State v. M. Howard

Can Montana Revoke Probation for a Crime You Were Never Charged With? State v. M. Howard, 2020 MT 279

Boland Aarab PLLP

Yes. In State v. M. Howard, 2020 MT 279, the Montana Supreme Court unanimously held that a suspended sentence can be revoked for conduct that amounts to a new criminal offense even if the person has not been charged or convicted. The State must prove the conduct only by a preponderance of the evidence, and the Court held that the 2017 revocation reforms did not change that rule.

Key Takeaways

• A revocation proceeding is civil. Conduct that supports a new criminal offense can be the basis for revocation if proven by a preponderance of the evidence, “even if the criminal charges are dismissed” (M. Howard ¶ 13).
• The 2017 amendments to § 46-18-203, MCA, which made a “new criminal offense” a non-compliance violation, did not revise that principle (¶ 13).
• The Rules of Evidence do not apply at revocation hearings. Detailed testimony from an experienced detective was enough, even though the images themselves were not introduced (¶ 16).
• A single violation is enough to support revocation (¶ 17).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · Later decisions · FAQ

The lawyers who argued this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in State v. M. Howard?

In 2011 Mr. Howard pleaded guilty to felony aggravated assault and misdemeanor endangering the welfare of a child. He received 15 years to the Department of Corrections, with 10 suspended (¶ 2). He began serving the suspended portion under supervision in December 2015 (¶ 3).

In 2018 the State petitioned to revoke. It alleged he had violated the condition to obey all laws in two ways: by failing to update his address with the offender registry, and by committing sexual abuse of children based on images an informant said were on his phone (¶¶ 3–5). At the March 2019 hearing he had not been charged with sexual abuse of children. He was charged with failure to register that same day (¶ 6). The detective who examined the phone was the only witness. The images were treated as contraband and were not placed in the record (¶ 6). (He was later charged with the sexual-abuse offense; under a global plea he pleaded guilty to failure to register, and the other charge was dismissed (¶ 6 n.1).)

The district court found non-compliance violations by a preponderance of the evidence, did not apply the Montana Incentives and Interventions Grid (MIIG), and revoked the sentence (¶ 7).

The Supreme Court affirmed:

1. No charge or conviction is required. Revocation rests on conduct, proven by a preponderance, not on a conviction. The 2017 legislation left that principle intact (¶ 13).
2. The evidence was sufficient. The detective gave detailed testimony about the images and the children’s apparent ages, reported Mr. Howard’s own admissions, and explained why the images differed from the artistic photographs his lawyer showed her. That testimony was enough under the preponderance standard (¶¶ 15–16).
3. One violation is enough. Having upheld the sexual-abuse violation, the Court did not reach the failure-to-register violation (¶ 17).

What did we argue, and how did the Court differ?

Our position on appeal.

• The statute requires more than an accusation. When the petition was filed and the hearing held, he had not been charged with either offense. The 2017 law uses the word “offense,” not “conduct.” We asked the Court to decide whether revocation for new criminal activity now requires a conviction or, at a minimum, sufficient evidence at the hearing that he committed a new offense (¶ 12).
• The evidence was too thin. Because the images were never introduced, the district court could not decide for itself whether they were pornographic or artistic. The only basis for the ruling was the detective’s personal assessment (¶ 14).

The Court’s view.

• The Court held that a revocation proceeding is civil and turns on conduct. Revocation can rest on conduct supporting a new offense even if charges are later dropped, and “[t]hese principles were not revised by the 2017 legislation.” Where the Legislature amended a statute but left words unchanged, those words keep their earlier meaning (¶ 13).
• On the evidence, the Court pointed to the detective’s experience and detailed testimony, Mr. Howard’s admissions, and the court’s opportunity to watch her compare his images with the artists’ portfolios. Because the Rules of Evidence do not apply at revocation hearings, the proceeding was “fundamentally fair” (¶ 16).
• The Court noted our point that the written judgment wrongly said he had admitted a violation. It did not rely on any admission (¶ 17 n.2).

No justice dissented.

What did M. Howard change in Montana law?

M. Howard answered a question the 2017 reforms raised. Once “a new criminal offense” became a category of non-compliance violation that allows direct revocation, did the State need a charge or conviction? The Court said no:

1. Conduct, not conviction. The State must prove by a preponderance that the person engaged in conduct constituting a new offense (¶ 13).
2. Old rule, new statute. Pre-2017 cases such as State v. Watts (1986) and State v. Roberts, 2010 MT 110, still govern (¶ 13).
3. Testimony can substitute for exhibits. Where the evidence is contraband, detailed testimony can carry the State’s burden (¶ 16).

Later decisions cite M. Howard both for this rule and for the standards of review. See Later decisions citing this case below.

Which Montana laws and rules apply?

• § 46-18-203, MCA: revocation of a suspended or deferred sentence, including the preponderance burden and the list of non-compliance violations. The section has been amended several times since the 2017 version the Court applied (including in 2023 and 2025), and the burden-of-proof provision the opinion cites as (6)(a) now appears in (7)(a).
• § 45-5-625, MCA: sexual abuse of children, the offense the State relied on (¶ 15)

When might M. Howard apply to you?

• A new accusation while on probation. A revocation petition can move forward before, or without, a new criminal charge.
• Charges dropped later. Dismissal of the new charge does not undo a revocation based on the same conduct (¶ 13).
• Evidence you never see. When evidence is contraband, the hearing may proceed on a witness’s description of it, so cross-examination of that witness matters.

Every revocation turns on its own record.

How difficult is a probation revocation appeal in Montana?

These appeals are difficult:

• Low burden for the State. “[T]he prosecution shall prove, by a preponderance of the evidence, that there has been a violation” (¶ 11, quoting § 46-18-203).
• Deferential review. The Supreme Court asks whether the decision was supported by a preponderance of the evidence and, if so, whether the court abused its discretion (¶ 9).
• No Rules of Evidence. Objections that would succeed at a criminal trial may not apply at a revocation hearing (¶ 16).
• Legal questions are reviewed fresh. Statutory interpretation is reviewed for correctness (¶ 8), which is why we asked the Court to read the 2017 amendments.

Related law and later decisions

Statutes and rules

• § 46-18-203, MCA: revocation of a suspended or deferred sentence. The Court applied the 2017 version. The Legislature has amended the section since, in 2023 and four times in 2025. The burden-of-proof sentence the opinion cites as (6)(a) now appears in (7)(a), and “a new criminal offense” remains in (11)(b)(i).
• § 45-5-625, MCA: sexual abuse of children. Amended since the conduct at issue, in 2019, 2023 and 2025.

Later decisions citing this case

• A.C.I. v. Elevated Property, 2021 MT 246 (cites ¶ 8, review of statutory interpretation)
• State v. E. Souther, 2022 MT 203 (cites ¶ 13)
• Bokma v. Olsen, 2025 MT 37 (cites ¶ 9, abuse of discretion)

The Boland Aarab Way

Boland Aarab PLLP represented Mr. Howard in this appeal, and the Court affirmed the revocation. We publish every published decision in our appeals, whatever the disposition, because the record shows how the Court reads a new statute, and because the question we raised needed an answer. Testing what a statute’s words actually require is the same work we do in our serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

Do I have to be convicted of a new crime before Montana can revoke my probation? No. The State must prove only by a preponderance of the evidence that you engaged in conduct constituting a new offense, even if the charges are later dismissed (M. Howard ¶ 13).

Do the Rules of Evidence apply at a Montana revocation hearing? No. The Montana Supreme Court has held that they do not apply, although the hearing must be fundamentally fair (M. Howard ¶ 16).

How many violations does it take to revoke a suspended sentence? One. “A single violation of the terms and conditions of a sentence is sufficient” (M. Howard ¶ 17, quoting State v. Cook).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court and the Ninth Circuit handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• State v. M. Howard, 2020 MT 279 (official opinion)
• § 46-18-203, MCA
• § 45-5-625, MCA

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.