No. 13872
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
THE STATE OF PdONTANA,
Plaintiff and Respondent,
-VS-
MERLIN T. BABBIT,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
Smith, Connor, Van Valkenburg & Larrivee, Missoula,
Montana
Noel Larrivee argued, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Brenda J. Gilmer argued and Marc F. Raciot argued,
Attorney General's dffice, Helena, Montana
Robert L. Deschamps, I11 argued, County Attorney,
Missoula, Montana
Submitted: November 29, 1977
Decided : FEB 1- 1a
9
M r . J u s t i c e Gene B . 3 a l y d e l i v e r e d the Opinion of t h e Court.
Defendant Merlin T . Babbit , a nonindigent a d u l t , appeals
from a f i n a l judgment of conviction and o r d e r d e f e r r i n g imposi-
t i o n of sentence and e s t a b l i s h i n g terms and conditions of pro-
bation.
On February 1 7 , 1977, t h e Deputy County Attorney of
Missoula County f i l e d an Information i n t h e D i s t r i c t Court,
Missoula County, charging defendant with t h e crime of c r i m i n a l
possession of dangerous drugs, weighing more than one gram, i n
v i o l a t i o n of s e c t i o n 54-133, R.C.M. 1947. On March 3 , 1977,
arraignment proceedings were conducted i n t h e D i s t r i c t Court.
Defendant entered a plea of g u i l t y t o t h e crime a s charged i n
t h e Information. A presentence i n v e s t i g a t i o n r e p o r t was
ordered by t h e D i s t r i c t Court and t h e time f o r pronouncement
of sentence was s e t f o r March 1 7 , 1977. On t h a t d a t e t h e
D i s t r i c t Court deferred t h e imposition of sentence by t h i s
order:
"The Court ORDERS t h a t t h e imposition of sentence
be deferred f o r a period of two (2) y e a r s , and t h a t
during t h i s period of time t h e Defendant s h a l l comply
with t h e terms and conditions f u r t h e r s e t f o r t h i n
t h i s Order.
"The terms and conditions of probation a r e :
"1. That t h i s Court r e t a i n j u r i s d i c t i o n .
"2. That t h e Defendant s h a l l make payment
of Two Hundred Dollars ($200.00), t o t h e County
of Missoula, through t h e Clerk of D i s t r i c t Court.
"3. That t h e Defendant must obey i n s t r u c t i o n s
and comply with a l l d i r e c t i o n s of t h e Department
of I n s t i t u t i o n s , Division of Adult Parole and
Probation of t h e S t a t e of Montana.
"4. That t h e Defendant s h a l l submit himself,
h i s residence and v e h i c l e t o search a t any time by
lawful a u t h o r i t i e s , without a search warrant.
"5. That t h e Defendant s h a l l o b t a i n a l c o h o l i c
counseling deemed necessary by h i s Probation O f f i c e r .
"6. That t h e Defendant s h a l l n o t v i o l a t e t h e law.
7 That upon v i o l a t i o n of any of t h e conditions
above, Defendant s h a l l be brought before t h i s Court
f o r imposition of sentence."
A t t h e time t h e D i s t r i c t Court announced t h e terms and
conditions of probation, defendant made a timely and s p e c i f i c
o b j e c t i o n t o t h e condition of probation r e q u i r i n g defendant
make payment of $200 t o t h e County of Missoula through t h e
c l e r k of t h e D i s t r i c t Court.
The s o l e i s s u e before t h i s Court on appeal i s whether
t h e D i s t r i c t Court may impose a payment of $200, payable t o
Missoula County, a s a condition of probation a f t e r defendant
plead g u i l t y t o the crime of criminal possession of dangerous
drugs, a felony punishable by imprisonment i n t h e s t a t e p r i s o n
n o t t o exceed 5 y e a r s , and t h e D i s t r i c t Court deferred imposi-
t i o n of sentence.
I n Montana deferred imposition of sentence i s c o n t r o l l e d
by Montana's sentencing s t a t u t e , s e c t i o n 95-2206, R.C.M. 1947,
(subsequently amended i n Section 36, Chap. 184; Section 1, Chap.
436; Section 1, Chap. 580; and Section 12, Chap. 584, Session
Laws 1977). I t provided i n r e l e v a n t p a r t :
"95-2206 --'Sentence. Whenever any person has been
found g u i l t y of a crime.. o r offense upon a v e r d i c t o r a
plea of g u i l t y t h e c o u r t may:
"(1) Defer imposition of sentence f o r a period n o t
t o exceed one (1) year f o r any misdemeanor; f o r a
period n o t t o exceed t h r e e ( 3 ) years f o r any felony.
The sentencing judge may impose upon t h e defendant
any reasonable r e s t r i c t i o n s o r conditions during t h e
period of t h e d e f e r r e d imposition. Such reasonable
r e s t r i c t i o n s o r conditions may include:
"( a ) j a i l base r e l e a s e ;
"(b) j a i l time n o t t o exceed n i n e t y (90) days;
"(c) conditions for probation;
" (d) restitution;
"e
() any other reasonable conditions deemed
necessary for rehabilitation or for the protection
of society;
"f
() any combination of the above."
Thus the issue becomes whether the payment of $200 to the
County of Missoula is a reasonable condition of probation
imposed for the objective of rehabilitation and the protection
of society.
This Court's reported cases which speak to the validity
of conditions of probation subsequent to entry of a guilty plea
and deferred imposition of sentence haw been limited almost
entirely to defendants who have challenged the District Court's
revocation of deferred imposition of sentence. Petition of Dunn,
(1971), 158 Mont. 73, 488 P.2d 902; State v. Thorsness, (1974),
165 Mont. 321, 528 P.2d 692; State v. Emmett, (1976), Mont .
, 557 P.2d 289, 33 St.Rep. 1172. The cases in Montana
specifically challenging conditions of probation imposed after
entry of a plea of guilty and deferred imposition of sentence
have attacked the imposition of jail time as a condition of
probation. State v. Openshaw, (1977), - .
Mont -
3 565 P.2d
319, 34 St.Rep. 516; State ex rel. Woodbury v. District Court,
(1972), 159 Mont. 128, 132, 495 P.2d 1119; State v. Drew, (1971),
158 Mont. 214, 217, 490 P.2d 230.
Our holding in these cases was that "in all cases when
there are no special sentencing provisions the wide discretion
of section 95-2206, R.C.M. 1947, applies." State ex rel. Woodbury,
supra. "The court can impose conditions of probation during
this time of deferment which are not in contradiction to a
stay of sentence or deferred sentence." State v. Drew, supra.
However, this Court has not been called upon to consider
the validity of a condition of probation requiring the payment
of money t o a court a f t e r e n t r y of a plea of g u i l t y and
deferred imposition of sentence i n accord with s e c t i o n 95-2206.
Other j u r i s d i c t i o n s have considered t h e i s s u e r a i s e d b y
defendant with divergent conclusions. The c o u r t s of Arizona
have taken t h e s t a n c e t h a t i n t h e absence of s p e c i f i c s t a t u t o r y
language, where defendant has plead g u i l t y t o a felony t o which
no f i n e i s prescribed and imposition of sentence i s suspended, i t
is improper t o impose a f i n e a s a condition of probation. State
v. P i t t s , (1976), 26 Ariz.App. 390, 548 P.2d 1202, 1203.
C a l i f o r n i a c o u r t s on t h e o t h e r hand, i n upholding t h e
imposition of f i n e s a s a condition of probation, have held a
condition of probation w i l l n o t be i n v a l i d u n l e s s i t "(1) has
no r e l a t i o n s h i p t o t h e crime of which t h e of fender was con-
v i c t e d , (2) r e l a t e s t o conduct which i s not i n i t s e l f c r i m i n a l ,
and (3) r e q u i r e s o r f o r b i d s conduct which i s n o t reasonably
related to future criminality * * *. I" People v. Lent, (1975),
124 Cal.Rptr. 905,908, 15 C.A.3d 481, 541 P.2d 545,548.
Under s t a t u t o r y provisions much t h e same a s ont tan as,
t h e C a l i f o r n i a c o u r t seems t o allow a f i n e under our f a c t s .
However, t h e Lent case found a r e l a t i o n s h i p t o t h e crime of
which defendant was convicted [ t h e f t ] b u t allowed, a s a condi-
t i o n of probation, a f i n e i n a l a r g e r amount than r e s t i t u t i o n ,
which included t h e amount of a Count of .which defendant was
acquitted.
The Court of Appeals of Oregon, i n t e r p r e t i n g Oregon s t a t u t e s
i n S t a t e v. Culbertson, 1977, 29 0r.App. 363, 563 P.2d 1224,
1229, h e l d :
"* ** t h e standard a g a i n s t which t h e v a l i d i t y of
conditions [of probation] imposed by t h e c o u r t o r
the probation o f f i c e r i s t o be measured i s whether
they bear a reasonable r e l a t i o n s h i p t o t h e reforma-
t i o n of t h e offender o r t h e p r o t e c t i o n of t h e public."
(Emphasis supplied.)
The United S t a t e s Court of Appeals, Second C i r c u i t ,
r e c e n t l y considered t h e s u b j e c t of t h e v a l i d i t y of c o n d i t i o n s
of probation i n United S t a t e s v. P a s t o r e , (2nd C i r , 1976), 537
F.2d 675, 679, and noted:
"The p r o p r i e t y of conditions on probation r a i s e s
d i f f i c u l t i s s u e s because t h e r e l e v a n t s t a n d a r d s ,
a s with sentencing g e n e r a l l y , a r e e i t h e r vague o r
non-existent. ***
" * * * The Ninth C i r c u i t has s t a t e d :
"I* * * j u d i c i a l d i s c r e t i o n i n probation
matters
i s l i m i t e d only by t h s requirement t h a t t h e terms
and conditions thereof bear '!a reasonable r e l a t i o n -
s h i p t o t h e treatment of t h e accused and t h e protec-
t i o n of t h e public."' United S t a t e s v. Nu-Triumph,
I n c . , 500 F.2d 594, 596 (1974). S i m i l a r l y , i n Porth
v. Ternplar, supra, a t n o t e 15, t h e Tenth c i r c u i t
stated:
"'The sentencing judge has a broad power t o
impose conditions designed t o s e r v e t h e accused
and t h e community. The only l i m i t a t i o n i s t h a t
t h e conditions have a reasonable r e l a t i o n s h i p t o
t h e treatment of t h e accused and t h e p r o t e c t i o n of
t h e p u b l i c . "' (Emphasis supplied.)
Defendant i n h i s r e p l y b r i e f on appeal contends "* * * a
f i n e could n o t be imposed i n t h i s case. F i r s t , because t h e
s u b s t a n t i v e s t a t u t e ( s e c t i o n 54-133) does n o t a u t h o r i z e a
fine. Second, because a p l a i n reading of t h e sentencing s t a t u t e
( s e c t i o n 95-2206) precludes t h e imposition of a fine."
Section 54-133, R.C.M. 1947, i s not t h e " s u b s t a n t i v e s t a t u t e "
c o n t r o l l i n g i n t h i s case. Section 54-133 would be c o n t r o l l i n g
only i f t h e defendant were being sentenced f o r t h e crime t o
which he plead g u i l t y . Here, sentence has been d e f e r r e d and
c o n d i t i o n s of probation imposed pursuant t o s e c t i o n 95-2206.
Thus defendant w i l l n o t be sentenced u n t i l defendant requests
sentencing i n l i e u of probation o r probation i s revoked because
of defendant's violation of a condition of probation. At the
termination of the time of deferment the District Court may
accept a plea withdrawal, strike the plea of-guilty,and order
the charge dismissed in accord with section 95-2207, R.C.M.
1947. State v. Drew, supra; Petition of Gray, (1973), 163 Mont.
Section 95-2206 sets forth the guidelines of reasonableness,
rehabilitation, and the protection of society as the criteria
to be utilized in evaluating the conditions of probation. All
jurisdictions heretofore discussed seem to agree with the guide-
lines set forth in section 95-2206, above set forth, even though
some have less strict statutory mandates than Montana.
The Arizona Court in Pitts reasoned that:
"* * * Imposition of a fine is the passing of a sen-
-
tence and not the suspension of sentence. The fact
that the court terms it a condition of probation
does not render it any the less a sentence. We
are not here dealing with a condition of probation
which requires the defendant to make restitution
to the crime victim. rhat would be a wholly different
matter . I ' 548 P. 2d 1203. (Emphasis supplied-)
The Arizona Court further reasoned that if a fine [as here and
not related to our guidelines] were to be allowed as merely a
condition of probation, the default in payment could result in
revocation of probation and imprisonment for the maximum period
allowed by the statute for the crime for which defendant was
convicted. In that event the failure to pay a small fine may
result in defendant's imprisonment far exceeding the period
ordinarily permitted.
We agree with the rationale of the Arizona Court. We fail
to find a reasonable association between the fine imposed here
and the crime committed. Neither do we find it to be a reasonable
or necessary condition of probation or for protection of the
public.
Therefore, we hold the imposition of condition of probation
Number 2, which requires the payment of $200 to Missoula County
as a condition of probation, a nullity and of no force or effect.
We Concur: