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.

Suspended sentence revocation error

2007 MT 328
STATE OF MONTANA,
v.
THOMAS E. OIE
Whether the District Court erred in sentencing Oie to serve four years at MSP after revoking his suspended sentence.
§ 61-8-731(5), MCA, governs the imposition of sentence upon the revocation of Oie’s suspended sentence for felony DUI and limits the District Court to either continuing the period of probation or requiring Oie “to serve the remainder of the probation sentence” (emphasis added).
Accordingly, we hold that the District Court erred in sentencing Oie to serve four years at MSP after revoking his suspended sentence and we remand to the District Court for resentencing consistent with this Opinion.
Reversed and Remanded.
/

No explanation for harsher sentence

2003 MT 253
STATE OF MONTANA,v.
TIMOTHY T. HALL,

The issues on appeal are as follows:
1. Did the District Court err in denying Hall’s pre-trial motion to suppress evidence?
2. Did the District Court err in denying Hall’s proposed jury instructions?
3. Did the District Court err in denying Hall’s motion for a directed verdict on the
close of evidence? Was there sufficient evidence to support the convictions for theft?
4. Did the District Court violate Hall’s due process rights by punishing him for going
to trial, when the sentence given was harsher than that offered before trial?
We affirm the convictions and remand for re-sentencing.
Although the District Court noted that Hall posed a substantial danger to the public
if he was not incarcerated for a substantial period of time, it did not explain why the sentence
was more onerous than the sentence offered before trial.
When the District Court failed to specifically justify having the eleven-year sentence run consecutively rather than
concurrently with the forgery sentence, it failed to satisfy the Baldwin standard which requires an explanation for imposing a sentence more harsh than that offered in plea negotiations.
The convictions are affirmed, and the matter is remanded for re-sentencing.

No contempt for failing to pay fines

1979
No. 14786
THE STATE OF MONTANA, v.
JAMES LENIHAN,
1. Is the issue raised by defendant properly reviewable
on appeal?
2. Did the District Court err in ordering an indigent
defendant to reimburse the county for attorney fees as part
of a condition of deferred imposition of sentence
"No convicted person may be held in contempt for
failure to repay if he shows that his default was not attributable
to an intentional refusal to obey the order of the
court or to a failure on his part to make a good faith
effort to make the payment." Fuller v. Oregon, 40 L.Ed.2d at
650.

This Court is aware of the financial burden placed on the counties and the State by the criminal justice system.
We do not disagree with the proposition of reimbursement to the State. On the contrary, we applaud the trial judge for his efforts. However, we feel that recoupment provisions should be made to operate with considerations given to ability to repay, and in the event of default, the penalty should be a form of civil liability rather than possible criminal sanctions. Recoupment is not a magic word, and it may be possible and desirable to perfect a system outside
that kind of legislation.
The judgment of the deferred imposition of sentence is remanded to the District Court with instructions to vacate the repayment of attorney fees condition complained of and enter its order accordingly.

Victim released unharmed

2002 MT 122
STATE OF MONTANA,v.
DAVID WAYNE NELSON
1. Whether the District Court abused its discretion when it restricted the scope of Nelson's cross-examination of his accomplice;
2. Whether the District Court's instruction to the jury on "fabrication by the defendant" prejudiced Nelson; and
3. Whether the District Court erred when it sentenced Nelson to the maximum sentence for Aggravated Kidnaping, even though the evidence established the victim had been released in a safe location without serious injury.
The District Court sentenced Nelson to twenty years with ten years suspended, even though both victims testified at trial that Shari was released in her home before Nelson and Fred left. Moreover, during sentencing, the District Court noted it was "mindful that [Nelson] terminated [his] involvement in these crimes before someone was seriously physically injured," and that neither victim was "seriously injured in a physical way."
The State concedes that under the facts of this case, the District Court erred in sentencing Nelson to more than the ten year maximum. We therefore remand this matter to the District Court for resentencing under § 45-5-303(2), MCA. Upon remand, the District Court may also address any inconsistency between the written and oral judgments as noted in ¶ 8 of this Opinion.
Affirmed in part, and remanded for resentencing.