Charging-Statute Controls: Montana Bars Retroactive Prosecution Under Post‑2007 SVORA When the Information Pleads Only the Current Act

1. Introduction

In State v. Pratt, 2026 MT 58, the Montana Supreme Court considered whether the State could prosecute Daniel Santos Pratt for felony failure to register as a sexual offender when Pratt’s underlying qualifying convictions (Oregon, 2001) long predated Montana’s post‑2007 amendments to the Sexual or Violent Offender Registration Act (“SVORA”). Pratt moved to Montana in 2016, registered for years, but in 2023 failed to complete address verification and did not appear to update his registration after leaving a voicemail with a new address.

The District Court dismissed the prosecution on constitutional grounds, concluding that applying the current SVORA to Pratt violated the Ex Post Facto Clause of the Montana Constitution and Pratt’s rights under the Restoration of Rights Clause. The State appealed.

The Supreme Court narrowed the dispute to a decisive threshold issue: not whether some earlier, non-punitive version of SVORA could apply, but whether the State, in this case, actually charged such a version.

2. Summary of the Opinion

The Court affirmed dismissal. It held that the State prosecuted Pratt under the 2023 SVORA provisions cited in the charging documents, and that post‑2007 SVORA—under State v. Hinman—is punitive and therefore cannot be applied retroactively to defendants whose convictions predate its enactment. Because Pratt’s convictions predated the 2007 amendments and the State did not amend the Information to charge earlier SVORA versions, the prosecution was constitutionally barred as pleaded.

Having resolved the case on ex post facto grounds, the Court declined to reach the Restoration of Rights issue, invoking the principle of avoiding unnecessary constitutional adjudication.

3. Analysis

A. Precedents Cited

1) State v. Hinman

State v. Hinman, 2023 MT 116, supplied the controlling constitutional rule. Hinman held that “the SVORA structure in place since 2007 is punitive and therefore cannot apply retroactively under the ex post facto clause.” The Pratt Court treated Hinman as establishing two key constraints:

  • Totality-of-the-scheme review: Hinman evaluated post‑2007 SVORA “in totality,” rejecting a provision-by-provision approach that would preserve prosecution by isolating non-punitive subsections.
  • Remedial consequence: When the State prosecutes based on an unconstitutional retroactive application, dismissal is “the proper remedy.” (Pratt cites Hinman for this remedial point.)

Pratt is, in essence, a charging-and-remedy application of Hinman: once the Court identified that the State pleaded the current (post‑2007) SVORA, the ex post facto violation was decisive.

2) State v. Mount

State v. Mount, 2003 MT 275, upheld earlier iterations of Montana’s registration laws as non-punitive for ex post facto purposes. In Pratt, Mount is relevant primarily as a contrast class: it shows that not every SVORA version is necessarily punitive. The majority referenced Mount to note that Hinman distinguished post‑2007 SVORA from earlier versions previously upheld.

Importantly, the majority did not decide whether Mount-controlled versions could apply to Pratt; it held only that the State did not charge those versions.

3) State v. Clark

State v. Clark, 2025 MT 87, is cited for the proposition that, in appropriate cases, the State may prosecute under the 2005 SVORA framework (i.e., a pre‑2007 version not condemned as punitive in Hinman). In Pratt, Clark functions as an “off-ramp” the State could have taken—but did not—because it never amended its charging documents to rely on those earlier provisions.

4) State v. Mosby

State v. Mosby, 2022 MT 5, underpinned the Court’s procedural holding that courts may not uphold or “save” a prosecution by post-hoc reliance on statutes not pleaded. The Pratt majority used Mosby to emphasize that charging defects must be corrected through proper procedural mechanisms (e.g., amendment), not appellate reframing.

5) State v. Torgeson; State v. Lamoureux; State v. Jensen

These cases supply standard review and interpretive baselines:

  • State v. Torgeson, 2008 MT 295: de novo review of a motion to dismiss.
  • State v. Lamoureux, 2021 MT 94: correctness review of constitutional questions.
  • State v. Jensen, 2020 MT 309: presumption of constitutionality and challenger’s burden.

While not outcome-determinative, they frame why the Court could decide the issue as a matter of law based on the charging documents and binding constitutional precedent (Hinman).

6) Wagner v. State (and, in dissent, State v. Azure)

Wagner v. State, 2004 MT 31, is cited by the majority for the doctrine of constitutional avoidance—supporting its refusal to reach the Restoration of Rights argument once dismissal was required on ex post facto grounds.

In dissent, the Chief Justice additionally invoked Wagner and State v. Azure, 2008 MT 211, to argue that registration does not violate restoration of civil or political rights—highlighting a live constitutional debate the majority deliberately left open.

B. Legal Reasoning

1) The “statute actually charged” is dispositive

The majority’s core move is to make charging selection—not abstract statutory possibility—the hinge of the case. The Court held the relevant question is: Which SVORA version did the State plead?

The record showed that the State’s application for leave, affidavit, and Information invoked §§ 46-23-504(1) and -507, MCA (2023), and described obligations (notably in-person requirements) associated with the current SVORA scheme. Under § 46-11-401(1), MCA, a criminal charge must state the statute violated. Thus, the State’s explicit reliance on the 2023 statute defined the constitutional analysis.

2) Retroactivity + punitive effect = ex post facto bar

With the statute fixed as the 2023 (post‑2007) SVORA, the remainder followed from Hinman: because Pratt’s convictions predated 2007, applying the post‑2007 scheme to him is retroactive; and because Hinman deems that scheme punitive, retroactive application violates Article II, Section 31 of the Montana Constitution.

3) Why “could have charged 1999/2005” does not matter

The State argued that Pratt’s conduct would also violate pre‑2007 requirements and that those could be enforceable under State v. Mount and State v. Clark. The Court did not reject that as a general proposition; instead, it held the argument is irrelevant to this prosecution because:

  • the State did not plead those earlier statutory frameworks, and
  • the Information was never amended to do so.

On the majority’s view, an appellate court cannot sustain a prosecution by substituting a different statutory basis than the one the prosecutor chose and pleaded—both as a matter of notice/fairness and as a matter of criminal pleading regularity (reinforced by State v. Mosby).

4) Remedy: dismissal

The majority treated dismissal as the correct remedy when the State has chosen an unconstitutional statutory application as its charging basis, citing Hinman. Notably, the Court’s conclusion is framed narrowly: it affirmed dismissal of this prosecution as charged and expressly left open whether the State could bring a new prosecution under a different SVORA version.

5) The dissent’s competing framework: “incorporation” and “excision”

The dissent characterized the majority as overly formalistic: because the registration violation occurred in 2023, the State necessarily cited the current codification. But, the dissent argued, the duty being enforced could still be an earlier, constitutionally applicable duty (e.g., 1999 or 2005 address verification and 10‑day change-of-address reporting), merely carried forward in the modern code.

The dissent would have reversed, reinstated the Information, and—if any allegations depended on post‑2007 requirements—allowed the district court to “excise” those portions or allow amendment. The dissent also relied on Hinman’s acknowledgment of severability (2007 Mont. Laws ch. 483, § 29) to support the possibility of trimming invalid applications rather than dismissing outright.

The majority, however, did not adopt an excision approach; it treated the State’s pleaded statutory basis as definitive and the constitutional flaw as fatal to the prosecution in its current form.

C. Impact

  • Charging precision becomes outcome-determinative in SVORA cases: Prosecutors must make an explicit, defensible choice about which SVORA version applies to a defendant with a pre‑2007 conviction and plead accordingly. Reliance on the current code alone can be fatal where Hinman’s ex post facto bar is triggered.
  • Limits on appellate “salvage” arguments: Pratt underscores that appellate courts will not uphold a conviction or prosecution based on alternative statutory frameworks not charged, even if the defendant’s conduct might violate them.
  • Procedural incentives to amend early: The decision increases the practical importance of timely amendment of charging documents when a Hinman issue emerges, rather than attempting to defend the case later by arguing “the facts fit an earlier statute.”
  • Continued uncertainty on restoration-of-rights theories: Because the majority avoided the Restoration of Rights issue, litigants will continue to raise Article II, Section 28(2) arguments in future cases; Pratt neither validates nor forecloses them.

4. Complex Concepts Simplified

Ex Post Facto (Mont. Const. art. II, § 31)

An ex post facto law (or application) effectively increases punishment after the fact—by imposing a punitive legal consequence that did not apply when the crime was committed. In SVORA litigation, the key question is often whether the registration scheme is merely regulatory (allowed retroactively) or punitive (not allowed retroactively). State v. Hinman answers that question for post‑2007 SVORA: it is punitive in effect when assessed “in totality.”

Retroactive “application” vs. present-day enforcement

SVORA duties are enforced in the present (e.g., a failure to update in 2023), but the constitutional problem arises when those present-day duties are imposed because of a conviction that occurred before the punitive scheme existed. Pratt holds that if the State pleads the post‑2007 scheme against a pre‑2007 defendant, the application is retroactive and unconstitutional under Hinman.

Charging document (Information) and statutory notice

Criminal procedure requires the State to identify the statute violated so the defendant has clear notice of what legal duties are alleged. Pratt treats this not as a technicality but as a constraint on what a court may uphold: a prosecution cannot be affirmed based on a different statutory theory than the one charged.

Constitutional avoidance

When a case can be resolved on one ground, courts generally avoid deciding additional constitutional questions unnecessarily. Citing Wagner v. State, the Pratt majority refused to decide the Restoration of Rights issue after concluding the ex post facto violation required dismissal.

5. Conclusion

State v. Pratt establishes and reinforces a practical rule with constitutional consequences: the SVORA version actually pleaded controls. Where the State charges a pre‑2007 offender under the post‑2007 (and thus punitive) SVORA scheme, the prosecution is an unconstitutional retroactive application under State v. Hinman and must be dismissed as charged. The Court’s decision tightens the link between constitutional SVORA doctrine and charging practice, while leaving open whether the State may file a new prosecution grounded expressly in an earlier, constitutionally applicable SVORA framework.