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State v. Heath5/14/2004
h the evidence did not support valuing the entire collection at $120,000, "Ms. Cooper's testimony is very credible regarding the items that remain missing . . . particularly based upon her ability to describe in detail each of those items and the photographs that support that description . . . ." Citing Cooper's testimony, and making comparison to the expert testimony offered by Hendrickson about the value of the recovered items, the District Court concluded that the fair market value of the missing items was $22,500. Heath argues this figure is "nothing but conjecture."
We conclude that the District Court's valuation was not clearly erroneous. First, the District Court was careful to calculate restitution based upon a fair market value of the missing items, see Pritchett, 24, and not replacement value, acknowledging that "I do not, by any means, necessarily think that this amount of money will make Ms. Cooper whole." Cooper gave detailed testimony, with photographs, about the 75 missing items. Hendrickson offered expert testimony about valuation based upon the 54 recovered items, against which the missing items could be compared. The court found Cooper's testimony "very" credible. "The credibility of witnesses and the weight to be given their testimony are determined by the trier of fact, whose resolution of disputed questions of fact and credibility will not be disturbed on appeal." Hilgers , 12. We affirm the amount of restitution ordered by the District Court.
4. Did the District Court err by failing to establish the amount, method and time of restitution payments?
Heath argues that the District Court erred by failing to set the "amount, method, and time of each payment to the victim," as required by § 46-18-244(1), MCA. In the judgment, the District Court ordered Heath to pay restitution "on a schedule to be supervised and regulated by the Adult Probation and Parole Field Services."
The State acknowledges that the court's order did not "technically comply" with the statute, but argues that the purposes of the statute were nonetheless accomplished. However, we have repeatedly required compliance with this statutory provision. See Brown , 263 Mont. at 227, 867 P.2d at 1101; Prichett , 16; and Flanagan , 44. Thus, we reverse this portion of the judgment and remand for an amendment properly addressing the time and method of Heath's restitution payments.
Affirmed in part, reversed in part, and remanded for further proceedings.
JIM RICE
We concur:
KARLA M. GRAY
JOHN WARNER
JIM REGNIER
W. WILLIAM LEAPHART
PATRICIA O. COTTER
JAMES C. NELSON
[Editor's Note: Attachment Unavailable]
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