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.

Alchohol, casino restriction error, and restitution error

2007 MT 323
STATE OF MONTANA,v.
PENELOPE CELANDINA YOUNG,
Did the District Court impose an illegal sentence by including conditions regarding alcohol and casinos and by ordering a mental health evaluation?
We conclude that the District Court erred in imposing the alcohol and casino restrictions. We remand to the District Court to strike the alcohol and casino restrictions from Young’s sentence.

judgment suspending sentence on condition of restitution and recoupment could not stand; and (5) defendant's due process rights may have been violated

207 Mont. 483, 676 P.2d 168
Supreme Court of Montana.
STATE of Montana,
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.

Bailey error, no restitution to dismissed counts

2000 MT 100 check
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in
its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.

No restitution for dismissed count

2000 MT 100
STATE OF MONTANA,v.
CHARLES ROCKWOOD HORTON
1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.
2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.
3. Whether the District Court erred when it failed to credit Horton with time served in its written judgment after having allowed the credit in its oral pronouncement of sentence.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution

we hold that the District Court exceeded its statutory authority by

2001 MT 101
STATE OF MONTANA,v.
ROBERT SETTERS,

The issues on appeal are:
1. Whether the District Court erred in requiring Setters to pay restitution.
2. Whether the District Court properly considered Setters' ability to pay when it
established the amount of restitution.
3. Whether the District Court erred in assessing a penalty in addition to restitution.
Section 46-18-202(1)(e), MCA (1997), provides that a sentencing court may impose
any condition or restriction "reasonably related to the objectives of rehabilitation and the protection of the victim and society." However, in interpreting that provision in State v. Ommundson, 1999 MT 16, , 293 Mont. 133, 974 P.2d 620, we held that a sentencing limitation or condition must have some correlation or connection to the
underlying offense for which the defendant is being sentenced. There is no suchcorrelation or connection in this case between Setters' conviction on the tampering charge and ordering him to pay restitution to DPHHS for his alleged theft of public assistance benefits. Consequently, the District Court's order did not meet the statutory requirements for the imposition of restitution on a suspended sentence.
Accordingly, we hold that the District Court exceeded its statutory authority by
ordering Setters to pay restitution for a dismissed count as a condition of his sentence.
Hence, we reverse the determination of the District Court as to restitution and we order that portion of Setters' sentence vacated.

Restitution winner

9:33 AM 5/9/2008
2008 MT 162
STATE OF MONTANA,v.
BENJAMIN BREEDING,
The sole issue on appeal is whether the District Court lacked authority to impose a restitution obligation on Breeding for the body damage to the Jeep
we hold that the District Court lacked authority to require Breeding to pay restitution for damage to the Jeep which did not occur as a result of his offense of theft. Accordingly, the restitution obligation on Breeding’s sentence to cover the cost of the damage which occurred when Seghetti drove Smith’s vehicle into a haystack ($5,673.53) is illegal and must be reversed.

Postponed restitution imposition improper

2002 MT 258
ROGER LARUE GILBERT,v.
STATE OF MONTANA,
1. Did the District Court err when it retained jurisdiction to revisit Gilbert’s parole restriction?
2. Did the District Court err when it postponed the consideration and imposition of restitution?
[W]e conclude that the District Court erred when it postponed consideration of restitution.

erred in failing to specify amount of restitution

2007 MT 230
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GILBERT BRUCE MEYERS,
Did Meyers’s trial counsel render ineffective assistance of counsel by failing to object to or seek exclusion of testimony regarding alleged prior bad acts?
(2) Did the District Court impose an illegal sentence by:
a. Restricting Meyers’s ability to reside in Broadwater County?
b. Requiring Meyers to pay restitution “in an amount to remain open” until the victims receive any help they need?
The District Court erred by failing to specify the total amount of restitution Meyers must pay to the victims