No. 82-391 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSTEPHEN E. FARRELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon R. Bennett, Judge presiding. 

COUNSEL OF PZCORD: 

For Appellant: 

Harlen, Thompson & Parish; Shaun R. Thompson argued, 

Helena, Montana 

For Respondent : 

Mike Greely, Attorney General, Helena, Montana 

James McLean argued, Asst. Atty. General, Helena 

Mike McGrath, County Attorney, Eelena, Montana 

-- - 

Submitted: September 29, 1983 

Decided: January 17, 1984 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Appellant Stephen Farrell was convicted of theft of 

public assistance funds by a jury in the District Court of 

the First Judicial District, Lewis and Clark County. He has 

appealed both the conviction and his sentence to this Court. 

For the reasons stated below, we affirm the conviction, but 

vacate the sentence and remand for resentencing. 

The appellant was discharged from the United States 

Navy on December 17, 1979. After his discharge, appellant, 

his wife Margaret, and a step-daughter returned to his home 

town, Helena. Margaret was pregnant on the family's arrival 

in Helena, and because their finanical situation was 

precarious, the Farrells went to the Lewis and Clark County 

Welfare Department to apply for medical assistance and food 

stamps. At the time of the application they were told that 

they could apply for Aid to Families with Dependent Children 

(AFDC) , which included Medicaid, as well as food stamps. A 

welfare worker cautioned them that they should report any 

change in financial circumstances. Based on their 

application of January 7, 1980, the Farrells were certified 

to receive AFDC benefits for a period of six months and food 

stamps for one month. 

During the period from March until May 1980, the 

appellant received a number of unemployment checks. The 

Farrells claim that this income was reported to the Welfare 

Department. Witnesses for the State, however, testified at 

his trial that they had no record of any such report. 

In early June, Farrell was advised that he would begin 

receiving veteran's benefit checks. On June 16, 1980, a 
check for $260.80 was mailed to him. The records cilstodian 

at Fort Harrison stated that Farrell should have received 

the check within six to ten days. Despite this, on June 27, 

which would have been the end of the ten-day period, the 

appellant reapplied for food stamps. In that application, 

he indicated he was not receiving any veterans' benefits. 

In July, Farrell began working part-time for his 

uncle, Eugene L. "Bud" Menth, at Capital Excavating, in 

Helena. He did not report the income received from this job 

to the Welfare Department, and he continued to receive full 

AFDC benefits and food stamps. AFDC checks and 

Authorization to Purchase Food Stamps (ATP) cards include 

statements to the effect that endorsing the checks or 

signing the cards amounts to an affirmation that the 

signer's financial condition has not changed, and that all 

information provided for purposes of establishing 

eligibility is true. Farrell's signature appeared on all 

the cards and checks issued to him. 

In late August, the Farrells again applied for 

assistance. That application did not reflect his income 

from Capital Excavating, and listed only his veterans' 

benefits as income. However, the Welfare Department was 

informed that Farrell was working and requested that he 

provide it with a statement of his earnings. He did so by 

presenting two notes from employer Bud Nenth setting out his 

wage rate and estimated hours. The amounts specified were 

not great enough to make the appellant ineligible for 

benefits. Menth's statements later turned out to be 

incorrect. At trial, the State, through Menth's bookkeeper, 

introduced a summary of Farrell's 1980 earnings which showed 
he had earned substantially more than the estimates 

reflected, e.g., July, $350; August, $920; September $1,260; 

October, $1,036; November, $560. 

Farrell was eventually charged with purposely or 

knowingly exerting unauthorized control over public 

assistance funds by knowingly making false statements to 

procure the funds, a violation of Section 45-6-301(4)(a), 

MCA. Farrell was also charged under Section 45-6-301(6) for 

procuring the funds on several separate occasions as part of 

a common scheme. He was tried before a jury, and was found 

guilty. The trial court sentenced Farrell to ten (10) years 

in prison, the service of that term being suspended upon 

"strict and complete adherence" to the following conditions: 

(1) that he make restitution of the welfare funds illegally 

obtained, or $3,864.03, and the required 25 percent penalty 

thereon, or $966.25; (2) that he reimburse the court for 

expenses incur red by his attorney up through sentencing, 

approximately $2000, and for any further legal expenses 

incurred, and to pay an additional ten percent interest on 

all reimbursements; and (3) that he undergo treatment for 

his alcohol problem. 

