Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 13. PRETRIAL MOTIONS · Part 1. General Provisions
Montana Code Annotated

Mont. Code Ann. § 46-13-108 (2026)

Notice By Prosecutor Seeking Persistent Felony Offender Status

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 13
  4. Part 1
  5. 46-13-108 Notice by prosecutor seeking persistent felony offender status

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 13. PRETRIAL MOTIONS

Part 1. General Provisions

Notice By Prosecutor Seeking Persistent Felony Offender Status

46-13-108. Notice by prosecutor seeking persistent felony offender status. (1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender or a persistent felony offender under supervision, notice of that fact must be given at or before the omnibus hearing pursuant to 46-13-110.

(2) The notice must specify the alleged prior convictions and may not be made known to the jury before the verdict is returned except as allowed by the Montana Rules of Evidence.

(3) If the defendant objects to the allegations contained in the notice, the judge shall conduct a hearing to determine if the allegations in the notice are true.

(4) The hearing must be held before the judge alone. If the judge finds any allegations of the prior convictions are true, the accused must be sentenced as provided by law.

(5) The notice must be filed and sealed until the time of trial or until a plea of guilty or nolo contendere is given by the defendant.

History: En. 95-1506 by Sec. 1, Ch. 196, L. 1967; amd. Sup. Ct. Ord. 11450-2-3-4, Oct. 10, 1968, eff. Dec. 1, 1968; amd. Sec. 20, Ch. 184, L. 1977; R.C.M. 1947, 95-1506; amd. Sec. 171, Ch. 800, L. 1991; Sec. 46-18-503, MCA 1989; redes. 46-13-108 by Code Commissioner, 1991; amd. Sec. 23, Ch. 262, L. 1993; amd. Sec. 12, Ch. 395, L. 1999; amd. Sec. 2, Ch. 649, L. 2023.

Notes of Decisions
Cited in 38 cases (7 in the last 5 years), 1991–2025 · leading case: State v. Brendal, 2009 MT 236 (Mont. 2009).
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State v. Brendal, 2009 MT 236 (Mont. 2009). · cites it 32× “2 We held that the DUI statutes fell with the ambit of the PFO statute, and stated that "[a] district court possesses the authority to designate and sentence a persistent felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the definition of a felony…”
Miller v. Eighteenth Jud. Dist. Court, 2007 MT 149 (Mont. 2007). · cites it 18× “Thus, contrary to the State's and the District Court's supposition, we did not read a no-prejudice exception into § 46-13-108, MCA, and Shults is not authority to do so in the present cases.”
State v. Shults, 2006 MT 100 (Mont. 2006). · cites it 14× “Did the District Court correctly determine that the State provided adequate notice of its intention to seek treatment of Shults *132 as a PFO pursuant to § 46-13-108, MCA? ¶5 3. Are Montana’s PFO statutes unconstitutional on their face and/or as applied to Shults? ¶6 4.”
State v. Minez, 2003 MT 344 (Mont. 2003). · cites it 14× “He points out that § 46-13-108, MCA (1999), requires the State to provide notice of intent to seek persistent felony offender status at or before the omnibus hearing, except for good cause shown.”
State v. Niederklopfer, 2000 MT 187 (Mont. 2000). · cites it 22× “¶9 Niederklopfer contends that the portion of his sentence imposed because he was designated a persistent felony offender was unlawful because the State failed to comply with the notice provisions of § 46-13-108, MCA, before designating him a persistent felony offender pursuant…”
State v. Dist. Court of the Eighteenth Jud. Dist. of Montana, 2010 MT 263 (Mont. 2010). · cites it 7× “That provision, now codified at §46-13-108, MCA (2009), requires the prosecution to give notice if it intends to seek treatment of the accused as a persistent felony offender (PFO).”
State v. Gallagher, 2005 MT 336 (Mont. 2005). · cites it 8× “¶ 29 Did the District Court impose a sentence in violation of §§ 46-18-501 and 46-18-502, MCA, by sentencing the Defendant as a persistent felony offender without entering findings of fact? ¶ 30 Pursuant to § 46-13-108, MCA, the county attorney gave notice of his intention to…”
State v. Damon, 2005 MT 218 (Mont. 2005). · cites it 4× “A district court possesses the authority to designate and sentence a persistent felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the definition of a felony and the State has provided proper notice of its intent to seek persistent felony offender…”
State v. Bales, 1999 MT 334 (Mont. 1999). · cites it 10× “¶32 Bales argues that under § 46-13-108, MCA, the State was required but failed to file written notice of its intent to have Bales designated as a persistent felony offender (hereafter, the State’s notice) by the date of the August, 1996 Omnibus hearing.”
State v. Martin, 435 P.3d 73 (Mont. 2019). · cites it 31× “A PFO is an offender who has previously been convicted of a felony, who is presently being sentenced for a second felony committed on a different occasion within five years of the previous felony or within five years of the "offender's release on parole or otherwise from prison…”
State v. Mainwaring, 2007 MT 14 (Mont. 2007). · cites it 4× “3d 1194, ¶ 37 (citations omitted), we held that “[a] district court possesses the authority to designate and sentence a persistent felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the definition of a felony and the State has provided proper notice…”
State v. McQuiston, 922 P.2d 519 (Mont. 1996). · cites it 7× “Section 46-13-108(1), MCA, requires the prosecution to give notice at or before the omnibus hearing of its intent to treat the accused as a persistent felony offender.”
Show all 38 citing cases →
— Mont. Code Ann. § 46-13-108(1) — 14 cases
State v. Brendal, 2009 MT 236 (Mont. 2009). “2 We held that the DUI statutes fell with the ambit of the PFO statute, and stated that "[a] district court possesses the authority to designate and sentence a persistent felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the definition of a felony…”
Miller v. Eighteenth Jud. Dist. Court, 2007 MT 149 (Mont. 2007). “Thus, contrary to the State's and the District Court's supposition, we did not read a no-prejudice exception into § 46-13-108, MCA, and Shults is not authority to do so in the present cases.”
State v. McQuiston, 922 P.2d 519 (Mont. 1996). “Section 46-13-108(1), MCA, requires the prosecution to give notice at or before the omnibus hearing of its intent to treat the accused as a persistent felony offender.”
State v. Bales, 1999 MT 334 (Mont. 1999). “¶32 Bales argues that under § 46-13-108, MCA, the State was required but failed to file written notice of its intent to have Bales designated as a persistent felony offender (hereafter, the State’s notice) by the date of the August, 1996 Omnibus hearing.”
State v. Brooks, 2010 MT 226 (Mont. 2010).
— Mont. Code Ann. § 46-13-108(2) — 5 cases
Miller v. Eighteenth Jud. Dist. Court, 2007 MT 149 (Mont. 2007). “Thus, contrary to the State's and the District Court's supposition, we did not read a no-prejudice exception into § 46-13-108, MCA, and Shults is not authority to do so in the present cases.”
State v. Dist. Court of the Eighteenth Jud. Dist. of Montana, 2010 MT 263 (Mont. 2010). “That provision, now codified at §46-13-108, MCA (2009), requires the prosecution to give notice if it intends to seek treatment of the accused as a persistent felony offender (PFO).”
State v. David Kime, 2013 MT 14 (Mont. 2013).
State v. N. Gardner, 2024 MT 283 (Mont. 2024).
State v. J. Anderson, 2025 MT 189 (Mont. 2025).
— Mont. Code Ann. § 46-13-108(3) — 9 cases
State v. Minez, 2003 MT 344 (Mont. 2003). “He points out that § 46-13-108, MCA (1999), requires the State to provide notice of intent to seek persistent felony offender status at or before the omnibus hearing, except for good cause shown.”
State v. Brendal, 2009 MT 236 (Mont. 2009). “2 We held that the DUI statutes fell with the ambit of the PFO statute, and stated that "[a] district court possesses the authority to designate and sentence a persistent felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the definition of a felony…”
State v. Gallagher, 2005 MT 336 (Mont. 2005). “¶ 29 Did the District Court impose a sentence in violation of §§ 46-18-501 and 46-18-502, MCA, by sentencing the Defendant as a persistent felony offender without entering findings of fact? ¶ 30 Pursuant to § 46-13-108, MCA, the county attorney gave notice of his intention to…”
State v. Brooks, 2010 MT 226 (Mont. 2010).
State v. McQuiston, 922 P.2d 519 (Mont. 1996). “Section 46-13-108(1), MCA, requires the prosecution to give notice at or before the omnibus hearing of its intent to treat the accused as a persistent felony offender.”
— Mont. Code Ann. § 46-13-108(4) — 3 cases
State v. Brendal, 2009 MT 236 (Mont. 2009). “2 We held that the DUI statutes fell with the ambit of the PFO statute, and stated that "[a] district court possesses the authority to designate and sentence a persistent felony offender pursuant to § 46-18-502, MCA, when the underlying charge meets the definition of a felony…”
State v. N. Gardner, 2024 MT 283 (Mont. 2024).
State v. J. Anderson, 2025 MT 189 (Mont. 2025).
— Mont. Code Ann. § 46-13-108(5) — 2 cases
State v. McQuiston, 922 P.2d 519 (Mont. 1996). “Section 46-13-108(1), MCA, requires the prosecution to give notice at or before the omnibus hearing of its intent to treat the accused as a persistent felony offender.”
State v. Niederklopfer, 2000 MT 187 (Mont. 2000). “¶9 Niederklopfer contends that the portion of his sentence imposed because he was designated a persistent felony offender was unlawful because the State failed to comply with the notice provisions of § 46-13-108, MCA, before designating him a persistent felony offender pursuant…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.