense or for one or more other types of offenses to enhance the penalty for a charged offense is not subject to the requirements of this section.

History: En. Sec. 1, Ch. 524, L. 2001; amd. Sec. 1, Ch. 154, L. 2003.

Notes of Decisions
Cited in 23 cases (4 in the last 5 years), 2002–2026 · leading case: State v. Garrymore, 2006 MT 245 (Mont. 2006).
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State v. Garrymore, 2006 MT 245 (Mont. 2006). · cites it 56× “Accordingly, Garrymore argues that the imposition of the parole eligibility restriction by the District Court violated his rights to trial by jury and due process guaranteed by both the Montana and United States Constitutions, as well as commensurate state statutory rights…”
Miller v. Eighteenth Jud. Dist. Court, 2007 MT 149 (Mont. 2007). · cites it 30× “of the Standards states: In any case in which death is a potential punishment, the prosecutor shall comply with Section 46-1-401, MCA, and shall file with the district court, within 60 days after arraignment, and serve upon counsel of record a notice stating whether the…”
State v. Rosling, 2008 MT 62 (Mont. 2008). · cites it 12× “¶62 On appeal, Rosling contends that imposition of the parole-eligibility restriction violated his rights to due process and a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article II, Sections 17, 24, and 26 of the Montana…”
State v. Ghostbear, 338 P.3d 25 (Mont. 2014). · cites it 47× “enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years older under the provisions of § 46-1-401, MCA.”
State v. T. Le, 2017 MT 82 (Mont. 2017). · cites it 14× “2348 (2000), and § 46-1-401, MCA, Montana’s statutory counterpart to the Apprendi decision, and that it constituted an excessive penalty prohibited by the Montana and U.”
Adams v. State, 2007 MT 35 (Mont. 2007). · cites it 6× “¶53 In 2001, in accordance with the Apprendi decision, the Montana Legislature amended § 46-18-221, MCA, so that in order to enhance a sentence for an offense committed with a dangerous weapon, the provisions of § 46-1-401, MCA, must be complied with. With regard to jury trials,…”
State v. Strauss, 2003 MT 195 (Mont. 2003). · cites it 6× “She cites § 46-1-401(1), MCA, which provides the following: A court may not impose an incarceration penalty enhancement .”
State v. Stewart, 2012 MT 317 (Mont. 2012). · cites it 4× “when she was 18 are not relevant to prove that Stewart engaged in incest with her when she was under 16, the age of the victim is a fact (albeit, one which the State notes in its brief must be proved beyond a reasonable doubt, see § 46-1-401, MCA) that goes to sentencing.”
State v. Schmidt, 2009 MT 450 (Mont. 2009). · cites it 6× “¶ 68 Did the District Court properly instruct the jury on weapons enhancement? ¶ 69 A court may impose a penalty enhancement once a jury makes a unanimous finding of guilt as to the underlying crime.”
State v. Ghostbear, 2014 MT 192 (Mont. 2014). · cites it 65× “Ghostbear argued that the felony penalty in § 45-5-502(3), MCA, was simply a penalty enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years…”
State v. Petersen, 2011 MT 22 (Mont. 2011). · cites it 3× “The State responded, arguing that while the court’s enhancement sentence was precluded because the State did not seek a penalty enhancement in its Information as required in § 46-1-401, MCA, the remedy was not to allow Petersen to withdraw his plea, but rather to strike the…”
State v. Price, 2002 MT 284 (Mont. 2002). · cites it 2× “¶38 Price also contends that his sentence was imposed in violation of § 46-1-401, MCA. However, because his conviction has been set aside and the case is remanded, his sentence is also vacated and we need not address whether it was legally imposed.”
Show all 23 citing cases →
— Mont. Code Ann. § 46-1-401(1) — 3 cases
State v. Strauss, 2003 MT 195 (Mont. 2003). “She cites § 46-1-401(1), MCA, which provides the following: A court may not impose an incarceration penalty enhancement .”
State v. Steele, 921 So. 2d 538 (Fla. 2006).
State v. T. Le, 2017 MT 82 (Mont. 2017). “2348 (2000), and § 46-1-401, MCA, Montana’s statutory counterpart to the Apprendi decision, and that it constituted an excessive penalty prohibited by the Montana and U.”
— Mont. Code Ann. § 46-1-401(1)(a) — 5 cases
State v. T. Le, 2017 MT 82 (Mont. 2017). “2348 (2000), and § 46-1-401, MCA, Montana’s statutory counterpart to the Apprendi decision, and that it constituted an excessive penalty prohibited by the Montana and U.”
Marshall v. Crosby, 911 So. 2d 1129 (Fla. 2005).
State v. S. Maggi, 2024 MT 90 (Mont. 2024).
State v. Ghostbear, 2014 MT 192 (Mont. 2014). “Ghostbear argued that the felony penalty in § 45-5-502(3), MCA, was simply a penalty enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years…”
State v. Reimer, 2016 MT 71N (Mont. 2016).
— Mont. Code Ann. § 46-1-401(1)(b) — 1 case
State v. Ghostbear, 2014 MT 192 (Mont. 2014). “Ghostbear argued that the felony penalty in § 45-5-502(3), MCA, was simply a penalty enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years…”
— Mont. Code Ann. § 46-1-401(1)(d) — 1 case
W. Cooper v. DOJ, DCI, 2026 MT 4 (Mont. 2026).
— Mont. Code Ann. § 46-1-401(3) — 6 cases
State v. Ghostbear, 338 P.3d 25 (Mont. 2014). “enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years older under the provisions of § 46-1-401, MCA.”
State v. Garrymore, 2006 MT 245 (Mont. 2006). “Accordingly, Garrymore argues that the imposition of the parole eligibility restriction by the District Court violated his rights to trial by jury and due process guaranteed by both the Montana and United States Constitutions, as well as commensurate state statutory rights…”
State v. T. Le, 2017 MT 82 (Mont. 2017). “2348 (2000), and § 46-1-401, MCA, Montana’s statutory counterpart to the Apprendi decision, and that it constituted an excessive penalty prohibited by the Montana and U.”
State v. Ghostbear, 2014 MT 192 (Mont. 2014). “Ghostbear argued that the felony penalty in § 45-5-502(3), MCA, was simply a penalty enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years…”
State v. D. Meyer, 2017 MT 124 (Mont. 2017).
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