NO. 92~627
IN THE SUPREME COURT 0F THE STATE OF MONTANA
1993
STATE OF MONTANA,
P1aintiff and Respondent,
“V5B
KERMIT CALVIN TODD,
Defendant and Appell&nt.
APPEAL FROM: District C0urt of the First Judicial District,
In and for the County of L@wis and C1ark,
The H0norab1e D0r0thy McCarter, Judge presidinq.
COUNSEL OF RECORD:
F0r Appe11ant:
Kermit Calvin Todd, Deer L0dqe, MOntana, Pr0 Se
F0r Resp0ndent:
H0n. J05eph P. Mazurek, Attorney Gen@ral; Micheal
S. We1len3tein, Assistant Att0rney General, Helena,
Montana
Submitted on Briefs: March 4, 1993
]jegide§; I`“E&J’_`Ch leg 1993
Clerk
Justioe Karla M. Gray delivered the Opinion of the Court.
Kermit Calvin Todd appeals from. an order of the First
Judicial District Court, Lewis and Clark County, denying his Motion
for Correction of Sentence. we affirm.
Todd pleaded guilty of the offense of issuing bad checks
(common scheme), a felony, as defined in § 45~6-3l6, MCA.
Followinq entry of the p1ea, Todd was sentenced to a term of ten
years in the Montana State Prison, the sentence to ron
consecutively to a sentence imposed in the Fourth Judicial District
Court and concurrently with a sentence imposed by the Eleventh
Judicial District Court. Payment of restitution was imposed as a
condition of Todd*s parole.
Todd filed a Motion for Correction of Sentence, challenging
the restitution provision contained in his sentence; he alleged
that the District Court did not have jurisdiction to impose
restitution other than as a condition of a deferred or suspended
sentence. The court denied his motion.
The issue before us is whether the District Court erred in
ordering restitution as a condition of parole.
Subsections (a) through (g) of § 46-lS»20l(l), MCA, set forth
the sentencing options available to a district court when a person
has been found guilty of an offense upon a verdict or plea. The
options range from deferred imposition of sentence, with or without
restrictions or conditions such as restitution, through commitment
to a correctional institution as provided by law, to a combination
of the authorized options. ;§.
fn addition, § 46“18~2G2, MCA, authorizes the district court
to impose “restrictions or conditions on the sentence provided for
in 46~18»20l which it considers necessary to obtain the objectives
of rehabilitation and the protection of society." Subsections (a)
through (d) of § 46~l8~202(1), MCA, list specifically authorized
conditions, while subsection (e) enables a court to impose “any
other limitation reasonably related to the objectives of
rehabilitation and the protection of society."
Here, the District Court first sentenced Todd to ten years'
imprisonment in the Montana State Prison, the maximum prison
sentence available under § 45-6-316, MCA, pursuant to § 46-l8-
20l(l)(e), MCA. The court then ordered restitution as a condition
of Todd's paroie, in the event he was paroled in advance of serving
the entirety of his prison sentence. Whi1e the court did not so
state, it is clear that the restitution was ordered pursuant to the
court's authority, under § 46-18-202{l)(e), MCA, to impose any
limitation reasonably related to the objectives of rehahilitation.
The restitution was not imposed pursuant to § 46~l8~20l, MCA.
we previously have upheld a district court‘s authority to
impose restitution as a condition of parole under § 46-18-202, MCA,
on almost identical facts. State v. Klippenstein (l989), 239 Mont.
42, ??8 P.2d 892. we were careful to point out in Klippenstein
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. KliQQenstein, 778 P.2d at 394. KliQgenstein is
directly on point and mandates the same result in the case
presently before us.
Todd argues that our decision in State v. Mazurkiewicz (1990),
245 Mont. 172, 799 P.2d 1G66, controis. He asserts that, pursuant
to Mazurkiewioz, restitution can be ordered only as part of a
deferred or suspended sentence under § 46-18-20l(l)(a) or (b), MCA.
He overreads our decision.
In.Mazurkiewicz, the district court sentenced the defendant to
the Montana State Prison for the maximum statutory term and ordered
the payment of restitution upon his release. ?99 P.2d at 1068-70.
The ordered restitution was part of the defendant*s actual
sentenoe, not a condition of parole. we concluded on those facts
that while Montana law permits restitution as a condition of a
deferred, suspended or partially suspended sentenoe, nothing in the
statutes allows restitution requirements to be imposed in the
absence of those sentences. Mazurkiewicz, 799 P.2d at lO?O. Our
concern in Mazurkiewicz was that the totality of the defendant's
sentence exceeded that authorized by law. No statute authorized
the "stackinq" of restitution onto the maximum statutory term of
inprisonment. In other words, restitution was not statutorily
available as ah independent and cumulative sentencing option.
Here, as in Kli enstein, the ordered restitution is
conditiona1; 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. la the event
of perole, eimi§er to a deferred or suspended sentence Situation,
the State maintains considerable authority over the offender for
general rehabilitative and protective purposes, en§ the
restrictions or conditions authorized by § 46-18»2G2, KCA, lawfully
can be impoSed.
We hold that the DiStriet Court did not err in imposing
restitution as a condition of Todd's par0le.
AFFIRMED.
W€ COI¥CU}'_'Z
March 18, 1993
CERTIP¥CA'I`E OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the tbi!c)wing
narned:
Kermit Calvin Todd
700 Conley Lake Rd.
Deer Lodge, MT 59722
Hon. joseph P. Mazurek, Attorney General
Micheal S. Wefienstein, A_ssist:ant
justice B]dg.
Helena, MT 59620
Mike M¢Grath, Coun€y Attorney
§_,isa Leckie, Deputy
228 Brc)adway
Hefena, MT 59601
1313 SMI'§H
CLI~:RK oF me SUPREME COHRT
STATEMOF QNTANA
BY; .
Deputy §