No. 93-102
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
THE STATE OF MONTANA,
Respondent,
v.
DANIEL EARL BOURNE,
Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel Earl Bourne, Deer Lodge, Montana (pro se)
For Respondent:
Joseph P. Mazurek, Attorney General, Patricia 3.
Jordan, Assistant, Helena, Montana; Mike McGrath,
County Attorney, Carolyn Clemens, Deputy, Helena,
Montana
Submitted on Briefs: May 20, 1993
Decided: July 6, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the First Judicial district Court,
Lewis and Clark County, denying Daniel Bourns's motion for
correction of his sentence. We affirm.
The only question on appeal is whether the District Court
erred in denying Bourne's motion for correction of sentence.
Daniel E. Bourne (Bourne) pled guilty on December 16, 1988, to
the offense of Accountability (Deliberate Homicide), a felony, in
the shooting of John Ex Roberts. Bourne was sentenced to the
Montana State Prison for 40 years. At his sentencing, the judge
determined conditions of his parole. One of those conditions
involved restitution:
9. That the defendant shall be jointly and severally
liable with his convicted co-defendants for the payment
of the costs associated with the transportation and
burial of the defendant's victim, John Ex Roberts.
. . . .
12. That the defendant shall pay the financial
obligation imposed by this Judgment to the Restitution
Officer of this Court, Penney Sey, on a schedule which
the defendant shall devise with the Restitution Officer
as soon as oracticable followina his release from the
Montana State Prison if he is released. (Emphasis
added.)
Bourne moved the sentencing court on November 20, 1992 for a
correction of sentence pursuant to § 46-18-117, MCA. Bourne's
contention is that restitution was not intended to be a condition
of his parole and because he had no part of his sentence deferred
or suspended, restitution was improperly assessed pursuant to State
v. Mazurkiewicz (1990), 245 Mont 172, 799 P.2d 1066.
Mazurkiewicz is not controlling because the restitution in
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that case was determined as part of defendant's sentence. In the
instant case, Bourne's ordered restitution is clearly attendant to
his parole, if and when that occurs. The District Court concluded
that the controlling case was State v. Xlippenstein (1989), 239
Mont. 42, 778 P.2d 892. The most recent case on the same issue is
State v. Todd (Mont. 1993), - P.2d -, 50 St.Rep. 288. In
response to the argument made by Bourne in the present case, we
stated in Todd as follows:
We previously have upheld a district court's authority to
impose restitution as a condition of parole under Section
46-18-202, FICA, on almost identical facts. State v.
Klippenstein (1989), 239 Mont. 42, 778 P.2d 892. We were
careful to point out in Klipnenstein that the condition
of restitution would never apply if the defendant served
his full term of imprisonment: in other words, the total
sentence imposed could never exceed the statutory maximum
for the offense. Klipoenstein, 778 P.2d at 894.
Klipoenstein is directly on point and mandates the same
result in the case presently before us.
-I 50 St.Rep. 288.
Todd In &..&d we pointed out that our concern in
Mazurkiewicz was that the totality of defendant's sentence exceeded
the total authorized by law and that no statute authorized such
"stacking" of restitution on the maximum statutory term of
imprisonment. m further pointed out:
Here, as in Klippenstein, the ordered restitution is
constitutional; it becomes operative only in the event
the defendant secures early release from prison via
parole. Thus, it cannot result in a sentence exceeding
the statutory maximum. In the event of parole, similar
to a deferred or suspended sentence situation, the State
maintains considerable authority over the offender for
general rehabilitative and protective purposes, and the
restrictions or conditions authorized by Section 46-la-
202, MCA, lawfully can be imposed.
Todd
-t 50 St-Rep. at 289.
The specific wording in 5 46-18-202, MCA, is as follows:
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46-18-202. Additional restrictions on sentence.
(1) The district court may also impose any of the
following restrictions or conditions on the sentence
provided for in 46-18-201which it considers necessary to
obtain the objectives of rehabilitation and the
protection of society:
officLa) prohibition of the defendant's holding public
(b) prohibition of his owning or carrying a
dangerous weapon:
(c) restrictions on his freedom of association:
(d) restrictions on his freedom of movement;
(e) anv other limitation reasonablv related to the
objectives of rehabilitation and the protection of
societv. (Emphasis added.)
The dissent argues that restitution is not related to
defendant's rehabilitation and is not necessary for the protection
of society. We disagree with that analysis.
The correctional policy of this State has been and continues
to be punishment for crimes and rehabilitation of the convicted:
(2) The correctional policy of the state of Montana
is to protect society by preventing crime through
punishment and rehabilitation of the convicted. The
legislature finds that an individual is responsible for
and must be held accountable for his actions.
Corrections laws and nroorams must be implemented to
impress upon each individual his responsibility for
obevins the law. . . . Furthermore, it is the state's
policy that persons convicted of a crime shall be dealt
with in accordance with their individual characteristics,
circumstances, needs, and potentialities. (Emphasis
added.)
Section 46-18-101, MCA.
The district court judge is in the best position to determine
what can best help the individual defendant convicted of a crime.
The legislature acknowledged this by adding subsection (e) to 5 46-
18-202(1), MCA. If a particular defendant can best be
rehabilitated by requiring him to earn or otherwise obtain money
sufficient to compensate his victim rather than serving a full
4
prison term, the district court has been given authority to
institute this. Here, the District Court determined that if
defendant was paroled, he should then pay restitution to the
victim’s family as part of his parole conditions.
We conclude that restitution is an appropriate limitation
reasonably related to the objectives of rehabilitation and the
protection of society. We therefore hold that the District Court
did not err in denying Bourne's motion for correction of sentence.
Affirmed.
Justices
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Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
As this Court: pointed out in ~tatt?V.~aZUrkkWiCZ (1990), 245 Mont.
172, 177, 799 P.2d 1066, 1070:
Section 46-18-242, MCA, clearly states that restitution
may be a proper condition of a deferred, suspended or
partially suspended sentence. No statute allows resti-
tution requirements to be imposed in the absence of these
sentences.
Actually, restitution is authorized when sentences are deferred or
suspended by 9 46-18-201(1)(a) and (b), -MCA. Section 46-18-242,
.
MCA, simply describes the information which must be included in the
presentence investigation and report when the court believes
restitution is proper. However, this Court was correct in
Mazurkiewicz when it held that no sentencing statute allows
restitution as a condition to anything other than a deferred or
suspended sentence. In a series of decisions, this Court has
judicially created a penalty of restitution where none was provided
by the Legislature. First, in statev.~ippen.stein (1989), 239 Mont. 42,
778 P.2d 892, then in Statev. Todd (Mont. 1993), 849 P.2d 175, 50 St.
Rep. 288, and now in this case, this Court has held that
restitution, as a condition to parole, is actually authorized by
5 46-18-202, MCA. However, to find restitution in that statute is
creative, to say the least. Although I was a signator to the Todd
decision, I conclude after more careful review that that decision
was incorrect. Section 46-18-202, MCA, provides in relevant part
that:
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(1) The district court may also impose any of the
following restrictions or conditions on the sentence
provided for in 46-18-201which it considers necessary to
obtain the objectives of rehabilitation and the
protection of society:
(a) prohibition of the defendant's holding public
office;
(b) prohibition of his owning or carrying a
dangerous weapon;
Cc) restrictions on his freedom of association;
Cd) restrictions on his freedom of movement;
(e) any other limitation reasonably related to the
objectives of rehabilitation and the protection of
society.
Nothing in 5 46-18-202, MCA, refers to parole or to
restitution. First, 5 202 relates only to those sentences provided
for in § 201. Nowhere in § 201 is there any discussion of, or
provision for, parole. Second, the catch-all phrase in subsection
(l)(e), which is relied on by the majority, refers to limitations
related to the objectives of rehabilitation and protection of
society. Notwithstanding the majority's effort to make it so,
restitution is certainly not related to a defendant's rehabili-
tation and is not necessary for the protection of society.
Restitution is intended to compensate the victim of the defendant's
crime. Furthermore, the majority makes no effort to reconcile its
holding with the specific limitation in 5 202 that its provisions
are only applicable to those sentences provided for in 5 201.
Not only do this and previous decisions of this
§ 202 a penalty which was not intended, the addition
7
not even reasonably related to the objectives for which 5 202 was
enacted.
For these reasons, I dissent from the opinion of the majority.
I would reverse the District Court and amend Bourne's sentence by
deleting any reference to restitution.
3 s&ice
8
July 6, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Daniel Earl Bourne
700 Conley Lake Rd.
Deer Lodge, MT 59722
Hon. Joseph P. Mazurek, Attorney General
Patricia J. Jordan, Assistant
Justice Bldg.
Helena, MT 59620
Mike McGrath, County Attorney
Carolyn Clemens, Deputy
L & C County Courthouse
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA