No. 14786 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

JAMES LENIHAN, 

Defendant and ~~~eliant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sandra K. Watts argued, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Sheri K. Sprigg, argued, Assistant Attorney General, 

Helena, Montana 

Submitted: November 2, 1979 

Decided :a2 I (L- '& 

r -< 

Filed: -,$, 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from the District Court of the Eighth 

Judicial ~istrict, Cascade County. Defendant was charged by 

information on September 1, 1978, with burglary, a felony, 

and criminal possession of dangerous drugs, a misdemeanor. 

At his arraignment on September 12, 1978, defendant entered 

a plea of not guilty to both offenses. On January 2, 1979, 

defendant moved to withdraw his not guilty plea and entered 

a plea of guilty to the charge of burglary, a felony in 

violation of section 45-6-204, MCA. The county attorney's 

office moved to dismiss the misdemeanor possession of dangerous drugs charge, and the court dismissed that charge. 

After a presentence report and testimony were presented to 

the court, sentence was imposed. 

Defendant's three-year sentence was deferred on the 

following conditions: 

(1) That defendant was to serve sixty days in the 

Cascade County jail with no release privileges; 

(2) That defendant was placed under the rules and 

regulations of the adult probation and parole bureau; 

(3) That defendant was forbidden to use or have in his 

possession any alcohol or drugs; 

(4) That defendant was ordered not to associate with 

any individuals on probation or parole; 

(5) That defendant was subject to search and seizure 

without warrant by any law enforcement officer who had 

reasonable suspicion to believe that defendant had incriminating evidence; and 

(6) That defendant was to pay the Cascade County attorney's office the sum of $250 as reimbursement for his attor- 
ney fees with the payment schedule to be worked out by his 

probation officer. 

The defendant in this case was found to be indigent and 

was appointed counsel through the Cascade County public 

defender's office. Appointed counsel represented defendant 

through all stages of the case. It is from the condition 

requiring defendant to pay $250 as reimbursement for his 

attorney fees ordered in the deferred imposition of sentence 

that defendant appeals. 

Two issues have been presented to this Court for review: 

1. Is the issue raised by defendant properly reviewable on appeal? 

2. Did the District Court err in ordering an indigent 

defendant to reimburse the county for attorney fees as part 

of a condition of deferred imposition of sentence? 

Defendant first argues that because Montana does not 

have a recoupment statute, the District Court's order to 

reimburse the attorney fees is invalid. He contends that 

section 46-18-201, MCA, does not grant authority to a district judge to impose such a condition. 

Defendant cites State v. Babbit (1978), - Mont. , 

574 P.2d 998, 35 St.Rep. 154, and State v. Cripps (1978), 

Mont. , 582 P.2d 312, 35 St.Rep. 967, for the 

proposition that the imposition of a fine is not specified 

as an allowable restriction or condition upon deferred 

imposition of sentence or upon suspended execution of sentence. The argument is made that an order for reimbursement 

of fees and a fine are indistinguishable and that in the 

absence of a recoupment statute, the District Court has no 

authority to make such an order. 
Defendant goes on to cite two Supreme Court cases, 

James v. Strange (1972), 407 U.S. 128, 92 S.Ct. 2027, 32 

L.Ed.2d 600, and Fuller v. Oregon (1974), 417 U.S. 40, 94 

S.Ct. 2116, 40 L.Ed.2d 642, involving state recoupment 

statutes, for the proposition that there must be a recoupment statute to make such an order because only then can the 

court measure whether or not adequate safeguards were provided for the protection of the defendant during the recoupment process. 

Finally, the ABA Standards at Part VI, Section 6.4, and 

a 1976 Washington State Bar report are cited by defendant 

for the proposition that the process of recoupment raises 

serious constitutional questions. Therefore, without a 

statute providing adequate safeguards, recoupment is not 

recommended. 

The State's first argument challenges this Court's 

power to review, contending that defendant did not object to 

the challenged condition in the District Court. The State's 

main contention is that reimbursement of attorney fees is a 

reasonable condition of deferred imposition of sentence 

under section 46-18-201 (1) (a) (v) , MCA. The argument is made 

that lack of specific authority for any condition imposed 

does not bar imposition of that condition under the above 

statute as long as it is reasonable. The State distinguishes Babbit and argues that a condition of reimbursement 

is analogous to restitution to a crime victim and different 

from the payment of a fine. 

