THE STATE OF MONTANA,

Respondent,

No. 93-102

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

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

Filed:

Submitted on Briefs: May 20, 1993

Decided: July 6, 1993
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,

determined conditions of his parole. One of those

involved restitution:

the judge

conditions

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

2
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.

-ITodd 50 St.Rep. 288. 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-la202, MCA, lawfully can be imposed.

-tTodd 50 St-Rep. at 289.

The specific wording in 5 46-18-202, MCA, is as follows:

3
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

5
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 restitution 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:

6
(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 rehabilitation 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