NO. 92-325 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDOUGLAS C. MITCHELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bradley B. Parrish, Attorney at Law, Lewistown, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, John Paulson, 

Assistant Attorney General, Helena, Montana 

Thomas P. Meissner, Fergus County Attorney, 

Lewistown, Montana 

Submitted on Briefs: December 22, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

Douglas C. Mitchell appeals from an order of the Tenth 

~udicial ~istrict Court, Fergus County, denying his Motion to Amend 

Sentence. We affirm on procedural grounds. 

Appellant Mitchell presents the issue as whether the District 

Court erred in ordering the payment of interest as part of 

restitution. 

On February 12, 1991, Mitchell entered a plea of guilty to the 

offense of felony robbery of the Norwest Bank of Lewistown, 

Montana. The District Court subsequently held a sentencing hearing 

and, on May 30, 1991, entered a sentencing order. As part of his 

sentence, appellant was ordered to pay restitution in the amount 

taken from the bank, together with interest thereon at the rate of 

10% from the date of the robbery. No objection was made to the 

sentence; no appeal was taken. 

On April 8, 1992, some ten months after the original 

sentencing order, appellant moved the District Court to amend the 

restitution portion of his sentence. He asserted that neither 

statute nor case law authorized interest as part of restitution and 

contended for equitable consideration on the basis of his inability 

to pay the interest. The District Court determined that it was 

reasonable to include the interest expense associated with the loss 

of money in restitution and denied the motion. This appeal 

followed. 

Appellant raises a number of legal arguments in support of his 

contention that a district court may not include as restitution 

2 
interest on the amount of money stolen. We decline to address this 

issue on the merits. 

Appellant's legal arguments challenging the validity of the 

inclusion of interest as part of restitution in the original 

sentence could and should have been raised on appeal from the 

original sentencing order dated May 30, 1991. No appeal having 

been taken, we will not consider the arguments here. 

We note that 5 46-18-246, MCA (1989), provided Mitchell an 

alternative avenue for modification of the restitution portion of 

his sentence. That statute allows an offender to petition the 

sentencing court at any time "to adjust or otherwise waive payment 

of any part of any ordered restitution" on essentially equitable 

grounds. - Id. However, Mitchell did not petition the court 

pursuant to the terms of 5 46-18-246, MCA. As a result, it appears 

that the statute's procedural requirements were not met; 

furthermore, the court did not act pursuant to the statute in 

denying Mitchell's motion. 

For these procedural reasons, we affirm the District Court's 

denial of appellant's motion. 

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

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

January 12, 1993 

CERTIFICATE OF SERVICE 

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

named: 

BRADLEY B. PARRISH 

Attorney at Law 

209 Bank Electric Bldg. 

Lewistown, MT 59437 

HON. MARC RACICOT, Attorney General 

John Paulson, Assistant 

Justice Bidg. 

Helena, MT 59620 

THOMAS P. MEISSNER 

Fergus County Attorney 

Fergus County Courthouse 

Lewistown, MT 59457 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY YhJA 

Depu