The State cites State v. Smith (1978), 118 Ariz. 345, 

576 P.2d 533, for the proposition that a condition of payment to the government of the costs of incarceration is 

valid despite the lack of specific statutory authority and 
argues that the situation in the instant case is similar. 

It is argued that a condition of payment for costs to society relates directly to the reformation of the offender and 

is therefore valid. The State agrees, however, that the 

authority on this matter is divided. 

Before reaching the substantive issue involved herein, 

it is first necessary to discuss the State's contention that 

defendant's failure to object to his sentence in the trial 

court precludes our reviewing this matter. 

In this case, the Court has been placed in an undesirable position, more so because this is a criminal proceeding. 

Our hearing the matter has been challenged because no objection was recorded in the District Court. Defense counsel 

relates that objections were made in chambers where the 

first discussion of these conditions was had, but no record 

was taken and so none is available to this Court. There is 

no need for these problems, and we have commented on this 

type of matter on previous occasions. This Court is not 

going to willingly continue to be placed in this kind of 

circumstance and cannot emphasize too strongly that a proper 

record must be had at all stages of the proceedings with 

particular emphasis on criminal matters. 

Traditionally, in both civil and criminal matters, this 

Court has not accepted for review issues which were not 

objected to at the trial level. State v. Armstrong (1977), 

172 Mont. 296, 562 P.2d 1129; State v. ~adi (1975), 168 

Mont. 320, 542 P.2d 1206; State v. Paulson (1975)r 167 Mont. 

310, 538 P.2d 339. 

This Court, however, has never specifically ruled on 

the question presented here. That is, whether an objection 

at the trial level is a prerequisite to the challenging of a 
sentencing order on appeal. This issue has been ruled on in 

other jurisdictions with varying results. A poll of such 

jurisdictions reveals that Arkansas (Haynie v. State (1975), 

257 Ark. 542, 518 S.W.2d 492), Idaho (Pulver v. State (1968), 

92 Idaho 627, 448 P.2d 241), and Kansas (Peterson v. State 

(1967), 200 Kan. 18, 434 P.2d 542), have held that an appellate court cannot review a sentence if there was no objection to it at the trial level. Illinois (People v. Depratto 

(1976), 36 Ill.App.3d 338, 343 N.Ed.2d 628), Indiana (Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822), 

Florida (Kohn v. State (19741, - Fla .App. , 289 So.2d 

48), Pennsylvania (Commonwealth v. Lane (1975), 236 Pa.Super. 

462, 345 A.2d 233), and Oregon (State v. Braughton (19771, 

28 0r.App. 891, 561 P.2d 1040), on the other hand, do not 

require an objection before the validity of a sentence can 

be reviewed. 

State v. Braughton, supra, is similar to the instant 

case. Braughton involved a plea agreement wherein the 

defendant was sentenced to ten years in prison, which was 

suspended on the condition that he make restitution to five 

businesses which were the victims of crimes for which he had 

never been charged. Defendant objected to this portion of 

his sentence on the grounds that the court exceeded its 

statutory authority in imposing this condition. Before 

reaching the merits of the case, the state raised the question of whether the sentencing order entered was subject to 

review at all in light of the fact that the defendant made 

no objection to the order at the time of its entry. The 

court stated : 

". . . The sentencing authority of a court 

exists solely by virtue of a statutory grant 

of power and therefore cannot be exercised in 
any manner not specifically authorized . . . Where, as in this case, it is alleged that a 

sentencing court has exceeded its statutory 

authority in imposing a specific sentence, an 

objection below is not a prerequisite to the 

challenging of the sentencing order alleged 

to be void." Braughton, 561 P.2d at 1041, 

note 2. (Citations omitted.) 

It appears to be the better rule to allow an appellate 

court to review any sentence imposed in a criminal case, if 

it is alleged that such sentence is illegal or exceeds 

statutory mandates, even if no objection is made at the time 

of sentencing. As a practical matter, this may be a defendant's only hope in cases involving deferred imposition of 

sentence. If a defendant objects to one of the conditions, 

the sentencing judge could very well decide to forego the 

deferred sentence and send him to prison. To guard against 

this possibility, a defendant often times must remain silent 

even in the face of invalid conditions. We, therefore, 

accept jurisdiction in this matter. 

While the substantive issue involved in this case is 

claimed to be one of first impression, it is only a variation of State v. Babbit, supra, and others. 

Babbit involved a defendant who was convicted of criminal possession of dangerous drugs and given a deferred 

imposition of sentence. As one of the conditions of his 

sentence, defendant was ordered to pay $200 to the County of 

Missoula to be placed into a drug enforcement fund and was 

in the nature of a fine. The offense Babbit was convicted 

of provided for imposition of a prison term upon conviction, 

but not for the imposition of a fine. This Court ruled that 

under what is now section 46-18-201(1), MCA, a fine could 

not be imposed as a condition of a deferred imposition of 

sentence where there was not a reasonable association between 
the fine imposed and the crime committed or where it was not 

found to be a reasonable or necessary condition of probation 

or for the protection of the public. 574 P.2d at 1001, 

1002. Under the circumstances in Babbit, this Court held 

that a fine could not be imposed as a condition of the 

deferred imposition of sentence. 

In deciding Babbit, this Court relied heavily on an 

Arizona case, State v. Pitts (1976), 26 Ariz.App. 390, 548 

P.2d 1202, citing the following rationale: 

II I . . . Imposition of a fine is the passing of 

a sentence 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 dealins d-- 

with a condi- 

-- tion of probation which requires the defendant 

-- to make restitution -- to the crime victim. That 

would be a whollv different matter.' . . . 

"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 £0; 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." State v. Babbit, 574 P.2d at 1001. (Emphasis supplied.) 

The State attempts to distinguish Babbit and argues 

that a condition requiring reimbursement of attorney fees is 

analogous to restitution to a crime victim and distinguishable from the payment of a fine. Various cases are cited 

for the proposition that reimbursement of attorney fees is 

permissible under statutes similar to our section 46-18-201, 

MCA, if certain constitutional guidelines are met. State v. 

Foust (1972), 13 N.C.App. 382, 185 S.E.2d 718; State v. 

Smith (1978), 118 Ariz.App. 345, 576 P.2d 533; State v. 

Rogers Iowa r State v. 

Barklind (1975), 12 Wash.App. 818, 532 P.2d 633. 
The leading case on the above guidelines is Fuller v. 

Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642. 

The United States Supreme Court in Fuller upheld an Oregon 

recoupment statute which placed certain limitations on the 

actual recoupment process. They were as follows: 

(1) A requirement of repayment may be imposed only upon 

a convicted defendant; 

(2) A court may not order a convicted person to pay 

these expenses unless he is or will be able to pay them; the 

sentencing court must take account of the financial resources 

of the defendant and the nature of the burden that payment 

of costs will impose; no requirement to pay may be imposed 

if it appears at the time of sentencing that there is no 

likelihood that a defendant's indigency will end; 

(3) A convicted person under an obligation to repay may 

at any time petition the court which sentenced him for 

remission of the payment of costs or of any unpaid portion 

thereof; and 

(4) No convicted person may be held in contempt for 

failure to repay if he shows that his default was not attributable to an intentional refusal to obey the order of the 

court or to a failure on his part to make a good faith 

effort to make the payment. Fuller v. Oregon, 40 L.Ed.2d at 

650. 

There is no statute in Montana which specifically 

enumerates the Fuller guidelines. Further, the District 

Court makes no mention in its order of those guidelines. 

Failure to do so revives the fears espoused by this Court in 

Babbit : 

". . . the default in payment could result in 

revocation of probation and imprisonment -- for the 

maximum period allowed by the statute for the 
crime 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." 574 P.2d at 1001. 

This Court is aware of the financial burden placed on 

the counties and the State by the criminal justice system. 

We do not disagree with the proposition of reimbursement to 

the State. On the contrary, we applaud the trial judge for 

his efforts. However, we feel that recoupment provisions 

should be made to operate with considerations given to 

ability to repay, and in the event of default, the penalty 

should be a form of civil liability rather than possible 

criminal sanctions. Recoupment is not a magic word, and it 

may be possible and desirable to perfect a system outside 

that kind of legislation. 

The judgment of the deferred imposition of sentence is 

remanded to the District Court with instructions to vacate 

the repayment of attorney fees condition complained of and 

enter its order accordingly. 

We concur: 

 FA^ J, %@4& 

Chief Justice