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State v. Heath5/14/2004
ative history, we conclude that the reference made in subsection (5) of § 46-18-201, MCA (1999), to "the penalties imposed pursuant to subsection (1) " was a simple codification error which was not intended to make any change in the substance or effect of the statute. The re-codification of the statute under House Bill 48 resulted in a cross reference error which was completely inconsistent with clear legislative intent. We further conclude that it was the Legislature's full intention that subsection (5) cross-refer, not to subsection (1), but to subsection (4), which contains all of the penalties and conditions which may be imposed for both deferred impositions of sentences and for suspensions of sentences.
This Court will not permit legislative intent to be thwarted, and the whole of the judiciary's sentencing authority to be undermined, by a mere scrivener's error. Further, the interpretation of § 46-18-201(5), MCA (1999), we have adopted today will give effect to the other statutory provisions providing for and implementing the payment of restitution to victims under suspended sentences which would otherwise be rendered meaningless or uncertain.
Having determined that the Legislature did not eliminate the express authority of sentencing courts to impose restitution for any sentence, we also conclude that it did not disturb the line of cases, referenced herein, which have interpreted the sentencing provision now set forth as § 46-18-201(4)(n), MCA (1999). Sentencing courts remain authorized to impose restitution when "considered necessary for rehabilitation or for the protection of the victim or society," as held by the District Court, when there is an appropriate correlation to the offense committed.
The District Court's imposition of restitution herein is affirmed.
2. Did the District Court err in ordering restitution because the Presentence Investigation Report contained insufficient information?
Heath argues that the District Court erred in imposing restitution because the PSI contained insufficient information to satisfy § 46-18-242(1), MCA (1999), which provides:
(1) Whenever the court believes that a victim of the offense may have sustained a pecuniary loss as a result of the offense or whenever the prosecuting attorney requests, the court shall order the probation officer, restitution officer, or other designated person to include in the presentence investigation and report:
(a) documentation of the offender's financial resources and future ability to pay restitution; and
(b) documentation of the victim's pecuniary loss, submitted by the victim . . . . Although acknowledging that the PSI included "some" of this information, Heath contends that it was insufficient to satisfy the statute, citing our holdings in Brown , Hilgers and Pritchett that the respective presentence reports in those cases were deficient. Heath asserts that his PSI inadequately documented his resources, his future employability and ability to pay restitution and the victim's pecuniary loss.
Heath's PSI noted that he was currently unemployed and without income, but that he "has worked construction and in restaurants in the past." It indicated that he had completed 11 grades in school and had also obtained a GED. It noted that he had no assets, had debts of $1,000, and had no support obligation for his three children. The report stated that Heath had family in the Billings area and that Heath should be required to "secure and maintain full-time, legitimate employment."
In State v. Flanagan , 2003 MT 123, 39, 316 Mont. 1, 39, 68 P.3d 796, 39, we approved a PSI with similar information,
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