No. 85-558 INTHE 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 theEighth JudicialDistrict, In and fortheCounty of Cascade, The HonorableJoel Roth, Judge presiding.
COUNSEL OF RECORD:
ForAppellant: John Keith, Great Falls, Montana
For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana JoeR. Roberts, Asst. Atty. General, Helena Patrick L. Pa.ul, County Attorney, Great Falls, Montana; Antonia P. Marra, Deputy County Attorney

Submittedon 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-efendantunlawfully entered the Medstar Towing garage in Great Falls, Montana, and stole equipment and toolsvalued in excess of $300. Defendantwas charged with felony burglary pursuant to S 45-6-204(1)

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(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. Sentencingwas scheduled forAugust 2, 1985. The pre-sentence report indicated that defendantwas 20 years old, did not complete high school,had no job skills, and had only slight income working part-time forhis 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 stolenamounted 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, defendantwas ordered topay restitution in theminimum 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 soonas spacebecame available. In the sentencingorder, the district judge noted: "The value of the property stolen is quite significant and it isquestionable if restitutionwill
everbe paid in this case. The Court concludes that aperiod of incarceration is required in this case for the protection of the property of otherpersons." On appeal, defendant raises the following issue: Did the District Court err when imposing the sentenceby 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 FourteenthAmendment. We disagree. An examination of the sentencing order and the transcriptof the sentencehearing reveals no abuse ofdiscretion 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 shallnotbe 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 iswithin the Limits provided by statute, it is not an abuse of discretion." State 

### v. Lemrnon (Mont. 19841,692P.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 termwas necessary toprotect theproperty of others, and that defendant's criminal record contained three previous misdemeanor thefts. These are sufficient reasons supporting incarceration and uphold this state's correctionalpolicy "toprotect societyby 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 defendantwhere restitution is arguably an alternative. Such a result would essentially eliminatepunishment for the indigent defendant. In this case, the district judge sentenced defendant to aprison term to impress upon him thathe 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: