97-041

 No. 97-041

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1997

STATE OF MONTANA,

 

 Plaintiff and Respondent, 

 v.

 

 JEREMY CORD WOODS, 

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

 In and for the County of Lewis and Clark,

 The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Jeremy Cord Woods, Deer Lodge, Montana (pro se)

 For Respondent:

 Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant 

Attorney

 General, Helena, Montana; Mike McGrath, Lewis and Clark County

 Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena,

Montana.

 Submitted on Briefs: September 4, 1997

 Decided: December 23, 1997

Filed:

 __________________________________________

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 Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

 Jeremy Cord Woods (Appellant) appeals from an order of the First Judicial 

District

Court, Lewis and Clark County, granting the Stateþs petition for destruction of 

evidence

held by the Helena Police Department. We affirm.

 We frame the issues on appeal as follows:

 1. Did the District Court err when it imposed restitution as part of the

underlying sentence?

 2. Did the District Court err when it granted the Stateþs petition for 

destruction

of evidence?

 3. Was Appellantþs restitution obligation discharged in his Chapter 7

bankruptcy proceeding?

 4. Did the District Court err when it failed to appoint counsel to 

represent

Appellant in this proceeding?

 BACKGROUND

 On November 5, 1993, Appellant was charged by information with issuing a bad

check, a felony in violation of õ 45-6-316, MCA. The information alleged that on

October 13, 1993, Appellant issued a check on his account at Seafirst Bank in

Washington to Norwest Bank in Helena, Montana, for $3,830.00, knowing that it would

not be paid by the depository. On January 6, 1994, he pled guilty.

 After further investigation, it was discovered that Appellant had written over

$30,000.00 worth of bad checks during a check writing þspree.þ Appellant was still

writing bad checks as of the date his probation officer had prepared the presentence

investigation. That probation officer recommended that the court require Appellant 

to

make full restitution for all bad checks, once all checks were accounted for. The 

officer

estimated that the checks amounted to þtens of thousandsþ of dollars.

 Following receipt of the presentence investigation, Appellant prepared a 

þReport

to the Court [and] Defendantþs Corrections of Presentence Investigation.þ Appellant 

did

not dispute the probation officerþs conclusion regarding the amount of bad checks 

written,

and he did not dispute the recommendation that he make full restitution. To the 

contrary,

Appellant apologized to the banks and merchants he defrauded and agreed to make full

restitution. 

 Appellant subsequently pled guilty to two additional offenses, theft and bail

jumping, that he committed after the original charge was filed. On May 26, 1994, the

court sentenced Appellant to ten years at the Montana State Prison on the bad check

charge. For the two additional charges, the court sentenced him to two five-year 

terms,

both suspended. The suspended portions of his sentence were to run concurrently with

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each other, but consecutively to his ten-year prison sentence. The court also 

ordered

Appellant to pay full restitution, as determined by the courtþs restitution 

officer. The

restitution officer determined that the restitution totaled $35,823.49. Appellant 

did not

appeal his conviction or sentence.

 On July 15, 1996, the State filed a petition for destruction of evidence, 

requesting

that merchandise seized by the Helena Police Department following Appellantþs arrest 

in

October 1993, be returned to their rightful owner and that the value of those 

returned

items as well as currency that was seized be applied towards Appellantþs restitution

obligation. The State alleged that the items it proposed to return þwere either 

identified

by merchants or [Appellant] or his girlfriend who was present when the checks were

written as having been purchased with the bad checks.þ Those items included four

firearms, ammunition, gun cleaning equipment, a holster, a TV/radio, jewelry, tools,

compact discs, cassette tapes, clothing, videos, a Sony discman, speakers, 

headphones,

amplifiers, cassette decks, other stereo equipment, a Chevrolet Nova automobile, a

scanner, and cash in excess of $9,000.00. The State also proposed to return some

personal items to Appellant, and to destroy a few remaining items, such as 

miscellaneous

receipts, adult magazines, identification papers and keys.

 Appellant contested the petition and requested that the court appoint 

counsel to

represent him. The District Court denied his request for counsel on the basis that

þWoods [was] not facing further incarceration or additional punishment.. . .þ 

Appellant

appealed the denial of his request for an attorney to this Court. This Court 

concluded

that Appellantþs substantial rights were not affected by the District Courtþs 

refusal to

appoint counsel to represent him, and that consequently his appeal was not 

authorized by

õ 46-20-104(1), MCA. Accordingly, this Court dismissed the appeal. 

 The District Court subsequently granted the Stateþs petition for destruction 

of

evidence, but stayed execution of the order pending final disposition by this Court. 

On

December 17, 1996, Appellant filed a notice of appeal from the District Courtþs order

and also requested that this Court appoint counsel to represent him in presenting his

appeal. On February 24, 1997, we denied his request for appointment of counsel. We

explained that his entitlement to counsel under õ 46-8-104, MCA, was dependent upon

the existence of a criminal action or proceeding. We noted that the petition for

destruction of evidence is not a criminal proceeding, and Appellant, who was 

sentenced

and convicted nearly two years prior to the filing of the petition, faced no 

additional

charges, incarceration or punishment. Thereafter, Appellant filed his appellate 

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brief pro

se. 

 STANDARD OF REVIEW

 We review issues of law to determine whether the courtþs interpretation and

application of the law is correct. Peters v. State (Mont. 1997), __ P.2d __, __, 54 

St.

Rep. 1185, 1186. 

 ISSUE ONE

 Did the District Court err when it imposed restitution as part of the 

underlying

sentence?

 Appellant contends that the District Court erred when it imposed restitution 

as part

of his sentence in May 1994. He claims that the presentence investigation report 

did not

contain any documentation of the victimsþ pecuniary loss and did not reference his

financial resources or ability to pay restitution, as required by õ 46-18-242, MCA. 

Additionally, he insists that because he was only found guilty of issuing one bad 

check

in the amount of $3,830.00, his restitution obligation should be limited to that 

amount. 

He maintains that the District Court therefore erred in setting his restitution 

obligation to

an amount over $35,000.00 . 

 This Court has no jurisdiction to hear this issue. The rules of appellate 

procedure

provide that a notice of appeal must be filed within 60 days from the date of a 

criminal

judgment. Rule 5(b), M.R.App.P. In this case, the District Court ordered 

restitution on

May 26, 1994, and Appellant did not appeal that judgment. The current notice of 

appeal

from the order granting the Stateþs petition for destruction of evidence, was filed 

on

December 17, 1996. Because his right to appeal the 1994 judgment against him expired

more than two years ago, he cannot now raise the issue in this latest and unrelated

appeal. State v. Rice (1996), 275 Mont. 81, 85, 910 P.2d 245, 246 (citing State v.

Haskins (1992), 255 Mont. 202, 841 P.2d 542). 

 ISSUE TWO 

 Did the District Court err when it granted the Stateþs petition for 

destruction of

evidence?

 Appellant contends that the District Court erred by granting the Stateþs 

petition for

destruction of evidence, because in so doing, the District Court allowed the State 

þto

convert [his] personal propertyþ in excess of the actual pecuniary loss of $3,830.00

caused by his crime. He maintains that such an order violates his constitutional 

rights

embodied in Article II, Sections 3, 4, 15, 17, and 22 of the Montana State 

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Constitution

and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. 

 We have already held, however, that Appellant waived any arguments regarding

the amount of his restitution obligation when he failed to timely appeal the 

underlying

judgment. Furthermore, at the time of sentencing, Appellant fully understood and

accepted responsibility for repaying all the banks and merchants whom he defrauded. 

In

response to the probation officerþs recommendation that Appellant pay full 

restitution,

which was in the þtens of thousandsþ of dollars, Appellant stated in his þReport to 

the

Court [and] Defendantþs Corrections of Presentence Investigationþ: 

 In my period of incarceration I have had much time to think and

 evaluate myself as a whole. I wish to begin by saying þIþm sorry.þ I want

 to make my apologies to everyone involved and ask for your forgiveness. 

 To the banks and merchants, I will make the necessary arrangements to

 make reparation to you all. Please be patient, there is a considerable sum

 to repay. I will do my best to return the money as quickly as possible.

Accordingly, because Appellant waived any argument challenging the amount of his

restitution obligation, and indeed fully accepted responsibility for making full 

restitution

at the time of sentencing, we hold that the lower court did not err in ordering 

property

with a value in excess of $3,830.00 be returned to the defrauded merchants. 

 Appellant next contends that the State misinterprets the District Courtþs 

restitution

order by seeking restitution in an amount over $3,830.00. Appellant is wrong. As we

have already pointed out, the District Courtþs order did not limit restitution to 

the amount

for that one bad check. Rather, it ordered Appellant to þpay full restitutionþ in an

amount to be determined by the restitution officer after all the bad checks had been 

fully

accounted for. Finally, Appellant maintains that the Stateþs petition was 

untimely. 

He contends that because his restitution obligation was made a condition of the 

suspended

portions of his sentence, he is not required to pay restitution until he is released 

from

prison. However, Appellant misapprehends the nature and purpose of the present

proceedings. Appellant, who is incarcerated and has no income, is not being ordered 

to

presently pay restitution from any earnings, and the failure to fully pay 

restitution at this

time will not result in the revocation of the suspended portions of his sentence. 

What is

at issue here is the manner in which to dispose of evidence seized by the police. 

Such

evidence is the fruit of Appellantþs crimes and does not rightfully belong to him. 

The

procedure employed by the State provides the means for appropriating or disposing of

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such evidence when prosection is complete and no further legal proceedings are

contemplated. See õõ 46-5-306 through 46-5-309, MCA. Although the State has

characterized the proceeding as a þpetition for destruction of evidence,þ the 

majority of

the items are not actually being destroyed. The record shows that instead, the cash 

will

be turned over to the restitution department to reimburse Appellantþs victims, and 

the

consumer items will be returned to the merchants whom Appellant defrauded. As a part

of the proceeding, the State has appropriately requested that the returned assets be 

applied

towards Appellantþs restitution obligation. Allowing Appellant to keep the fruits 

of his

crimes, simply because he has not yet been released from prison and has not yet begun

to serve the suspended portions of his sentence, flies in the face of all notions of 

justice

and has no basis in the law. We hold that the District Court did not err when it 

granted

the Stateþs petition. 

ISSUE THREE

 Was Appellantþs restitution obligation discharged in his Chapter 7 bankruptcy

proceeding?

 Appellant contends that the lower court erred when it failed to account for 

his

Chapter 7 bankruptcy proceeding, which was pending when the State filed the petition 

for

destruction of evidence. He cites Pennsylvania Department of Public Welfare v.

Davenport (1990), 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d 588, and argues that his

restitution obligation was discharged. According to Appellant, the District Court

therefore had no authority to grant the Stateþs petition.

 The State contends that Appellant waived any argument that his restitution

obligation was discharged in bankruptcy, because he failed to raise that issue to the

District Court and now presents it to this Court for the first time on appeal. 

However,

the bankruptcy court did not issue the discharge order until January 9, 1997, one 

month

after the District Court granted the petition on December 11, 1996. Appellant thus 

could

not have argued to the District Court that his restitution obligation was 

discharged. We

hold that Appellant did not waive this argument, and we address the merits of his

contention.

 We reject Appellantþs argument that a discharge order in a Chapter 7 

bankruptcy

proceeding also discharges restitution obligations imposed by a criminal court. In 

a case

directly on point, the United States Supreme Court ruled to the contrary. In Kelly 

v.

Robinson (1986), 479 U.S. 36, 50, 107 S.Ct. 353, 361, 93 L.Ed.2d 216, 229, the United

States Supreme Court held that õ 523(a)(7) of the Bankruptcy Code, which excepts 

certain

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debts from discharge, þpreserves from discharge any condition a state criminal court

imposes as part of a criminal sentence.þ Accordingly, restitution obligations 

imposed as

a condition of probation in state criminal actions are nondischargeable in 

proceedings

under Chapter 7 of the Bankruptcy Code, 11 U.S.C. õ 701 et seq. Kelly, 479 U.S. at

53. The Court based its decision on the stateþs interest in unfettered 

administration of its

criminal justice system; the historical construction of the earlier Bankruptcy Act 

of 1898

that excepted restitution orders from discharge; and the absence of any evidence that

Congress intended to change that construction when it enacted the Bankruptcy Code in

1978. Kelly, 479 U.S. at 53.

 Appellant relies on Davenport, but that case is not applicable for two 

reasons. 

First, that case involved Chapter 13, not Chapter 7, proceedings. In Davenport, the

Supreme Court held that restitution obligations constituted dischargeable þdebtsþ 

within

the meaning of the Bankruptcy Code, 11 U.S.C. õ 101(11). Davenport, 495 U.S. at 

555. 

 Because the statutory exception to discharge of debts relied on in Kelly, õ 523(a)

(7),

does not extend to Chapter 13 proceedings, the Supreme Court concluded that 

restitution

payments are dischargeable pursuant to Chapter 13. Davenport, 495 U.S. at 555. In 

so

ruling, however, the Supreme Court emphasized that its decision þdoes not signal a

retreat from the principles applied in Kelly.þ Davenport, 495 U.S. at 563. Because

Appellantþs case involved Chapter 7 and not Chapter 13 bankruptcy proceedings, Kelly

controls. 

 In any event, Davenport is no longer good authority for the proposition that

restitution obligations are dischargeable even in Chapter 13 proceedings. In 

response to

Davenport, Congress amended Chapter 13 to specifically exclude from discharge a

restitution obligation included in a criminal sentence. See Criminal Victims 

Protection

Act of 1990, Pub.L. 101-581, õ 3, 104 Stat. 2865, codified at 11 U.S.C. õ 1328(a)

(3). 

The Davenport result has thus been overruled by statute. We therefore hold that

Appellantþs restitution obligation was not discharged by the order of the Bankruptcy

Court. 

 ISSUE FOUR

 Did the District Court err when it failed to appoint counsel to represent 

Appellant

in this proceeding?

 Appellant maintains that he is entitled to representation by an attorney in 

presenting

his appeal. He contends that the District Court violated õ 46-8-104, MCA, as well 

as the

right to counsel guaranteed by the Montana State Constitution and the United States

Constitution. The State, on the other hand, contends that the doctrine of res 

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judicata

precludes Appellant from raising that issue. We agree with the State that Appellant 

is not

entitled to relitigate that issue.

 In Scott v. Scott (Mont. 1997), 939 P.2d 998, 54 St. Rep. 548, we defined the

doctrine of res judicata to be þa final judgment which, when rendered on the merits, 

is

an absolute bar to a subsequent action between the same parties or those in privity 

with

them, upon the same claim or demand.þ Scott, 939 P.2d at 1001 (citing Fiscus v.

Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197). 

In this case, we have already held that Appellant is not entitled to appointment of 

counsel

pursuant to õ 46-8-104, MCA. On December 17, 1996, Appellant filed a motion for

appointment of counsel and by order filed February 24, 1997, this Court denied that

motion for the same reasons that the District Court below denied his motion. We 

stated:

 We are now presented with essentially the same requests presented to the

 District Court. In addition, these requests are made within essentially the

 same context as was present below. We will resolve this matter in much

 the same manner as did the District Court:

 Woodsþ entitlement to counsel under õ 46-8-104, MCA is dependent

 upon the existence of a criminal action or proceeding. However, the

 petition for destruction of evidence, brought pursuant to õõ 46-5-306

 through 46-5-309, MCA, is not a criminal action or proceeding, as

 indicated by the stated purpose of the statutes and as established by the

 relevant facts: Woods was convicted and sentenced for issuing bad checks

 nearly two years ago, and faces no additional charges, incarceration, or

 punishment related to that conviction. Therefore, this Court concludes that

 Woods is not entitled to appointment of counsel.

Our earlier holding is now res judicata, and we will not revisit it on appeal. The 

order

of the District Court denying Appellantþs motion for appointment of counsel is 

affirmed.

 Affirmed.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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