State v. Hilgers, 97-374.

• Decision Date: 23 November 1999
• Docket Number: No. 97-374.,97-374.
• Citation: 989 P.2d 866,1999 MT 284,297 Mont. 23
• Parties: STATE of Montana, Plaintiff and Respondent, v. Scott William HILGERS, Defendant and Appellant.
• Court: Montana Supreme Court

989 P.2d 866

1999 MT 284

297 Mont. 23

STATE of Montana, Plaintiff and Respondent, v. Scott William HILGERS, Defendant and Appellant.

No. 97-374.

Supreme Court of Montana.

Submitted on Briefs April 8, 1999.

Decided November 23, 1999.

Margaret L. Borg, Chief Public Defender, Marcia M. Jacobson, Public Defender Office, Missoula, Montana, for Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana; Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Scott William Hilgers pled guilty before the Fourth Judicial District Court, Missoula County, to charges of theft and issuing bad checks. He appeals a restitution provision of his sentencing order. We remand for additional proceedings consistent with this Opinion.

¶ 2 The issue is whether the District Court erred in ordering Hilgers to pay restitution in the amount of $33,595.48.

¶ 3 In March 1996, Hilgers pled guilty to issuing over fifty bad checks and to stealing cash and diverting checks and money orders from his employer, Sentinel Collections, from 1994 to 1995. At his sentencing hearing, the State presented testimony by a certified public accountant who had examined the records of Sentinel Collections and determined that during the period at issue, there was a potential misallocation of funds in the amount of $33,595.48. The owner of Sentinel Collections estimated that she lost over $70,000 as a result of Hilgers' thefts. Hilgers testified that by his calculations, the amount of money he took from Sentinel Collections was no more than $6,000.

¶ 4 In addition to sentencing Hilgers to a total of twenty years under the supervision of the Department of Corrections, ten years of which it suspended, and ordering him to pay restitution to the victims of his bad checks, the District Court concluded that the State of Montana had established by a preponderance of the evidence that at least $33,595.48 was diverted from Sentinel Collections. Hilgers was ordered to repay that amount in restitution to the owner of Sentinel Collections. He appeals.

Discussion

¶ 5 Did the District Court err in ordering Hilgers to pay restitution in the amount of $33,595.48?

¶ 6 This Court reviews a district court's imposition of a sentence for legality only. State v. Richards (1997), 285 Mont. 322, 324, 948 P.2d 240, 241. In reviewing the court's findings of fact as to the amount of restitution, our standard of review is whether those findings are clearly erroneous. See State v. Perry (1997), 283 Mont. 34, 36, 938 P.2d 1325, 1327

.

¶ 7 Section 46-18-201(5), MCA (formerly § 46-18-201(2), MCA (1997)), provides that if a victim of a criminal offense has sustained a pecuniary loss, the court shall require the defendant to make full restitution to the victim. Checks, money orders, and cash which Hilgers stole from Sentinel Collections clearly qualify as a pecuniary loss.

¶ 8 Hilgers cites State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098, in arguing that the amount of any pecuniary loss must be documented in the presentence investigation. In Brown, we cited § 46-18-242, MCA, 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 or by the board of crime control if compensation for the victim's loss has been reimbursed by the crime victims compensation and assistance account.

Hilgers correctly states that district courts are not authorized to order restitution until all statutory requirements are satisfied. In Brown, we remanded for further proceedings with regard to restitution and the entry of appropriate findings. Brown, 263 Mont. at 229, 867 P.2d at 1102. ¶ 9 In the present case, like in Brown, the presentence investigation does not document the amount of the victim's pecuniary loss. However, unlike the defendant in Brown, Hilgers entered a plea agreement specifically providing that the amount of restitution was to be agreed upon by the parties prior to sentencing and if the parties were unable to agree to the amount of restitution owing, Hilgers would allow the court to make that determination. The District Court held a full evidentiary hearing on the amount of pecuniary loss to Sentinel Collections. At that hearing, Hilgers had the opportunity to present evidence and to cross-examine the State's witnesses. We conclude that under these circumstances, the failure of the presentence investigation to set forth the amount of restitution owed to Sentinel Collections is not fatal.

¶ 10 Hilgers also argues on appeal that the amount of restitution which he was ordered to pay is not supported by the record. He points out that the police detective who investigated the...