No. 02-310 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 308 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

LINDA WELLING, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carl B. Jensen, Deputy Public Defender, Great Falls, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; James B. Wheelis, 

Assistant Attorney General, Helena, Montana 

Brant Light, Cascade County Attorney, Great Falls, Montana 

Submitted on Briefs: October 10, 2002 

Decided: December 12, 2002 

Filed: 

__________________________________________ 

Clerk
2 

Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 On January 14, 1991, the Defendant, Linda Welling, pled guilty 

to issuing a bad check (common scheme) in violation of § 45-6-316, 

MCA (1989), and on February 13, 1991, received a five-year deferred 

sentence on several conditions, including that she pay restitution 

in the amount of $5,252.36. In January of 1996, her deferred 

sentence was revoked and reinstated for a period of six years. On 

or about December 27, 2001, the State filed a petition to revoke 

Welling's probation for non-payment of restitution. The District 

Court for the Eighth Judicial District in Cascade County found that 

Welling violated the terms of her probation requiring payment of 

restitution, found mitigating circumstances, and ordered that her 

deferred sentence be extended two years. Welling appeals the 

District Court's order. We reverse the Order of the District 

Court. 

¶2 The issue on appeal is whether the District Court abused its 

discretion when it extended Welling's deferred sentence for two 

years. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 Welling received a five-year deferred sentence on February 13, 

1991, after she pled guilty to one count of issuing a bad check 

(common scheme), a felony in violation of § 45-6-316, MCA (1989). 

As a condition of her deferred sentence, the District Court ordered 

that she pay statutory fees and $5,252.36 as restitution to her 

victims within five years. 

¶4 On August 25, 1995, Welling's probation officer reported that 

since April 1, 1991, Welling had made no payments. Welling 
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admitted that she had failed to pay restitution. The District 

Court revoked her deferred sentence and then reinstated her 

deferred sentence for six more years. The District Court added 

additional terms to her original deferred sentence which required 

that Welling pay a minimum of $10.00 per month until the contract 

on her residence was paid off, or until January 11, 1999, 

(whichever came sooner). Thereafter, she was ordered to pay $250 

per month until the restitution obligation was satisfied. 

¶5 From January 11, 1996, until December 27, 2001, Welling paid 

restitution in the total amount of $780. On December 27, 2001, the 

State petitioned for revocation of her deferred sentence. 

¶6 Along with its report of a probation violation, the State 

submitted information regarding Welling's financial situation, 

family situation, and her inability to work. Welling is a single 

mother and it is undisputed that since October of 1999, she has 

been unable to work as a result of "cervicothoracic strain and 

cervicogenic headaches," which result from injuries she sustained 

in October of 1999. Since October 2000, Welling's total income has 

been $220 per month which she receives as workers' compensation 

disability benefits. Welling's last restitution payment was made 

on September 14, 2000, when she made a $100.00 payment. Patricia 

Woolridge, a state probation and parole officer, testified that 

Welling's physician had documented her inability to work since 

October of 1999; that aside from the money, Welling had been a 

model probationer; and, that prior to her injury, Welling had been 

making fairly substantial payments for restitution. 
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¶7 The District Court concluded that Welling violated her 

probation. However, it found that Welling had been a model 

probationer and there were mitigating circumstances and extended 

the restitution period for two years during which her monthly 

obligation was reduced to $10 per month. 

STANDARD OF REVIEW 

¶8 We review a district court's decision to revoke a probationary 

sentence to determine whether the court abused its discretion. 

State v. Anderson, 2002 MT 92, ¶ 10, 309 Mont. 352, ¶ 10, 46 P.3d 

625, ¶ 10. Before a district court can revoke a suspended 

sentence, it must be reasonably satisfied that the probationer's 

conduct has not been what she agreed it would be if she were given 

liberty. State v. Richardson, 2000 MT 72, ¶ 10, 299 Mont. 102, ¶ 

10, 997 P.2d 786, ¶ 10. 

DISCUSSION 

¶9 Did the District Court abuse its discretion when it extended 

Welling's deferred sentence for two years? 

¶10 The District Court concluded that Welling violated the 

restitution condition of her probation, and extended the probation 

period for two years, and required that Welling pay at least $10 

per month during that period. 

¶11 Welling contends that the District Court abused its discretion 

when it extended her deferred sentence. She further contends that 

the District Court abused its discretion by disregarding § 46-18-

203(6), MCA, which provides that a failure to pay restitution is 

excused when the probationer has made a good faith effort to make 

payments. 
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¶12 The State contends that the District Court did not abuse its 

discretion and that excusing Welling from her duty to pay 

restitution would result in a "windfall" to her at the expense of 

her victims. The State notes that Welling may soon receive a lump 

sum workers' compensation settlement from which she could pay the 

remaining restitution and that the District Court did not abuse its 

discretion when it took this fact into consideration. 

¶13 Section 46-18-203(6), MCA, provides: 

At the hearing, the prosecution shall prove, by a 

preponderance of the evidence, that there has been a 

violation of the terms and conditions of the suspended or 

deferred sentence. However, when a failure to pay 

restitution is the basis for the petition, the offender 

may excuse the violation by showing sufficient evidence 

that the failure to pay restitution was not attributable 

to a failure on the offender's part to make a good faith 

effort to obtain sufficient means to make the restitution 

payments as ordered. [Emphasis added.] 

Section 46-18-247(2), MCA, provides that: "[i]f the court finds 

that the offender's default was attributable to the offender's 

failure to make a good faith effort to obtain the necessary funds 

for payment of the ordered restitution, the court may take any 

action provided for in 46-18-203." Section 46-18-203, MCA, 

provides for the revocation of deferred sentences. 

¶14 It is undisputed that Welling is a single mother with a 

monthly income of $220; that prior to her injury she had made 

substantial efforts to pay restitution and that she has otherwise 

been a model probationer. 

¶15 Based on these facts, we conclude that Welling provided 

sufficient evidence that her failure to pay restitution was not 

caused by her lack of a good faith effort to obtain the means to 
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make those payments, and that her income was insufficient to make 

even the $10 monthly payment which Welling's probation officer was 

apparently willing to accept. Therefore, we conclude that the 

District Court abused its discretion when it did not excuse 

Welling's failure to pay restitution pursuant to § 46-18-203(6), 

MCA. 

¶16 We find no merit in the State's argument that Welling will 

receive a "windfall" because she will be excused from paying 

restitution if her sentence expires before she receives her 

workers' compensation settlement. First, disability benefits are, 

at most, partial compensation for the loss of earning capacity 

caused by a work-related disability and by no means a "windfall." 

Second, § 46-18-249(1), MCA, provides: 

The total amount that a court orders to be paid to a 

victim may be treated as a civil judgment against the 

offender and may be collected by the victim at any time, 

including after state supervision of the offender ends, 

using any method allowed by law, including execution upon 

a judgment, for the collection of a civil judgment. 

[Emphasis added.] 

In addition, § 46-18-241(1), MCA, provides that "[t]he duty to pay 

full restitution under the sentence remains with the offender until 

full restitution is paid," effectively eliminating any statute of 

limitations for recovery of the amount due. Welling has not 

received a "windfall:" she is still civilly liable for her past 

wrongs and her victims may still recover for their losses, 

regardless of when she acquires the ability to make payment. 

¶17 For these reasons, the District Court's order extending Linda 

Welling's deferred sentence for two years is reversed. 
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/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART 
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Justice James C. Nelson specially concurs: 

¶18 I concur in the result of our Opinion, although I would reach 

that result in a different manner on the basis of various 

sentencing, revocation and dispositional orders in the record. 

¶19 The trial court's original sentence dated February 13, 1991, 

deferred Welling's sentencing for five years. Under § 46-18-

201(2), MCA (1989), six years was the maximum deferral allowed. 

Accordingly, the six years would have run February 12, 1997. The 

court's January 11, 1996 Disposition revoked the first deferred and 

reinstated a deferral for six years --again, the maximum under § 

46-18-201(3), MCA (1995). Theoretically, this was permissible for 

the reasons set out hereafter. This new six-year period would have 

run January 10, 2002. 

¶20 The next petition to revoke was timely filed in December 2001 

(§ 46-18-203(2), MCA (2001)). In the court's April 4, 2002 

Dispositional Order on that petition, the court found that Welling 

violated the terms of her deferred imposition of sentence; and that 

"[Welling] stated no legal reason why sentence should not be 

pronounced . . . ." The court then stated that Welling's deferred 

imposition of sentence was "extended" for two years and that the 

"reason for this sentence is . . . mitigating circumstances. . . ." 

 Assuming the validity of the additional two years, that means the 

new deferred sentence would have run April 3, 2004. 

¶21 While we may disagree as to the effect of the unartful 

language used by the trial judge--i.e., whether he actually 

"revoked" her deferred or not and then, imposed a "sentence," but 
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putting the best spin on its language from the court's standpoint--

what the court did was to effectively revoke Welling's deferred 

status and then once again defer imposing a sentence for two years. 

 

¶22 Next, it is necessary to focus on § 46-18-203(7)(a), MCA 

(2001), which provides: 

If the judge finds that the offender has violated 

the terms and conditions of the suspended or deferred 

sentence, the judge may: 

(i) continue the suspended or deferred sentence 

without a change in conditions; 

(ii) continue the suspended sentence with modified 

or additional terms and conditions; 

(iii) revoke the suspension of sentence and require 

the offender to serve either the sentence imposed or any 

lesser sentence; or 

(iv) if the sentence was deferred, impose any 

sentence that might have been originally imposed. 

¶23 Applying § 46-18-203(7)(a), MCA (2001), if the trial court 

finds that the defendant violated the terms of the deferred 

sentence--which undisputedly the judge did here--then his options 

are limited. Under subsection (7)(a)(i) he could continue the 

deferred sentence without a change in conditions. The court did 

not do this in Welling's case. Rather, it "extended" the deferred 

by two years. Subsections (7)(a)(ii) and (iii) apply only to 

suspended sentences. And under subsection (7)(a)(iv) the judge 

could impose any sentence that might have been originally imposed. 

¶24 Setting aside the fact that "deferring" sentencing is not

imposing a sentence, but rather, setting that off to another time--

§ 46-18-201(1), MCA, allows the judge, as one of the statutorily 

authorized sentences, to defer imposition of sentence for various 

periods of time. In other words, the judge could revoke one 
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deferred sentence and impose another deferred sentence (as did the 

Judge in 1996). There is, however, no authority in the code that 

allows the judge to "extend" the term of an existing deferred 

sentence as a permissible result of finding that the defendant 

violated the terms of his or her prior deferral. This is 

especially true where the "extension" would extend the deferral 

beyond the six-year maximum allowed by law. 

¶25 Accordingly, we must resolve this case in one of two ways: (a) 

either we must conclude that the judge revoked Welling's 1996 

deferred and then reimposed a second two-year deferred--in which 

case the prohibition against revocation in § 46-18-203(6), MCA, 

would become applicable with the result that the judge improperly 

revoked Welling's probation; or (b) we must conclude that in 

extending an existing deferred, the judge entered an illegal 

sentence--in which event the sentence must be vacated. In either 

case, since Welling had made a good faith attempt to pay 

restitution and since the deferral time has now run well past the 

six years allowed by law as a result of the January 1996 deferral, 

the State can no longer petition to revoke. Section 46-18-203(2), 

MCA. 

¶26 For these reasons the judgment against Welling must be 

reversed and the proceedings against her dismissed. Our Opinion 

having reached that same result, I concur. 

/S/ JAMES C. NELSON 

Chief Justice Karla M. Gray joins in the foregoing special 

concurrence. 
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/S/ KARLA M. GRAY