No. DA 06-0323
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 187N
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STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID MICHAEL SMITH,
Defendant and Appellant.
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APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DC-91-9779,
The Honorable Edward P. McLean, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
David Michael Smith (pro se), Deer Lodge, Montana
For Respondent:
Hon. Mike McGrath, Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana
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Submitted on Briefs: July 3, 2007
Decided: August 6, 2007
Filed:
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Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Appellant David Michael Smith (Smith) appeals from an order of the Fourth
Judicial District Court, Missoula County, denying his motion for entry of order waiving
payment of restitution and for return of collected funds. Smith challenges the collection
of one-third of his prison earnings for his restitution obligations imposed in Cause
Number DC-91-9779, Missoula County, following his conviction for forgery. Although
Smith apparently has fulfilled his prison term related to his forgery conviction, he
remains in prison under a separate, unrelated sentence, and apparently continues to earn
income from which the Department of Corrections (DOC) garnishes one-third of his
wages pursuant to § 46-18-244(6)(a), MCA. We affirm.
¶3 Smith argues on appeal that the legislature’s amendments to § 46-18-241, MCA
(2003), as applied to him, violate the constitutional prohibition against the advocation of
ex post facto laws. The State counters that Smith failed to raise his claim before the
District Court and that restitution does not constitute punishment and thus cannot be the
proper subject of an ex post facto claim.
¶4 Smith next argues that the District Court erred in failing to hold a hearing as
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required by § 46-18-246, MCA, to determine whether imposition of restitution would
constitute a hardship for him. The State argues that no hearing is necessary in light of the
fact that Smith did not properly request a waiver of modification of his restitution
obligations and his petition did not implicate the victim’s right to restitution. Thus, the
State argues that any evidentiary inquiries by the court into Smith’s “facially groundless
motion” would be redundant and would controvert the well established legal maximum
that “the law neither does nor requires idle acts.” In re Marriage of Pfeifer, 1998 MT
228, ¶ 18, 291 Mont. 23, ¶ 18, 965 P.2d 895, ¶ 18.
¶5 We review a criminal sentence for legality only. In other words, we review
whether the sentence falls within statutory parameters. State v. Denham, 2005 MT 26, ¶
5, 326 Mont. 24, ¶ 5, 107 P.3d 1263, ¶ 5. A question of statutory interpretation presents a
question of law that we review for correctness. Denham, ¶ 5.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, that provide for memorandum
opinions. It is manifest on the face of the briefs and the record before us that settled
Montana law clearly controls the legal issues and that the District Court correctly
interpreted the law.
¶7 We affirm.
/S/ BRIAN MORRIS
We Concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE
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