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 : FEB 1 - 19a 
Mr. Justice Gene B. 3aly delivered the Opinion of the Court. 

Defendant Merlin T. Babbit , a nonindigent adult, appeals 

from a final judgment 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 to the 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 for March 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 shall comply 

with the terms and conditions further set forth in 

this Order. 

"The terms and conditions of probation are: 

"1. That this Court retain jurisdiction. 

"2. That the Defendant shall make 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 all directions 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 at any time by 

lawful authorities, without a search warrant. 
"5. That the Defendant shall obtain alcoholic 

counseling deemed necessary by his Probation Officer. 

"6. That the Defendant shall not violate the law. 

7 That upon violation of any of the conditions 

above, Defendant shall be brought before this Court 

for imposition of sentence." 

At the 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 issue before this Court on appeal is whether 

the District Court may impose a payment of $200, payable to 

Missoula County, as a condition of probation after defendant 

plead guilty to the crime of criminal possession of dangerous 

drugs, a felony punishable by imprisonment in the state prison 

not to exceed 5 years, and the District Court deferred imposition of sentence. 

In Montana 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 

to exceed one (1) year for any misdemeanor; for a 

period not to exceed three (3) years for any felony. 

The sentencing judge 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) jail base release; 

"(b) jail time not to exceed ninety (90) days; 
" (c) conditions for probation; 

" (d) restitution; 

"(e) any other reasonable conditions deemed 

necessary for rehabilitation or for the protection 

of society; 

"(f) any combination of the above." 

Thus the issue becomes whether the payment of $200 to the 

County of Missoula is a reasonable condition of probation 

imposed for the objective of rehabilitation and the protection 

of society. 

This Court's reported cases which speak to the validity 

of conditions of probation subsequent to entry of a guilty plea 

and deferred imposition of sentence haw been limited almost 

entirely to defendants who have challenged the District Court's 

revocation of deferred imposition of sentence. Petition of Dunn, 

(1971), 158 Mont. 73, 488 P.2d 902; State v. Thorsness, (1974), 

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

, 557 P.2d 289, 33 St.Rep. 1172. The cases in Montana 

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. State v. Openshaw, (1977), - Mont . -3 565 P.2d 

319, 34 St.Rep. 516; State ex rel. Woodbury v. District Court, 

(1972), 159 Mont. 128, 132, 495 P.2d 1119; State v. Drew, (1971), 

158 Mont. 214, 217, 490 P.2d 230. 

Our holding in these cases was that "in all cases when 

there are no special sentencing provisions the wide discretion 

of section 95-2206, R.C.M. 1947, applies." State ex rel. Woodbury, 

supra. "The court can impose conditions of probation during 

this time of deferment which are not in contradiction to a 

stay of sentence or deferred sentence." State v. Drew, supra. 

However, this Court has not been called upon to consider 

the validity of a condition of probation requiring the payment 
of money to a court after entry of a plea of guilty and 

deferred imposition of sentence in accord with section 95-2206. 

Other jurisdictions have considered the issue raised by 

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 to a felony to which 

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, in upholding the 

imposition of fines as a condition of probation, have held a 

condition of probation will not be invalid unless it "(1) has 

no relationship to the crime of which the of fender was convicted, (2) relates to conduct which is not in itself criminal, 

and (3) requires or forbids conduct which is not reasonably 

related to future criminality * * *. I" People v. Lent, (1975), 

124 Cal.Rptr. 905,908, 15 C.A.3d 481, 541 P.2d 545,548. 

Under statutory provisions much the same as ont tan as, 

the California court seems to allow a fine under 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 in a larger amount than restitution, 

which included the amount of a Count of .which defendant was 

acquitted. 

The Court of Appeals of Oregon, interpreting Oregon statutes 

in State v. 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 to be measured is whether 

they bear a reasonable relationship to the reformation of the offender or the protection of the public." 

(Emphasis supplied.) 
The United States Court of Appeals, Second Circuit, 

recently considered the subject of the validity of conditions 

of probation in United States v. Pastore, (2nd Cir, 1976), 537 

F.2d 675, 679, and noted: 

"The propriety of conditions on probation raises 

difficult issues because the relevant standards, 

as with sentencing generally, are either vague or 

non-existent. * * * 

" * * * The Ninth Circuit has stated: 

"I* * * judicial discretion in probation 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 States v. Nu-Triumph, 

Inc., 500 F.2d 594, 596 (1974). Similarly, in Porth 

v. Ternplar, supra, at note 15, the Tenth circuit 

stated: 

"'The sentencing judge 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 in his reply brief on appeal contends "* * * a 

fine could not be imposed in this 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, is not the "substantive statute" 

controlling in this 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 will not be sentenced until defendant requests 

sentencing in lieu of probation or probation is revoked because 
of defendant's violation of a condition of probation. At the 

termination of 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), 163 Mont. 

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 

some have less strict statutory mandates than Montana. 

The Arizona Court in Pitts reasoned that: 

"* * * Imposition of a fine is the passing - of a sentence and not the suspension of 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 crime victim. rhat would be a wholly different 

matter .I' 548 P. 2d 1203. (Emphasis supplied- ) 

The Arizona Court further reasoned that if a fine [as here and 

not related to our guidelines] were to be allowed as merely a 

condition of probation, the default in payment could result in 

revocation of probation and imprisonment for the maximum period 

allowed by the statute for the crime for which defendant was 

convicted. In that event the failure to pay a small fine may 

result in defendant's imprisonment far exceeding the period 

ordinarily permitted. 

We agree with the rationale of the Arizona Court. We fail 

to find a reasonable association between the fine imposed here 

and the crime committed. Neither do we find it to be a reasonable 
or necessary 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: