Illegal Sentence, restitution and recoupment cannot stand

207 Mont. 483, 676 P.2d 168
Supreme Court of Montana.
STATE of Montana, Plaintiff and Respondent,
v.
Stephen E. FARRELL, Defendant and Appellant.
No. 82-391.
Submitted Sept. 29, 1983.
Decided Jan. 17, 1984.
Defendant was convicted in the District Court of the First Judicial District, in and for the County of Lewis and Clark, Gordon R. Bennett, J., of theft of public assistance funds and sentenced to ten years in prison, service of that term being suspended on condition that he make restitution of funds illegally obtained and penalty thereon, that he reimburse court for expenses incurred by his attorney and that he undergo treatment for his alcohol problem, and defendant appealed. The Supreme Court, Gulbrandson, J., held that: (1) there was substantial credible evidence of false statements made by defendant to obtain welfare assistance; (2) jury was properly instructed on elements of theft; (3) instruction on lesser included offense of misdemeanor theft was properly refused; (4) judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated by suspended ten-year sentence.
Affirmed in part and vacated and remanded in part.
Due process requires only that
indigency or poverty not be used as the touchstone for
imposing the maximum allowable punishment.