NO. 82- 288 

IN TIIE SUPXE!'4E CC)U!?T OF THE STATF OF ?IOI.JTP.?JA 

1983 

STATE OF MONTAXA, 

Plaintiff and Respondent, 

KA2EN I. GIWY, 

Defendant and Appellant, 

Appeal from: The Dlstrict Court of the Third Judlcial District, 

In and for the County of Pov~ell The Honorable 

Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

I(arei1 I. Gray, pro set Deer Lodge, l'lontana 

For Kespondent : 

Hon. Mike Greely , Attorney qeneral , Ifelen?, 

Montana 

Ted Mizner, County Attornev, Deer Lodge, 

Montana 

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Submitted on Briefs: April 21, 198-3 

Decided: Play 19, 1983 

Filed: MAY 1 9 1983 

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Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals pro se from the sentence she received af ter 

she pled guilty to two counts of felony theft. 

On September 10, 1981, defendant was charged with two counts 

of felony theft in the District Court of the Third Judicial 

District, Powell County. Court I charged defendant had made 

false statements to Powell County welfare employees to receive 

food stamps in the amount of $1,913. Count I1 charged defendant 

failed to report income accurately and fraudulently received 

$3,067.60 in AFDC payments. Defendant pled not guilty to both 

counts. 

Thereafter, in conjunction with a plea bargain, defendant 

withdrew her pleas of not guilty and pled guilty to both counts 

on May 20, 1982. The substance of the plea bargain was the State 

agreed to recommend a sentence of three years suspended if defendant pled guilty to both counts. The District Court ordered a 

presentence investigation and set sentencing for July 8, 1982. 

On that day defendant appeared at the sentencing hearing, the 

State recommended a three-year suspended sentence, and the 

District Court ordered defendant serve three years in prison with 

all but thirty days suspended. The Court further ordered defendant make restitution to the State of Montana and serve the 

thirty days in the county jail at the rate of two days per week. 

Defendant appeals only the thir ty-day sentence. 

The substance of the issues raised on appeal is: 

1. Whether the District Court erred in not imposing sentence 

as the State recommended. 

2. Whether the District Court was prejudiced by the presentence investigation report. 

Defendant first contends the District Court erred by not 

imposing a three-year suspended sentence as the State recommended. This Court has upheld the discretion of the District 

Court in sentencing a defendant who has pled guilty as part of a 
plea bargain in State v. Mann (1976), 169 Mont. 306, 546 P.2d 

515. Here, defendant was informed by the District Court that the 

recommendation of the State was not binding upon the Court. 

Defendant stated she understood. Therefore, she must accept the 

sentence pronounced by the District Court. 

Next, defendant claims the District Court was prejudiced by 

the presentence investigation report. Most of defendant's objections stem from material contained in paragraph 9 of the report. 

The District Court ordered paragraph 9 stricken from the report 

at the sentencing hearing. In State v. Orsborn (1976), 170 Mont. 

480, 486, 555 P.2d 509, this Court stated, "A convicted defendant 

still has a due process guarantee against a sentence predicated 

on misinformation." For defendant to here claim she did not 

receive due process, she must show the District Court pronounced 

sentence based upon misinformation contained in the presentence 

investigation report. This defendant has failed to show. Section 46-18-112, MCA, governs the contents of the presentence investigation report and we find with the exception of paragraph 9, 

which was stricken, the report complied with this section. 

Judgment is af f irmed . 

*== 

ustice 

&&J We concur: I I 

Ckief Justice