No. 85-558 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKIRT C. CARROLL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Patrick L. Pa.ul, County Attorney, Great Falls, 

Montana; Antonia P. Marra, Deputy County Attorney 

Submitted on Briefs: Feb. 20, 1986 

Decided: April 1, 1986 

Filed: 
Mr. Justice Frank 5. Morrison, Jr. delivered the Opinion of 

the Court. 

On July 2, 1985, defendant entered a plea of guilty to 

the charge of felony theft, in violation of S 45-6-301, MCA 

(1983). On August 2, 1985, the district judge sentenced 

defendant to five years in the Montana State Prison with the 

last two years suspended. Defendant appeals the sentence. 

The information filed in this case reveals that on the 

evening of March 23, 1985, d-efendant unlawfully entered the 

Medstar Towing garage in Great Falls, Montana, and stole 

equipment and tools valued in excess of $300. Defendant was 

charged with felony burglary pursuant to S 45-6-204 (1) , MCA 

(1983), and felony theft, pursuant to S 45-6-301(1) (a), MCA 

(1983). 

At his arraignment on July 2, 1985, defendant entered a 

plea of guilty to the theft charge; the burglary charge was 

dismissed under the terms of the plea agreement defendant 

entered into with the county attorney. Sentencing was scheduled for August 2, 1985. 

The pre-sentence report indicated that defendant was 20 

years old, did not complete high school, had no job skills, 

and had only slight income working part-time for his father. 

Defendant's prior criminal record consisted of three misdemeanor theft convictions. 

The sentence hearing was held August 2, 1985. At the 

hearing, defendant's counsel pointed out that although the 

victim had been reimbursed in the amount of $16,000 by his 

insurance company, defendant contended that the actual amount 

of goods stolen amounted to about $6,484.43. 

The district judge sentenced defendant to five years in 

the Montana State Prison with the last two years suspended. 

Additionally, defendant was ordered to pay restitution in the 
minimum amount of $6,484.43, or as much as he could pay 

during the suspended sentence, to attend alcohol and drug 

counseling during the suspended part of his sentence, and to 

enroll in a GED program. The district judge also recommended 

defendant he transferred to the Swan River Forest Camp as 

soon as space became available. In the sentencing order, the 

district judge noted: "The value of the property stolen is 

quite significant and it is questionable if restitution will 

ever be paid in this case. The Court concludes that a period 

of incarceration is required in this case for the protection 

of the property of other persons." 

On appeal, defendant raises the following issue: Did 

the District Court err when imposing the sentence by considering the inability of the appellant to pay restitution? 

Defendant asserts he was sentenced to a prison term 

primarily due to his inability to pay restitution, which 

violated his right to equal protection guaranteed by the 

Fourteenth Amendment. We disagree. 

An examination of the sentencing order and the transcript of the sentence hearing reveals no abuse of discretion 

by the district judge, nor any violations of defendant's 

constitutional rights. Section 45-6-301(5), MCA, provides 

that a person convicted of felony theft shall not be fined in 

excess of $50,000 nor imprisoned for a term exceeding 10 

years. Clearly, the sentence imposed in this case is well 

within these parameters. "This Court has consistently held 

that if a sentence is within the Limits provided by statute, 

it is not an abuse of discretion." State v. Lemrnon (Mont. 

19841, 692 P.2d 455, 41 St.Rep. 2359. 

Defendant argues he was sentenced to a prison term 

because of his indigency. However, the district judge specifically noted the prison term was necessary to protect the 
property of others, and that defendant's criminal record 

contained three previous misdemeanor thefts. These are 

sufficient reasons supporting incarceration and uphold this 

state's correctional policy "to protect society by preventing 

crime through punishment and rehabilitation of the convicted." Section 46-18-101, MCA. 

Defendant's argument taken to its logical end would 

prohibit the State from imposing a prison term upon an indigent defendant where restitution is arguably an alternative. 

Such a result would essentially eliminate punishment for the 

indigent defendant. In this case, the district judge sentenced defendant to a prison term to impress upon him that he 

cannot continually violate the laws of this state and escape 

incarceration. 

The conditions of the sentence given are designed to 

deter future criminal conduct and rehabilitate defendant in 

conformance with the correctional policy of the State of 

Montana. The District Court is affirmed. 

We concur: