Restitution error

2003 MT 123
STATE OF MONTANA,v.
JACK WAYNE FLANAGAN,
We address the following issues:
1. Did the District Court err in making findings based on a presentence investigation
report not offered or admitted as an exhibit?
2. Did the District Court err by giving inadequate reasons for imposing the 10-year
suspended sentence?
3. Did the District Court err in imposing probation conditions with no nexus to the
offense committed?
4. Did the District Court err in imposing restitution as a condition of Flanagan's
suspended sentence?
5. Does the presentence investigation report provide an adequate basis for the
determination of--and did the District Court err in imposing restitution without specifying-- the timing of Flanagan's restitution payments?
6. Did the District Court err in ordering that all of Flanagan's assets in the marital estate and probate estate after his death be used to pay restitution?
With regard to the portion of the sentencing order which requires that any of Flanagan's assets of the marital
estate be used for restitution, the District Court did not evaluate what assets are necessary
for Flanagan to sustain a living; nor did it evaluate whether a joint tenancy in a family home could be lawfully severed in order to satisfy a restitution order. Moreover, in an ordinary probate proceeding, a creditor of the estate may submit a claim pursuant to § 72-3-804, MCA. We are aware of no authority for a claim for restitution to take precedence over the claims of other creditors of an estate.
On remand, the District Court is directed to reconsider and clarify this condition in conjunction with our remand on issue five.