No. 92-088 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM GERALD LEISTIKO, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary G. Doran, Moore & Doran, Kalispell, Montana 

For Respondent: 

Marc Racicot, Attorney General ; Carol 

Schmidt, Assistant Attorney General; Thomas Esch, 

Flathead County Attorney, Kalispell, Montana 

Submitted on Briefs: October 14, 1992 

~~~id~d: December 17, 1992 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court 

Defendant William Gerald Leistiko appeals the Order of 

Revocation issued by the District Court of the Eleventh Judicial 

District, Flathead County. The Order of Revocation continued 

Leistiko's suspended sentence and required him to pay an additional 

$10,000 in restitution to the victim. We set aside the portion of 

the order requiring $10,000 additional restitution. 

The sole issue for our review is whether the District Court 

could order the defendant to pay $10,000 additional restitution 

after Leistiko violated the terms and conditions of his suspended 

sentence. 

William Gerald Leistiko (Leistiko) attended a New Year's Eve 

party on December 31, 1984, with his girlfriend. The couple argued 

throughout the evening and Leistiko subsequently left the party and 

returned with a 9 mm. automatic pistol, which was ultimately 

wrested from him by others at the party. He returned the morning 

of January 1, 1985, with a .22 semi-automatic pistol, and shot his 

girlfriend in the back as she attempted to phone law enforcement 

officers. The victim sustained injuries which caused permanent 

paralysis from the waist down. Leistiko was charged with 

aggravated assault and attempted deliberate homicide. 

The parties and the victim signed a pretrial agreement on July 

16, 1985, wherein Leistiko agreed to plead guilty to the charge of 

aggravated assault in exchange for the State's dropping the 

attempted deliberate homicide charge. On September 5, 1985, the 

District Court sentenced Leistiko to a twelve-year prison term with 

2 
nine years suspended and a consecutive five-year term for the use 

of a weapon. The court also imposed a $20,000 ltfineU as financial 

restitution to the victim, with monthly payments commencing one 

month after his release from Montana State Prison. 

While in prison, Leistiko paid $60 per month restitution from 

money he earned there, although this was not required by his 

sentence. After his parole on September 22, 1986, following 

thirteen months incarceration, he made monthly payments of $250 as 

required by his sentence. He later returned to his former 

employment and began making payments of $400 per month. At the 

time of the final revocation hearing, he had paid $12,400 of the 

$20,000 fine. 

On September 9, 1989, a random urinalysis tested positive for 

cocaine. Leistiko was given another chance on parole and entered 

Rocky Mountain Treatment Center in Great Falls on October 3, 1989. 

He completed chemical dependency treatment there and discharged his 

aftercare requirements on January 12, 1990. On February 8, 1990, 

another urinalysis tested positive for cocaine. The Board of 

Pardons then revoked Leistiko's parole and again incarcerated him 

in the Montana State Prison. 

On May 12, 1990, the State filed a petition to revoke 

Leistiko's suspended sentence. On May 23, 1990, the District Court 

conducted a hearing on the petition and found Leistiko in violation 

of terms of his suspended sentence, but reserved judgment with 

regard to that revocation until Leistiko completed an intensive 

addiction treatment program in prison. On December 6, 1990, the 
Court allowed Leistiko to continue this treatment at the Providence 

Center in Great Falls so that he could avail himself of the Great 

Falls Pre-release Center's programs. On August 11, 1991, Leistiko 

was discharged from the Great Falls Pre-release Center. 

On October 11, 1991, Leistiko filed a motion to reduce his 

monthly payments to $100 per month based on his financial 

situation. At the final revocation hearing, the District Court 

heard testimony from both the defendant and the victim as well as 

the recommendation from the prosecutor that justice would not be 

served by sending Leistiko back to prison. In an order dated 

December 10, 1990, the District Court continued the suspended 

sentence, allowed reduced payments of $100 for three months and 

increased the restitution by $10,000. 

I 

Did the District Court err when it ordered the defendant to 

pay an additional $10,000 to his victim after he violated the terms 

and conditions of his suspended sentence while on parole? 

~eistiko contends that the District Court had no authority to 

increase the original sentence by an additional $10,000 in 

restitution. He relies on the version of 5 46-18-203, MCA, which 

was in effect at the time of the crime and at the time of initial 

sentencing. Section 46-18-203, MCA (1983), then provided: 

 evocation of suspended or deferred sentence. (1) A judge . . . who has suspended the execution of a sentence . . . of 

imprisonment under 46-18-201 or his successor is authorized in 

his discretion to revoke the suspension or impose sentence and 

order the person committed. . . . 
However, the District Court relied on the 1991 revision of 5 46-18- 

203, MCA, in its sentencing order. It provides in pertinent part: 

 evocation of suspended or deferred sentence. (1) Upon the 

filing of a petition for revocation, accompanied by an 

affidavit showing probable cause that the defendant has 

violated any condition of a sentence . . . the court may issue 

an order for a hearing on revocation. , . . . . . (7) If the court finds that the defendant has violated the 

terms and conditions of the suspended or deferred sentence, 

the court may: 

(a) continue the suspended or deferred sentence without a 

change in conditions; 

(b) continue the sus~ended sentence with modified or 

additional terms and conditions; 

(c) revoke the suspension of sentence and require the 

defendant to serve either the sentence imposed or any lesser 

sentence . . . 

Section 46-18-203, MCA (1991), (emphasis supplied). 

Leistiko contends that he is entitled to the benefits of the 

former statute. Under the statute in effect when he committed the 

crime on January 1, 1985, the District Court could either continue 

the suspended sentence under the original terms, or revoke the 

suspended sentence and order a defendant to serve the remainder of 

his prison term. The 1991 revision of 5 46-18-203, MCA, grants 

authority to the district courts to add terms and conditions which 

are not part of the original sentence. 

That legislative grant of authority, however, cannot violate 

the constitutional rights of a defendant over whom the District 

Court has jurisdiction. Article I, Section 10 of the United States 

Constitution prevents state legislatures from enacting ex post 

facto legislation. Similarly, Article 11, Section 31 of the 

Montana Constitution prohibits the same. One of the United States 

Supreme Court's earliest opinions provides a definition of ex post 
facto laws and a rationale for the constitutional prohibition. See 

Calder v. Bull (1798), 3 Dall. 386, 3 U.S. 269, 1 L.Ed. 648. 

Justice Chase's opinion in Calder became well accepted as to those 

legislative acts which were prohibited by the ex post facto clause 

in Art. I, S 10 of the United States Constitution. This 

interpretation of the clause was subsequently summarized as 

follows: 

It is settled, by decisions of this Court so well known that 

their citation may be dispensed with, that any statute which 

punishes as a crime an act previously committed, which was 

innocent when done; which makes more burdensome the punishment 

for a crime, after its commission, or which deprives one 

charged with crime of any defense available according to law 

at the time when the act was committed, is prohibited as ex 

post facto. 

Beazellv. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 

216, (emphasis supplied). 

The Framers had a dual purpose in banning ex post facto 

legislation: (1) to give fair warning to individuals of what 

conduct is punishable, and (2) to restrain federal and state 

governments from enacting arbitrary and potentially vindictive 

legislation. Calder, 3 Dall. at 387-90. An increase in the 

severity of a criminal punishment compared with that authorized at 

the time the act was committed is a criminal conduct measure coming 

within the ban on ex post facto laws. Weaver v. Graham (1981) , 450 

U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.Zd, 17, 22. Critical to 

relief under the ex post facto clause is the lack of fair notice 

and governmental restraint when a legislature increases punishment 

beyond what was prescribed when the crime was committed. Weaver, 

450 U.S. at 30. 
We use a two-part test to determine whether a statute violates 

the ban on ex post facto laws: (1) the law must be retrospective, 

and (2) it must disadvantage the offender affected by it. Miller 

v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 

L.Ed.2d 351, 360-61. A law is retrospective if it changes the 

legal consequences of actions committed before its effective date. 

Miller, 482 U.S. at 430. At the time Leistiko shot his girlfriend, 

5 46-18-203, MCA, did not authorize the District Court to modify or 

add terms and conditions in a revocation proceeding. Clearly, the 

revised statute changes the legal consequences of Leistiko's crime 

by allowing the District Court to change the sentence. 

To meet the second prong of the test, the United States 

Supreme Court has said, "It is axiomatic that for a law to be ex 

post facto it must be more onerous than the prior law. " Dobbert v. 

Florida (1977), 432 U.S. 282, 294, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 

344, 357. The District Court's application of the new law here 

added $10,000 in restitution to be paid before the end of the 

suspended sentence. This puts a substantial additional burden upon 

Leistiko, both financially and in terms of violations which can 

subject him to additional incarceration. We conclude that the 

additional restitution ordered in this case constitutes an 

unconstitutional increase in punishment which Leistiko could not 

have foreseen at the time he committed the crime or when he entered 

into the plea agreement with the prosecutor before sentencing. We 

conclude that the District Court could not increase Leistiko's 

sentence by ordering $10,000 additional restitution. 
We hold that under Article I, Section 10 of the United States 

Constitution and Article 11, Section 31 of the Montana 

Constitution, the District Court could not order the defendant to 

pay his victim $10,000 additional restitution after the defendant 

violated the terms and conditions of his suspended sentence while 

on parole. 

Vacated in part. 

we concur: 
December 17, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Gary G. Doran 

Moore & Doran 

P.O. Box 1198 

Kalispell, MT 59903-1198 

Hon. Marc Racicot, Attorney General 

Carol Schmidt, Assistant 

Justice Bldg. 

Helena, MT 59620 

Ted 0. Lympus 

County Attorney 

P.O. Box 1516 

Kalispell, MT 59903-1516 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA