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State v. Setters6/12/2001
with public records or information for giving false information to obtain a liquor license. He did not plead guilty to, nor was he convicted of, the charge of theft by accountability. Consequently, the "victim" of the crime for which Setters was convicted--tampering with public records or information--was not DPHHS and Setters cannot be ordered to pay restitution to DPHHS for the offense of theft by accountability--a crime for which he was not convicted.
Setters also argues that, contrary to the District Court's statement at the sentencing hearing and in its written judgment, the restitution condition does not have a rehabilitative purpose. We agree.
Section 46-18-202(1)(e), MCA (1997), provides that a sentencing court may impose any condition or restriction "reasonably related to the objectives of rehabilitation and the protection of the victim and society." However, in interpreting that provision in State v. Ommundson, 1999 MT 16, 11, 293 Mont. 133, 11, 974 P.2d 620, 11, we held that a sentencing limitation or condition must have some correlation or connection to the underlying offense for which the defendant is being sentenced. There is no such correlation or connection in this case between Setters' conviction on the tampering charge and ordering him to pay restitution to DPHHS for his alleged theft of public assistance benefits. Consequently, the District Court's order did not meet the statutory requirements for the imposition of restitution on a suspended sentence.
Accordingly, we hold that the District Court exceeded its statutory authority by ordering Setters to pay restitution for a dismissed count as a condition of his sentence. Hence, we reverse the determination of the District Court as to restitution and we order that portion of Setters' sentence vacated.
Reversed.
JAMES C. NELSON
We Concur:
KARLA M. GRAY
JIM REGNIER
TERRY N. TRIEWEILER
Justice Patricia O. Cotter specially concurs and dissents.
I concur with the Court's conclusion that a district court's authority to impose sentences in criminal cases is defined and constrained by statute, and I agree with the Court's conclusion that there was no "victim" of the crime of which Setters was convicted and to whom Setters could be ordered to pay restitution over objection. However, for the reasons set forth in my concurring and dissenting opinion in State v. Horton, 2001 MT 100 , ___ Mont.___, ___ P.3d ___ , I respectfully dissent from this Court's order striking the restitution provisions from the District Court's Judgment and Order of Sentence.
As I proposed in Horton, I would remand to the District Court, with directions that the State be given the option of either accepting the sentence as amended by this Court, or, in the alternative, rescinding the plea agreement for failure of consideration. Should the State elect to rescind, the parties would be returned to their pre-plea agreement status, with Setters withdrawing his plea of guilty and all charges previously dismissed being reinstated. The State and Setters could thereafter either negotiate a new plea agreement or proceed to trial.
PATRICIA COTTER
Justice W. William Leaphart concurs in the foregoing special concurrence and dissent.
W. WILLIAM LEAPHART
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