No. 13872 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF PdONTANA, Plaintiff and Respondent,

-VSMERLIN T. BABBIT, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Smith, Connor,Van Valkenburg & Larrivee,Missoula,

Montana Noel Larrivee argued, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Brenda J. Gilmer argued and Marc F. Raciot argued,

Attorney General's dffice, Helena, Montana Robert L. Deschamps, I11 argued, County Attorney,

Missoula, Montana

Submitted: November 29, 1977 Decided:

## FEB1

# - 19aMr. Justice Gene B. 3aly delivered the Opinion of the Court.

Defendant Merlin T. Babbit

## , a nonindigent adult, appeals from a finaljudgment of conviction and order deferring imposition of sentence and establishing terms and conditions of probation. On February 

### 17, 1977, the Deputy County Attorney of Missoula County filed an Information in the District Court, Missoula County, charging defendant with the crime of criminal possession of dangerous drugs, weighing more than one gram, in violation of section 54-133, R.C.M. 1947. On March 3, 1977, arraignment proceedings were conducted in the District Court. Defendant entered a plea of guilty tothe crime as charged in the Information. A presentence investigation report was ordered by the District Court and the time for pronouncement of sentence was set forMarch 

### 17, 1977. On that date the District Court deferred the imposition of sentence by this order: "The Court ORDERS that the imposition of sentence be deferred for a period of two (2) years, and that during this period of time the Defendant shallcomply with the terms and conditions further set forth in this Order. "The terms and conditions of probation are: 

### "1. That this Court retainjurisdiction. "2. That the Defendant shallmake payment of Two Hundred Dollars ($200.00), to the County of Missoula, through the Clerk of District Court. "3. That the Defendant must obey instructions and comply with alldirections of the Department of Institutions, Division of Adult Parole and Probation of the State of Montana. 

### "4. That the Defendant shall submit himself, his residence and vehicle to search atany time by lawful authorities, without a searchwarrant."5. That the Defendant shallobtain alcoholic counseling deemed necessary by his Probation Officer. "6. That the Defendant shallnot violate the law. 7 That upon violation of any of the conditions above, Defendant shallbe brought before this Court for imposition of sentence." Atthe time the District Court announced the terms and conditions of probation, defendant made a timely and specific objection to the condition of probation requiring defendant make payment of $200 to the County of Missoula through the clerk of the District Court. The sole issuebefore this Court on appeal 

### iswhether the District Court may impose a payment of $200, payable to Missoula County, as a condition of probation afterdefendant plead guilty to the crime of criminal possession of dangerous drugs, a felony punishable by imprisonment in the stateprison not to exceed 5 years, and the District Court deferred imposition of sentence. InMontana deferred imposition of sentence 

### is controlled by Montana's sentencing statute, section 95-2206, R.C.M. 1947, (subsequently amended in Section 36, Chap. 184; Section 1, Chap. 436; Section 

### 1, Chap. 580; and Section 12, Chap. 584, Session Laws 1977). It provided in relevant part: "95-2206 --'Sentence. Whenever any person has been found guilty of a crime..or offense upon a verdict or a plea of guilty the court may: "(1) Defer imposition of sentence for a period not toexceed one (1) year for any misdemeanor; for a period not to exceed three 

### (3) years for any felony. The sentencingjudge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Such reasonable restrictions or conditions may include:

"(a) jailbase release; "(b) jail time not to exceed ninety (90) days;"

### (c) conditions forprobation; 

## "(d) restitution; "(e) any other reasonable conditionsdeemed necessary for rehabilitationor for the protection of society; "(f) any combinationof the above." Thus the issue becomes whether the payment of $200 to the County ofMissoula is a reasonable conditionof probation imposed for the objective of rehabilitation and the protection of society. This Court's reported caseswhich speak to the validity of conditions of probation subsequent to entry of a 

### guilty plea and deferred imposition of sentencehaw

### been limited almost entirely to defendantswho have challenged the District Court's revocationof deferred imposition of sentence. Petition ofDunn, (1971), 158Mont. 73, 

### 488 P.2d 902;Statev. Thorsness, (1974),

165Mont. 321, 528 P.2d 692; State v. Emmett, (1976), Mont

# .

, 557P.2d 289, 33 St.Rep. 1172. The cases inMontana specifically challenging conditions of probation imposed after entry of a plea of guilty and deferred imposition of sentence have attacked the imposition of jail time as a condition of probation. Statev. Openshaw, (1977), 

# - Mont

# . -3 

### 565 P.2d 319, 34 St.Rep. 516; State ex rel. Woodbury v. District Court, (1972), 159Mont. 128, 132, 495 P.2d 1119; Statev. Drew, (1971), 158Mont. 214, 217, 490P.2d 230. Our holding in these cases was that "in all cases when there are no special sentencing provisions thewide discretion of section 95-2206,R.C.M. 1947,applies." State ex rel. Woodbury, supra. "The court can impose conditions ofprobation during this time ofdeferment which arenot in contradiction to a stay of sentence or deferred sentence." State

### v. Drew, supra. However, this Court has notbeen called upon to consider the validity of a conditionof probation requiring the paymentof money toa court after entry of a plea of guilty and deferred imposition of sentence inaccord with section 95-2206. Other jurisdictions have considered the issue raisedby defendant with divergent conclusions. The courts of Arizona have taken the stance that in the absence of specific statutory language, where defendant has plead guilty toa felony towhich

no fine 

### is prescribed and imposition of sentence is suspended, it 

### is improper to impose a fine as a condition of probation. State

v. Pitts, (1976), 26 Ariz.App. 390, 548 P.2d 1202, 1203. California courts on the other hand, inupholding the imposition of fines as a condition of probation, have held a condition of probation willnot be invalid unless it "(1) has

no relationship to the crime of which the offender was convicted, (2) relates to conduct which isnot in itself criminal, and (3) requires or forbids conduct which isnot reasonably related to future criminality

# ***. I" People v. Lent, (1975), 124 Cal.Rptr. 905,908, 15C.A.3d 481, 541 P.2d 545,548. Under statutoryprovisions much the same as

## ont tan as, the California court seems to allow a fineunder our facts. However, the Lent case found a relationship to the crime of which defendant was convicted [theft]but allowed, as a condition of probation, a fine ina larger amount than restitution, which included the amount of a Count of .which defendant was acquitted. The Court of Appeals of Oregon, interpretingOregon statutes in Statev. Culbertson, 1977, 29 0r.App. 363, 563 P.2d 1224, 1229, held: 

### "*

# * * the standard against which the validity of conditions [of probation] imposed by the court or the probation officer 

### is tobe measured 

### iswhether they bear a reasonable relationship tothe reformation of the offender or the protection of the public." (Emphasis supplied.)The United StatesCourt of Appeals, Second Circuit, recently considered the subject of the validity of conditions of probation inUnited Statesv. Pastore, (2nd Cir, 1976), 

### 537 F.2d 675, 679, and noted: "The propriety of conditions on probation raises difficult issuesbecause the relevant standards, aswith sentencing generally, areeithervague or non-existent. 

# **

# *

"

# **

# * The Ninth Circuithas stated:

"I* 

# **judicial discretion inprobation matters 

### is limited only by ths requirement that the terms and conditions thereof bear '!a reasonable relationship to the treatment of the accused and the protection of the public."' United Statesv. Nu-Triumph, Inc., 500 F.2d 594, 596 (1974). Similarly, inPorth v. Ternplar, supra, atnote 15, the Tenth circuit stated: "'The sentencingjudge has a broad power to impose conditions designed to serve the accused and the community. The only limitation 

### is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public.

## "' (Emphasis supplied.) Defendant inhis reply brief on appeal contends

# "*** a fine could not be imposed inthis case. First, because the substantive statute (section 54-133) does not authorize a fine. Second, because a plain reading of the sentencing statute (section 95-2206) precludes the imposition of a fine." Section 54-133, R.C.M. 1947, 

### isnot the "substantive statute" controlling inthis case. Section 54-133 would be controlling only if the defendant were being sentenced for the crime to which he plead guilty. Here, sentence has been deferred and conditions of probation imposed pursuant to section 95-2206. Thus defendant 

### willnot be sentenced until defendant requests sentencing in lieuof probation orprobation is revoked because

### of defendant's violation of a conditionof probation. At the terminationof the time of deferment the District Court may accept a plea withdrawal, strike the plea of-guilty,and order the charge dismissed in accord with section 95-2207,R.C.M. 1947. State v. Drew, supra;Petition of Gray, (1973), 163Mont.

Section 95-2206 sets forth the guidelines of reasonableness, rehabilitation,and the protection of society as the criteria to be utilized in evaluating the conditions of probation. All jurisdictions heretofore discussed seem to agree with the guidelines set forth in section 95-2206,above set forth, even though

somehave less strict statutorymandates thanMontana. TheArizona Court in Pitts reasoned that: 

# "**

# * Imposition of a fine is the passing of a sen- 

### tence andnotthe suspensionof sentence. The fact that the court terms it a condition of probation does not render it any the less a sentence. We are not here dealing with a condition of probation which requires the defendant to make restitution to the crimevictim. rhatwould be a wholly different matter.I' 

### 548P.2d 1203. (Emphasis supplied- ) 

### TheArizona Court further reasoned that if a fine [ashere and not related to our guidelines] were to be allowed as merely a condition of probation, the default inpayment could result in revocation of probation and imprisonment for the maximum period allowed by the statute for the crime forwhich defendantwas convicted. In that event the failure to pay a small finemay result in defendant's imprisonment far exceeding the period ordinarily permitted. We agreewith the rationale of theArizona Court. We fail to find a reasonable association between the fine imposedhere and the crime committed. Neither do we find it to 

### be a reasonable

### ornecessary condition of probation or for protection of the public. Therefore, we 

### hold the imposition of condition of probation Number 2,which requires the payment of $200 to Missoula County

as a condition of probation, a nullity and of no force or effect.

We Concur: