97-363

No. 97-363

IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1998 MT 97N

STATE OF MONTANA,

 

Plaintiff and Respondent, 

v.

 

JESSICA TODD, 

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:

Lawrence A. LaFountain, Great Falls, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein,

Assistant Attorney General; Brant Light, Cascade County

Attorney, James Donahue,Deputy Cascade County Attorney, Great

Falls, Montana

Submitted on Briefs: March 12, 1998

Decided: April 30, 1998

Filed:

 __________________________________________

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 Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996

Operating Rules, the following decision shall not be cited as precedent but

shall be filed as a public document with the Clerk of the Supreme Court and

shall be reported by case title, Supreme Court cause number, and result to the

State Reporter Publishing Company and to West Group in the quarterly table

of noncitable cases by this Court.

¶2 In December 1995, Jessica Todd (Appellant) rolled her car. 

Appellant's car was "totaled" and worth only $25 after the accident. A

Montana Highway Patrolman responded to the scene and called Guy Chilson,

owner of Tri-G's Towing and Repair (Chilson), to come and tow Appellant's

car. Chilson towed the car and stored it on his lot for approximately three

months. Chilson testified he was prevented from disposing of the car because

he was unable to obtain the title. On March 11, 1996, Appellant paid Chilson

$1250 for his services including $475 for the towing and cleanup of the

accident site, and $775 for the storage of her car. Appellant's check bounced.

¶3 On January 27, 1997, pursuant to a plea bargain agreement, Appellant

pled guilty to the charge of issuing a bad check. A sentencing hearing was

held on February 25, 1997. The Eighth Judicial District Court, Cascade

County, gave Appellant a one-year deferred sentence and imposed restitution

in the amount of $1275. This amount included $1250 for the bad check and

$25 for the insufficient funds fee that Chilson paid the bank. Appellant

appeals the restitution portion of her sentence. We affirm.

¶4 We review the imposition of a sentence for legality only. State v.

Richards (1997), 54 St. Rep. 1172, 1173, Mont. , 948 P.2d 240, 241. 

The standard of review on sentence legality is whether the district court abused

its discretion. Richards, 948 P.2d at 241. 

¶5 Appellant cites Draper v. Coombs (9th Cir. (Or.) 1986), 792 F.2d 915,

923, and argues that she should pay no restitution because her due process

rights were violated when Chilson, acting under color of state law, towed her

car and she was not given an opportunity to challenge this state action before

a neutral magistrate. Appellant failed to raise this argument at her sentencing

and, therefore, we decline to address it on appeal. State v. Woods (1997), 283

Mont. 359, 372, 942 P.2d 88, 96-97.

¶6 Appellant asserts that the restitution she is required to pay is overstated

by $775, the amount charged for storage, and that she should be required to

pay only $475 for the towing and $25 for the insufficient funds fee. Appellant

bases her assertion on several arguments, one of which pertains to Montana's

restitution statutes, §§ 46-18-241 and -243, MCA. The issue raised by this

argument is dispositive.

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¶7 Section 46-18-241(1), MCA, provides:

 As provided in 46-18-201, a sentencing court shall require an

 offender to make full restitution to any victim of the offense

 who has sustained pecuniary loss as a result of the offense . . .

Section 46-18-243(1)(a), MCA, defines "pecuniary loss" as the following:

 all special damages, but not general damages, substantiated by

 evidence in the record, that a person could recover against the

 offender in a civil action arising out of the facts or events

 constituting the offender's criminal activities . . . .

Appellant argues that the storage fee does not meet the definition of pecuniary

loss because (1) the storage resulted independently of the crime of writing a

bad check and, therefore, did not "arise out of the facts or events constituting

the offender's criminal activities"; and (2) Chilson suffered no loss because his

lot was not filled to capacity when Appellant's car was stored there. 

Appellant's claims have no merit.

¶8 The fact that Chilson's lot was not filled to capacity during the storage

of Appellant's car is not relevant to the issue of whether Chilson suffered a

pecuniary loss. Chilson provided Appellant the services of towing and storing

her car. By writing a check for $1250, Appellant acknowledged and agreed

to pay for those services. Appellant's check bounced and she pled guilty to

the charge of issuing a bad check. Chilson suffered damages in the amount of

the check, $1250, and the insufficient funds fee assessed by the bank, $25. 

Because these damages arose out of Appellant's crime of issuing a bad check,

the damages constitute Chilson's pecuniary loss. Section 46-18-243(1)(a),

MCA. Chilson suffered a pecuniary loss of $1275.

¶9 We hold the District Court did not abuse its discretion in ordering

Appellant to pay Chilson $1275 in restitution. Affirmed.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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