 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Thaut12/20/2004
h the Department of Corrections, instead of through the Clerk of Court. The dissent is incorrect in its supposition "if [Thaut] fails to meet the restitution obligations of his revised sentence, any parole or probation which he is granted will likely be revoked." 44. Both the parole and probation revocation statutes still provide for consideration of an offender's ability to pay during any revocation proceeding. See § 46-23-1025(3), MCA; § 46-18-203(6), MCA. If at such time Thaut can demonstrate his "failure to pay restitution was not attributable to a failure on his part to make a good faith effort to obtain sufficient means to make the restitution payments," his violation may be excused by the court, and the petition to revoke must be dismissed. Section 46-18-203(6), MCA.
We conclude Thaut lacks proper standing to raise the stated constitutional issues on appeal because he has not shown a direct, personal injury resulting from application of the restitution statutes, nor has he shown a threat of such injury. As our determination that Thaut lacks standing is dispositive, we decline to address his constitutional challenges to the amended statutes.
ISSUE TWO
Did the District Court err in fixing the amount of Thaut's restitution?
Thaut argues the District Court erred in determining his ability to pay restitution for two reasons: first, the District Court failed to meet the statutory requirements of § 46-18242(1), MCA, in establishing the defendant's financial resources and future ability to pay; and second, the court violated his due process rights by sentencing him in a way that was fundamentally unfair by failing to consider several factors in determining his ability to pay $69,457 in restitution.
Thaut says the factors that the District Court failed to consider are: Thaut is currently 52 years old and by the time he can be paroled in 2008, he would have a short amount of time to work in order to make his restitution payments; he will be unable to pay the restitution as he already has a $427,000 civil judgment against him in favor of Meyers; Thaut's most recent past employment consisted of minimum wage jobs; Thaut had no assets at the time of sentencing and has no ability to acquire assets in the future; finally, Thaut suffers from mental health issues resulting from a 1973 car accident in which he allegedly sustained a head injury .
The record establishes the District Court's decision was based upon substantial evidence Thaut would have the ability to pay some restitution from his prison earnings and more should he make parole. Thaut himself stated that he could pay, before he learned that he would have to spend some time in prison, and the District Court did not abuse its discretion in believing this version of his testimony.
We conclude the District Court adequately complied with all of the statutory requirements in determining the amount of restitution Thaut had the ability to pay. Under § 46-18-201(5), MCA (1997), sentencing courts were required to impose a sentence that included payment of full restitution whenever the court found the victim of the offense suffered a pecuniary loss. "However, this general mandate is subject to the detailed procedures and qualifications found in §§ 46-18-241 to 249, MCA. District courts are not authorized to impose a sentence of restitution until all these additional statutory requirements are satisfied." Pritchett , 7.
The District Court relied upon the information in both the PSI and the Supplemental PSI, in addition to the testimony presented at both of the sentencing hearings, in determining the proper amount of restitution, and Thaut's ability to pay du
Page 1 2 3 4 5 6 7 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|