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State v. Thaut12/20/2004
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We next turn to the question of whether the amount of restitution was appropriately determined by the District Court. Section 46-18-244(2), MCA (1997), provides:
In determining the amount, method, and time of each payment, the court shall consider the financial resources and future ability of the offender to pay. The court shall provide for payment to a victim of the full amount of the pecuniary loss caused by the offense. The offender may assert any defense that the offender could raise in a civil action for the loss sought to be compensated by the restitution order.
It is clear from a review of the record the District Court had not only testimony but an abundance of documentation, not objected to by Thaut, from which it could determine the proper amount of restitution owed. In its Supplemental Order dated September 12, 2001, the District Court stated:
In imposing this Order, the court has accepted without objection that the victim has suffered special damages in the amount of $57,000.00; in the form of medical expenses, $55,000.00; in property damage of $2,000.00. In addition, the Montana Board of Crime Control has awarded a grant of $12,457.00 which is how the total of $69,457.00 was arrived at. The court concludes that the Defendant would have the ability to pay this amount over the course of his sentence, and the court specifically finds that the Defendant was not credible in his testimony regarding his inability to pay back the restitution.
The result of the District Court's order is that, after considering the information presented, it determined Thaut had the ability to pay restitution and he must pay only medical expenses, the grant from the Board of Crime Control and property damage. This decision is amply supported by the record.
Should Thaut, without fault on his part, find he is unable to meet his obligation to pay both restitution and the civil judgment, he could petition the District Court for relief. If at such time the District Court determines he is indeed unable to pay, it may order him to perform community service for which he will receive a credit against restitution. Section 4618-241(3), MCA. Thaut has not been treated unfairly.
Therefore, we hold the District Court did not err when it ordered Thaut to pay restitution in the amount of $69,457.
IV. CONCLUSION
We affirm the order of the District Court requiring Thaut to pay restitution in the amount of $69,457.
JOHN WARNER
We Concur:
KARLA M. GRAY
PATRICIA O. COTTER
JIM RICE
JIM REGNIER
Justice James C. Nelson dissents and concurs.
I concur with the Court's Opinion as to Issue 2. I dissent from our Opinion as to Issue 1.
I cannot agree that Thaut does not have standing to challenge the constitutionality of the amendments enacted by the Legislature under HB 220. The amendments referred to in our Opinion were specifically made retroactive by the Legislature "to offenders who have an unpaid restitution obligation on [the effective date of this act]"--the effective date being October 1, 2003. Accordingly, the effect of these amendments is not speculative as the Court opines. Rather, Thaut has and is suffering a present or threatened injury to both his property interests and to his civil rights. He is now and will be for years in the future burdened with a restitution obligation that may or may not be lawful, depending upon whether the amendments under HB 220 are constitutional.
I conclude that Thaut meets all of the tests articulated by the Court in 15, under Helena Pa
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