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State v. Setters6/12/2001
APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C. B. McNeil, Judge presiding.
Submitted on Briefs: March 2, 2000
Robert Setters (Setters) was convicted in the District Court for the Twentieth Judicial District, Lake County, on a charge of tampering with public records or information. Setters had also been charged with theft by accountability for benefits received under various public assistance programs, but that charge was dismissed pursuant to a plea agreement. Setters appeals the District Court's order requiring him to pay restitution to the Department of Public Health and Human Services (DPHHS) in connection with the dismissed charge. We reverse.
The issues on appeal are:
. Whether the District Court erred in requiring Setters to pay restitution.
. Whether the District Court properly considered Setters' ability to pay when it established the amount of restitution.
. Whether the District Court erred in assessing a penalty in addition to restitution.
Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Setters to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Setters' ability to pay said restitution or the question in issue 3 regarding the civil penalty.
Factual and Procedural Background
Setters is a Vietnam veteran who was determined by the Veterans Administration (VA) to be suffering from post traumatic stress disorder (PTSD) and, as a result, is 100% disabled and unable to obtain gainful employment. As a result of the PTSD disability determination, Setters received over $100,000 in back pay in 1995 and continues to receive $2,368 per month in veteran's disability benefits, subject to cost of living adjustments. Setters now lives at the family home in Arlee with his wife and four of his five children. Setters claims that during the period his wife received the public assistance at issue here, he did not reside with his family.
From July of 1989 through November of 1995, Setters' wife applied for and received various forms of public assistance including Food Stamps, Aid for Families With Dependent Children (AFDC), and Medicaid, totaling approximately $93,000. Several individuals in the community of Arlee expressed their concerns to local authorities regarding the public assistance received by the Setters, precipitating an investigation by the Lake County Attorney's office. These individuals alleged that Setters was in fact living with his wife in Arlee and that the amount of public assistance being paid to Setters' family was improper. Of the $93,000 in public assistance received by Setters' wife, Deborah, $73,689.16 was later determined by the Montana Department of Justice Criminal Investigations Bureau (DOJ) to be overpayment.
Pursuant to the DOJ investigation, Setters was charged by information in August 1997, with the offense of accountability for theft, a common scheme, under §§ 45-2-302(3) and 45-6-301(4)(a), MCA. The State alleged that Deborah "purposely or knowingly obtained or exerted unauthorized control" over public assistance benefits when she claimed that Setters did not reside in her home resulting in higher payments to her than she was entitled. Setters pleaded not guilty to the charge. The State also filed charges against Deborah, but dismissed those charges with prejudice in a subsequent plea agreement with Robert.
The case proceeded to trial in January 1998. After a two-day trial, the jury indicated that they were hopelessly deadlocked. The District Court declare
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