Farrell appeals from his conviction and those portions 

of his sentence concerning the number of years and the terms 

of restitution and recoupment of attorney fees. 

Specifically, he presents five issues: 

(1) Whether there was substantial evidence before the 

District Court and the jury to support the verdict, and 

whether the District Court erred in not granting appellant's 

motions to dismiss or for a directed verdict? 

(2) Whether the District Court erred in giving State's 
proposed instructions 9 and 12 (Court's 10 and 9) concerning 

the obligation of recipients of public assistance to report 

changes of income within ten days? 

(3) Whether the District Court committed reversible 

error by failing to instruct on the lesser included offense 

of misdemeanor theft? 

(4) Whether the District Court's judgment and sentence 

were improper in that the court failed to take into 

consideration the appellant's financial resources in 

ordering him to pay restitution, and to reimburse the County 

for the cost of his court-appointed attorney? 

(5) Whether the District Court violated appellant's 

constitutional right of equal protection by apparantly 

basing the length of his sentence on his economic status and 

earning ability? 

We treat Issues One and Two together, as they arise 

from substantially the same argument; i.e., that the 

appellant Farrell was somehow convicted of an offense for 

which he was not charged. 

The information filed by the county attorney indicates 

that Farrell was charged with a violation of Section 

45-6-301(4)(a): purposely or knowingly obtaining or 

exerting unauthorized control over public assistance funds, 

by knowingly making false statements to the Lewis and Clark 

County Welfare Department. Farrell was also charged with 

having procured the funds over a period of months as part of 

a "common scheme." Section 45-6-301(6), MCA. At trial, the 

state produced evidence of false statements made by Farrell 

in three different contexts: (1) by applying for public 

assistance; (2) by endorsing five AFDC checks; and (3) by 
applying for food stamps. In addition, the State put forth 

evidence to show that Farrell had failed to notify welfare 

authorities of changes in his financial condition. 

The gravamen of Farrell's argument is that the State 

failed to produce substantial evidence of his ever making 

false statements to the welfare authorities. Moreover, he 

argues that the alleged failures to report changes in 

financial condition do not constitute the making of false 

statements. Because he was charged only with making false 

statements to obtain the funds, Farrell reasons that the 

charges against him should have been dismissed. In the 

alternative, Farrell argues for a new trial on the basis 

that Jury Instructions 9 and 10, when read together, 

instructed the jury that Farrell could be found guilty for 

failing to report changes in his eligibility to receive 

public assistance. Because Farrell was not charged with 

this offense, the instructions are to be deemed improper for 

this particular case. 

We agree with the appellant Farrell that the failure 

to report changes in financial condition does not constitute 

the making of "false statements" within the scope of Section 

45-6-301(4)(a). The failure to report is in the nature of an 

 omission,^^ i.e., " [tlhe neglect to perform what the law 

requires." Black's Law Dictionary 979 (5th ed. 1979). If 

Farrell had been charged under subsection (b) of Section 

45-6-301(4), MCA--theft of public assistance funds by a 

"fraudulent scheme or device,"--the omissions would have 

been sufficient to constitute a crime. See State v. Allison 

(1952), 173 Kan. 107, 244 P.2d 176. Nevertheless, the 

failure to charge Farrell for not reporting changes in his 
financial condition does not warrant reversal of his 

conviction. We find substantial credible evidence of false 

statements made by Farrell to obtain welfare assistance. 

For example, Farrell endorsed several AFDC checks, and in so 

doing, affirmed that his eligibility status had not changed 

and that prior information submitted to determine this 

status was true. These are "statements," as are the 

affirmations on the original application forms and ATP 

cards, and evidence produced by the State at trial tended to 

prove that these statements were false. Farrell was 

undoubtedly receiving enough outside income so as to render 

him ineligible for the sums he received. It is of no 

consequence to this appeal that many of the "statements" 

were in effect made to state agencies, and not the county 

welfare department, which was the only entity mentioned in 

the information. That there was evidence of false 

statements made to obtain the welfare assistance was legally 

sufficient to convict him of theft under Section 

45-6-301(4)(a). 

Thus, the trial court did not err by failing to grant 

appellant's motions to dismiss or for a directed verdict. 

Similarly, the rendering of Instructions No. 9 and 10 was 

not prejudicial to defendant's case. The jury was properly 

instructed on the elements of theft outlined in Section 

45-6-301(4) (a) and on the concept of common scheme, and 

therefore had an acceptable legal basis upon which to 

consider the available evidence. Where jury instructions, 

taken as a whole, state the law applicable to a case, a 

party cannot claim reversible error as to giving of certain 

instructions. Goodnough v. State (Mont. 1982), 647 P.2d 
Appellant's third issue on appeal is whether the 

District Court erred by failing to instruct the jury on the 

lesser included offense of misdemeanor theft. In State v, 

Kyle (Mont. 1980), 628 P.2d 260, 263, 37 St.Rep. 1447, 1451, 

we held that: 

It. . . the defendant is entitled to an 

intruction on a lesser included offense 

if the evidence would enable the jury 

rationally to find him guilty of a lesser 

offense and to acquit him of the greater. 

Keeble v. United States (1973), 412 U.S. 

205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 

844, 847; State v. Bouslaugh (1978), 

Mont., 576 P.2d 261, 263, 35 St.Rep. 319. 

But this Court had held that the District 

Court will not be put in error for 

refusing to instruct as to the lesser 

included offense, if the evidence is such 

to show that the defendant is either 

guilty of the offense charged or entitled 

to an acquittal. Bouslaugh, supra, 

Mont., 576 P.2d at 263, State v. McDonald 

(1915), 51 Mont. 1, 16, 149 P. 279, 285." 

All the evidence, with the exception of some minor 

references made to small medical bills by a State witness 

during the State's unsuccessful attempt to introduce an 

exhibit on medical overpayments, shows that all the amounts 

received by Farrell were over $150. Looking at this record 

as a whole, we find that a rational trier of fact could not 

have found Farrell guilty of misdemeanor theft, based solely 

on these minor references to small medical payments. The 

instruction on lesser offense was properly refused. 

Appellant's fourth issue goes to the Court's 

consideration of his financial condition when ordering 

restitution of amounts illegally procured from public 

authorities and requiring recoupment of legal fees expended 

in his defense and subsequent legal action on his behalf, 

including this appeal. He insists that the trial court did 
not pay heed to provisions in statute and in case law 

concerning an indigent defendant's financial ability to make 

restitution or provide reimbursement of legal fees. 

We first examine the recoupment problem. The 

standards for reimbursement of attorney fees are set out in 

Section 46-8-113, MCA: 

"(2) Costs must be limited to reasonable 

compensation and costs incurred by the 

cour t-appointed counsel in the cr imina.1 

proceeding. Costs may not include 

expenses inherent in providing a 

constitutionally guaranteed jury trial or 

expenditures in connection with the 

maintenance and operation of government 

agencies that must be made by the public 

irrespective of specific violations of 

law. 

"(3) The court may not sentence a 

............................. 

defendant to pay the costs of 

------- court-a~pointed .......................... counsel unless the 

defendant is or will be able to pay them. 

In determining the amount and method of 

payment of costs, the court shall take 

account of the financial resources of the 

defendant and the nature of the burden 

that payment of costs will impose. 

"(4) A defendant who has been sentenced 

to pay costs and who is not in 

contumacious default in the payment 

thereof may at any time petition the 

court that sentenced him for remission of 

the payment of costs or of any unpaid 

portion thereof. If it appears to the 

satisfaction of the court that payment of 

the amount due will impose manifest 

hardship on the defendant or his 

immediate family, the court may remit all 

or part of the amount due in costs or 

modify the method of payment." (emphasis 

added ) 

Provisions similar to the above have been recognized by the 

United States Supreme Court as permissible under 

constitutional principles of equal protection and 

availability of legal counsel. Fuller v. Oregon (1974), 417 

U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642. Therefore, we 
reject inferences by the appellant that so-called "strong 

public policy reasons" should convince this Court to 

eliminate the practice of reimbursement for the costs of 

counsel. 

However, we find nothing in the transcript of record 

or in the judgment of the trial court to indicate how or if 

the court took cognizance of appellant's financial resources 

and the burden that recoupment would impose on him. The 

judgment cannot stand without a meaningful inquiry into the 

appellant's financial status and a subsequent finding of the 

record that he has sufficient resources to repay costs of 

legal counsel. See United States v. Eracewell (2d.Cir. 

1978), 569 F.2d 1194, 1197-98. In conducting an inquiry and 

reaching a conclusion, the trial court "need not permit a 

full-fledged adverarial inquiry into the nature and amount 

of a defendant's assets; nor need he become involved in 

determining priorities to these assests. [However,] . . . 

any defenses to payment asserted by a defendant . . . should 

be fully considered." Bracewell, supra, at 1200. 

That portion of the judgment concerning restitution is 

also suspect. Restitution by itself is the recognized 

public policy of this state, see, e.g., Section 

46-18-201(l)(a)(iv), MCA, and no arguments have been 

presented to the effect that requiring restitution is 

impermissible. Nevertheless, we have required the district 

courts to take into consideration a defendant's ability to 

make restitution, including a review of the defendant's 

financial resources and any burdens imposed by repayment. 

State v. Morgan (Mont. 1982), 646 P.2d 1177, 1183-84, 39 

St.Rep. 1072, 1080-81. The mandate of Morgan was not 
adhered to by the trial court in the immediate case. Under 

the circumstances, vacation of the sentence and a remand for 

new proceedings are in order. Following Morgan, the trial 

court must, in its written findings, "include sufficient 

facts to show compliance" with the conditions respecting 

Farrellls financial condition and his ability to make 

restitution. See Morgan, supra, 646 P.2d at 1184, 39 

Because appellant's fifth issue for review is also 

connected to sentencing errors, we consider it here. This 

issue goes to the length of his sentence, ten years 

(suspended), and the grounds upon which it was allegedly 

based. The following excerpt from the sentencing 

transcript, including a colloquy between the trial judge and 

the appellant, apparantly illustrates the only factors 

relevant to determination of Farrell's sentence: 

"THE COURT: Very well. You do have one 

plus on your record, and that is that you 

have served honorably in the armed 

forces. Other than that, I don't see any 

very great saving features here. The 

fact that you haven't been convicted 

before has to be balanced with the fact 

this is not a single offense; this was 

offense after offense for some seven, 

eight, nine months. We intend by our 

sentence to recover fully the amount that 

you owe the State; not only for the money 

that you secured illegally from SRS and 

the Welfare Department of this county, 

but also for the amount of money the 

State has laid out for your attorney. 

"It looks very much like before this is 

all out that you're probably going to pay 

eight to nine thousand dollars. That 

isn't going to be forthcoming in your 

life in the near future, certainly not 

within three years, and you would't even 

pretend to me that you could make that 

amount of money clear in three years. 

That's correct, isn't it? 

"THE DEFENDANT: I really don't know. I 
wouldn't think it. It depends on the 

economy. 

"THE COURT: Well, it depends on two 

things; it depends on the economy, and it 

depends on your sobriety. 

"THE DEFENDANT: Yes, sir. 

"THE COURT: Right. Rut the possibility 

of your doing that in three years is 

pretty small. You'd have to agree with 

that. 

"THE DEFENDANT: I don't know, sir. 

THE COURT: I don't either, and we'll take 

that into consideration in sentencing. 

You've never made that amount of money 

clear before, have you, in you life? 

"THE DEFENDANT: No, sir, I haven't 

"THE COURT: All right. It's a new 

experience. Because of the necessity for 

considerable time, I think you can 

succeed if you stay sober, and I think 

you can pay the debt, but I don't think 

you can do it in much less than ten 

years, and for that reason we're going to 

impose a sentence of ten years at Montana 

State Prison and suspend it in its 

entirety . . ." 

From the preceding colloquy, appellant is convinced 

that his sentence--the maximum allowed under state law, see 

Section 45-6-301(5), MCA--was based only upon his indigency 

and was thus violative of his right to equal protection of 

the law. Strangely enough, the State has avoided any 

rebuttal to appellant's argument on this appeal. Based on 

our review of the transcript, we find that appellant's 

sentence is probably irnpermissable, although we rely on 

principles of due process, as opposed to equal protection, 

in reaching this conclusion. 

Appellant relies on Griffin v. Illinois (1956), 351 

U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 for the general 

proposition that discrimination against criminal defendants 
on the basis of economic status is prohibited by the equal 

protection clause of the fourteenth amendment. In Griffin, 

the United States Supreme Court held that a state could not 

deny appellate review of a criminal conviction merely 

because the defendants seeking the appeal lacked funds to 

purchase a transcript of lower court proceedings. The 

plurality opinion of Justice Black suggests that both equal 

protection and due process: 

"call for procedures in criminal trials 

which allow no invidious discriminations 

between persons and different groups of 

persons. Both equal protection and due 

process emphasize the central aim of our 

entire judicial system--all people 

charged with crime must so far as the law 

is concerned, 'stand on an equality 

before the bar of justice in every 

American court.' Chambers v. Florida, 

309 U.S. 227, 241. See also Yick Wo v. 

Hopkins, 118 U.S. 356, 369." 

(opinion of Black, J.). In recent years, as the courts have 

had an opportunity to consider Griffin in the context of 

sentencing, greater emphasis has been placed on equal 

protection in evaluating and, in some cases, invalidating 

certain sentencing procedures. See, e.g., Tate v. Short 

(1971), 401 U.S. 395, 91 S.Ct. 668, 38 L.Ed.2d 130 

(violation of equal protection to limit punishment to 

payment of fine for those able to pay but to convert fine to 

imprisonment for those unable to pay); Williams v. Illinois 

(1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 

(violation of equal protection to subject certain class of 

criminal defendants to a period of imprisonment beyond the 

statutory maximum solely by reason of indigency); Monsour v. 

Gray (E.D.Wisc. 1973), 375 F.Supp. 786 (equal protection 

clause proscribed absolute bar to consideration of 
pre-conviction custody occasioned solely by financial 

inability to make bail in determining term of imprisonment 

to be served on conviction). See generally P. Polyviou, The 

Equal Protection of the Laws 522-35 (1982). 

Recently, however, the United States Supreme Court 

apparantly has taken a cue from the late Justice Harlan, and 

concluded that due process, not equal protection, is the 

proper tool for guaging the constitutionality of sentencing 

procedures. This shift is most evident in the analysis in 

Bearden v. Georgia (1983), U.S. , 103 S.Ct. 2064, 

76 L.Ed.2d 221, a case dealing with the validity of a 

restitution order. The Court's analysis incorporates in 

large part the views first expressed by Justice Harlan in 

his concurring opinion in Williams v. Illinois, supra. 

In Bearden, Justice OIConnor, writing for a majority, 

renewed the observation from Griffin that "[dlue process and 

equal protection principles converge in the Court's 

analysis" in most cases involving indigent criminal 

defendants. Bearden, supra, 103 S.Ct. at 2068, 76 L.Ed.2d 

at 228. Despite the past emphasis on equal protection, the 

Court indicated that a "due process" analysis was not 

without support: 

"Justice Harlan in particular has 

insisted that a due process approach more 

accurately captures the competing 

concerns. See e.g., Griffin v. Illinois, 

351 U.S. at 29-39, 76 S.Ct., at 595-600 

(Harlan, J., dissenting); Williams v. 

Illinois, 399 U.S. 235, 259-266, 90 S.Ct. 

2018, 2031-34 , 26 L.Ed.2d 5 8 6 

(1970)(Harlan, J., concurring). As we 

recosnized in Ross v. Moffitt, 417 U.S., 

qenerally --__--- ........................ analyze the fairness of 

relations between the criminal defendant 

................................... 

and the State under the Due Process 

Clause, while we approach the question 

- whether the State has invidiously denied 
one class of defendants a substantial 

------------ benefit available to another class of 

defendants under the Equal ------------ Protection 

Clause. " 

103 S.Ct. at 2068-69, 76 L.Ed. 2d at 228 (emphasis added). 

Arguably, the Court now recognizes that the concept of 

fundamental procedural fairness, as embodied in the Due 

Process Clause, has an important if not overriding role to 

play in the evaluation of sentencing procedure: 

"To determine whether . . . differential 

treatment violates the Equal Protection 

Clause, one must determine whether, and 

under what circumstances, a defendant's 

indigent status may be considered in 

[, for example,] the decision whether to 

revoke probation. This is substantially 

similar to asking directly the due 

process question of whether and when it 

is fundamentally unfair or arbitrary for 

the State to revoke probation when an 

indigent is unable to pay the fine. 

Whether analyzed in terms of equal 

protection or due process, the issue 

cannot be resolved by resort to easy 

slogans or pigeonhole analysis, but 

rather requires a careful inquiry into 

such factors as 'the nature of the 

individual interest affected, the extent 

to which it is affected, the rationality 

of the connection between legislative 

means and purpose, [and] the existence of 

alternative means for effectuating the 

purpose . . . . I Williams v. Illinois, 

supra, 399 U.S., at 260, 90 S.Ct., at 

2031 (Harlan, J., concurring)." 

In a footnote, the Court indicated a preference for 

the due process approach: 

"A due process approach has the advantage 

in this context of directly confronting 

the intertwined question of the role that 

a defendant's financial background can 

play in determining an appropriate 

sentence. When the court is initially 

considering what sentence to impose, a 

defendant's level of financial resources 

is a point on a spectrum rather than a 

classification. Since indigency in this 

context is a relative term rather than a 

classification, fitting 'the problem of 
his case into an equal protection 

framework is a task too Procrustean to be 

rationaly accomplished,' North Carolina 

v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 

2072, 2079, 23 L.Ed.2d 656 (1969). The 

------ more aEproEriate --- ------ guestion ------- is whether 

consideration of a defendant's financial 

---- backqround .................... in setting or resetting a 

sentence is so arbitrary or unfair as to 

be a denial of due process." 

103 S.Ct. at 2069 n. 8, 76 L.Ed.2d at 229 n. 8. (emphasis 

added). We adopt this method of analysis as most suitable 

for evaluating the constitutionality of a particular 

sentencing procedure. As Justice Harlan warned in his 

concurring opinion in Williams, supra, the implications of 

subjecting sentencing procedures to scrutiny under the equal 

protection clause are ultimately impractical and disastrous: 

"[Equal protection] would require that 

the consequences of punishment be 

comparable for all individuals; the State 

would be forced to embark on the 

impossible task of developing a system of 

individualized fines, so that the total 

disutility of the entire fine, or the 

marginal disutility of the last dollar 

taken, would be the same for all 

individuals." 

Williams, supra, 399 U.S. at 261, 90 S.Ct. at 2052, 26 

L.Ed.2d at 604, (Harlen, J., concurring). Due process, on 

the other hand, shifts the focus from the unsettling nature 

of "equalization" to the more manageable principle of 

rationality or reasonableness. 399 U.S. at 260, 90 S.Ct. at 

2031, 26 L.Ed. 2d at 603. Thus, we assess the legality of 

an indigent defendant's sentence in light of fundamental 

fairness, implicitly recognizing the presumption in favor of 

individual liberty protected by the Due Process Clause. 

In the instant case, we believe the appellant's due 

process rights may have been violated. We grant the State a 

valid penological interest in seeking punishment, including 
the requirement of restitution and recoupment. We also 

recognize that a maximum ten-year sentence, suspended or 

otherwise, may, in certain instances, be acceptable as 

punishment. Nevertheless, we think it arbitrary and unfair 

in this case to subject the appellant to the maximum 

sentence simply because of an apparantly unsupported notion 

that he may not be able to make good on the recoupment and 

restitution within ten years. Considering the lack of 

findings regarding appellant's financial resources and his 

ability to reimburse the proper authorities, we think the 

judgment of the trial court should be reconsidered. The 

record indicates that indigency may have been the criterion 

for imposing the sentence in this particular case, and we 

therefore view the sentence in this instance as a possible 

infringement upon fundamental fairness. Cf. Bearden, supra, 

103 S.Ct. at 2072, 76 L.Ed.2d at 232 (due process offended 

when criminal defendant's probation is revoked solely 

because of indigency, especially when defendant has not been 

given an opportunity to complete requirements of 

restitution). 

We do not say that the appellant in the immediate case 

may not, under appropriate circumstances, be subjected to 

the maximum sentence available in law. Cf. Bearden, supra 

(state may revoke probation of indigent defendant and 

imprison him for failure to make bona fide efforts to pay 

fines and make restitution). Due process requires only that 

indigency or poverty not be used as the touchstone for 

imposing the maximum allowable punishment. Upon remand, the 

trial court is free to reconsider the possibility of a ten 

year suspended sentence, but only upon grounds which give 
fair consideration to Farrell's financial condition. 

In reaching this decision, we reject arguments by the 

State that the provisions of appellant's sentence, 

especially with respect to requirements of restitution and 

recoupment, are not ripe for review because there is as yet 

no concrete evidence of any hardships. These arguments 

misconceive the nature of this appeal. Farrell is attacking 

the underlying validity of his sentence, and as such, his 

appeal is properly before this Court. State ex rel. Greely 

v. District Court (1979), 180 Mont. 317, 327, 590 P.2d 1104, 

1110; State v. Simtob (1969) , 154 Mont. 286, 288, 462 P.2d 

873, 874. 

The conviction of Stephen Farrell is affirmed. The 

sentence is vacated, and the case is remanded for 

resentencing in accordance with this opinion. 

fr,& 

Justice 

We concur: 

;t,&JP a.m+ 

Chief Justice 

~istrict Judge, sitting in 

place of Mr. Justice Frank 

B. Morrison, Jr. 

Justice 

-18- 
Justice John C. Sheehy dissenting: 

It is an eccentric view of the law to recognize that 

recoupment of fraudulently acquired public moneys is a good 

thing, and yet to hold the District Court in error for 

stretching out a suspended sentence to make recoupment 

possible. 

It is more eccentric to hold that the suspended sentence 

must be set aside, not on equal protection grounds, but upon 

lack of due process. Here the District Court, balancing the 

propriety of recoupment for offense after offense, and the 

inability of defendant to pay within three years, simply 

stretched out the period to make payment by the Defendant 

feasible. Due process means fundamental fairness. Fundamentally, the District Court was eminently fair to the Defendant, in not assessing jail time which he richly deserved, 

and providing instead for recoupment within the term and 

ability of the Defendant to pay. 

Certainly, the District Judge here tried to ascertain 

the earning ability of the Defendant. The replies were "I 

really don't know." It is now remanded to find if defendant 

really, really did not know. 

This case does not involve sending a Defendant to jail 

because his indigency prevented the collection of a fine, as 

was involved in most of the cases relied on by the majority. 

It involves instead a humane and compassionate approach by a 

District Judge to accommodate the earning ability of the 

Defendant, and yet to protect the public's right to recoup- 
ment, and without jail time. If that is fundamentally 

unfair, our system of law is skewed. 

I dissent. I would affirm the District Court in all 

respects. 

Justdce 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

No. 82-391 

STATE V. FARRELL 

Dated: L, /985 

STATE OF MONTANA 
Mr. J-ustice Daniel J. Shea, dissenting: 

I dissent. The instructions given to the jury in this 

case were contradictory and confusing. The majority has 

ignored the law governing conflicting jury instructions. The 

iury was not only instructed on common scheme, it was 

instructed on another legal theory having no support in the 

evidence. But the majority ignores the problem created by 

simply stating that "the jury was properly instructed on the 

elements of theft . . . and on the concept of common scheme, 

and therefore had an acceptable legal basis upon which to 

consider the available evidence." But acceptable only if we 

turn our back on due process issues that inhere in 

coizflicting jury instructions or in legal theories where all. 

are not supported by substantial evidence. 

It may very well be true, that in some instances, where 

jury instructions, taken as a whole, state the law applicable 

to a case, a party cannot claim reversible error as to the 

giving of certain instructions. Goodnough v. State (Mont. 

1-982), 647 P.2d 364, 39 St.Rep 1170. Eut the test of a jury 

instruction is not what the ingenuity of counsel can make of 

it, but rather the ordinary understanding of the instructions 

taken as a whole. Brothers v. Surplus Tractor Parts 

Corporation (1973), 161 Mont. 412, 506 P.2d 1362. In that 

case we reversed and remanded for a new trial because the 

instructions were inconsistent and contradictory to each 

other to a degree that would confuse the average iuryman. 

Nor should the test of an instruction be what this Court on 

review can make of it. The jury may very well wend its way 

through a maze of evidence and instructions, assuming they 

are all reconcilable, not realizing that certain instructions 
are contradictory, and not realizing the verdic-iz was tempered 

by that contradiction. 

In McCullough v. Beech Aircraft Corp. (5th ~ir. 1979), 

587 F.2d 754, 759, the court remanded. the case because the 

District Court committed reversible error in giving 

instructions which effectively removed from the jury ' s 

consideration a necessary theory upon which it could have 

found liability: 

"If the charge as a whole leaves us with 

subst.a.ntia1 and ineradicable doubt whether the jury 

has been proper1.y guided in its deliberations it 

cannot stand. (Citations omitted. ) 

"In this case, the district court's jury charges 

was contradictory and may well have caused the 

jurors to misunderstand the issues presented to 

them for resolution." 

And in State v. Na.peahi (Kawaii 1976), 556 p.2~3. 569, 

576-577, the court reversed on certain charges because two 

instructions were contradictory and erroneous as a matter of 

law: 

"The instruction of the trial court was unfair and 

prejudicial to the defendant and was not cured by 

any other instruction given at trial. (Citation 

omitted) . An erroneous instructi.on, clearly 

prejudicial cannot be cured by another instruction 

which clearly states the law, but does not call the 

attention of the jury to the erroneous 

instruction. " 

I would. vacate the judgment and grant a new trial. 

/-