State v. Horton, 99-650.

• Decision Date: 12 June 2001
• Docket Number: No. 99-650.,99-650.
• Citation: 25 P.3d 886,2000 MT 100,305 Mont. 242
• Parties: STATE of Montana, Plaintiff and Respondent, v. Charles Rockwood HORTON, Defendant and Appellant.
• Court: Montana Supreme Court

25 P.3d 886

2000 MT 100

305 Mont. 242

STATE of Montana, Plaintiff and Respondent, v. Charles Rockwood HORTON, Defendant and Appellant.

No. 99-650.

Supreme Court of Montana.

Submitted on Briefs May 25, 2000.

Decided June 12, 2001.

Kevin S. Brown, Paoli & Brown, Livingston, MT, for Appellant.

Joseph P. Mazurek, Montana Attorney General, Tammy K. Plubell, Assistant Montana

Attorney General, Helena, MT; Tara DePuy, Park County Attorney, Livingston, MT, for Respondent.

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

¶ 1 Charles Rockwood Horton (Horton) was convicted in the Sixth Judicial District Court, Park County, of felony DUI and driving while his license was suspended. Horton appeals the District Court's sentencing order requiring him to pay his child support obligation, including an arrearage, and failing to award Horton credit for time already served. We reverse.

¶ 2 Horton raises the following issues on appeal:

¶ 3 1. Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.

¶ 4 2. Whether the District Court abused its discretion by ordering Horton to pay restitution without first considering his financial resources and future ability to pay.

¶ 5 3. Whether the District Court erred when it failed to credit Horton with time served in its written judgment after having allowed the credit in its oral pronouncement of sentence.

¶ 6 Because we hold in issue 1 that the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address the question in issue 2 of Horton's ability to pay said restitution.

Factual and Procedural Background

¶ 7 On the night of June 10, 1999, Horton was pulled over by law enforcement officers for driving erratically. One of the officers approached Horton's vehicle and, when Horton rolled down the driver's side window, the officer noticed the strong odor of alcohol. The officer asked Horton to exit the vehicle, but when Horton did so, he nearly fell over. Horton was then placed under arrest for suspicion of driving under the influence (DUI) and transported to the Park County detention center. At the detention center, Horton refused to undergo any tests. A search of Horton's driving record revealed that he had nine prior DUI convictions.

¶ 8 A further search of Horton's records revealed that he owed more than $47,000 in back child support. When his divorce decree was entered in 1988, Horton was ordered to pay $350 per month in child support. On November 14, 1996, Horton's monthly child support obligation was increased to $393 per month by administrative order. Horton failed to pay his support obligation, however, and on April 23, 1999, the Child Support Enforcement Division (CSED) sent him a letter giving him until May 14, 1999, to begin making monthly child support payments and to make payment arrangements for the arrearage. Horton refused to comply. As of June 1999, Horton's support obligation amounted to $49,867. Horton involuntarily paid $2,477 as a result of CSED's interception of a tax refund. Thus, Horton owed $47,390 in child support dating back to 1988, and his current support obligation was fixed at a rate of $393 per month.

¶ 9 At the time of his arrest on these latest offenses, Horton was already serving a suspended sentence for a June 1997 felony DUI conviction. He had only 26 days left on this suspended sentence when he committed the current offenses. On June 21, 1999, the Park County Attorney filed a petition to revoke Horton's suspended sentence. The petition also alleged that Horton had violated his sentence by failing to pay fines and supervision fees and for failing a drug test.

¶ 10 On June 28, 1999, the Park County Attorney charged Horton by Information with the commission of four offenses: driving under the influence of alcohol, a felony, in violation of §§ 61-8-401 and 61-8-731, MCA; driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA; habitual traffic offender operating a motor vehicle, a misdemeanor, in violation of § 61-11-213, MCA; and nonsupport, a felony, in violation of § 45-5-621, MCA. On July 6, 1999, Horton appeared with his counsel and pleaded not guilty to all of the charges. The District Court remanded Horton to the custody of the Park County Jail.

¶ 11 Horton and the Park County Attorney executed a written plea agreement on August 13, 1999, wherein Horton agreed to plead guilty to the traffic offenses and the County Attorney agreed to dismiss the felony nonsupport charge. As part of the terms and conditions for dismissing the felony nonsupport charge, the County Attorney agreed to recommend a sentence of 13 months with the Department of Corrections, to be served in a pre-release program, followed by four years of probation. The plea agreement also listed the following as part of the terms and conditions of the probationary sentence:

Defendant shall pay child support at the rate of $393 per month and an additional sum of $200 per month towards the arrearage. Defendant shall pay the total amount of arrearage in full sixty (60) days prior to the end of his probationary period.

¶ 12 Horton appeared before the District Court on August 16, 1999, and, pursuant to the plea agreement, he pleaded guilty to the DUI charge, the charge of driving while his license was suspended or revoked, and the charge of being a habitual traffic offender operating a motor vehicle. In addition, Horton had included the following handwritten notation above his signature line in the plea agreement:

State will not seek any additional or consecutive time from the underlying Petition to Revoke. Parties Agree that the Defendant can argue against the State's recommendations regarding fines & payment of support arrearages contained within [the plea agreement].

¶ 13 At the sentencing hearing on September 7, 1999, the District Court dismissed without prejudice the misdemeanor charge of being a habitual traffic offender because the State failed to provide proof that a valid habitual-offender designation was in place at the time of the offense. In addition, Horton's counsel informed the court that Horton objected to the court ordering him to pay any child support arrearage. Counsel argued that because the nonsupport offense had been dismissed, Horton would be paying restitution on a count for which he had not been convicted.¹ Counsel also objected to the fact that the State was seeking restitution without regard to Horton's financial resources or future ability to pay restitution.

¶ 14 Nevertheless, the District Court ordered Horton to pay his monthly child support obligation of $393 and an additional $200 per month toward the arrearage. The court sentenced Horton to 13 months at the Department of Corrections followed by four years of probation. The court expressly promised to revoke Horton's probation and give him four years in prison with no parole if he did not pay his child support as ordered.

¶ 15 Horton remained incarcerated at the Park County Jail from the time of his arrest on June 10, 1999, through his sentencing hearing on September 7, 1999. At the sentencing hearing, Horton's counsel asked if Horton would get credit for the time he served in jail. The Judge responded: "Yeah. It's automatic you get credit for time served." However, in his written sentence, the Judge refused to credit Horton for time served prior to sentencing on the basis that Horton was being held on a probation violation.

¶ 16 On appeal, Horton asks that we vacate the paragraph in the District Court's Judgment and Order of Sentence wherein the court ordered Horton to pay his child support as well as the paragraph in the judgment wherein the court ordered that Horton not be given credit for time served prior to sentencing.

Standard of Review

¶ 17 This Court reviews a district court's imposition of a sentence for legality only. State v. Hilgers, 1999 MT 284, ¶ 6, 297 Mont. 23, ¶ 6, 989 P.2d 866, ¶ 6 (citing State v. Richards (1997), 285 Mont. 322, 324, 948 P.2d 240, 241). See also State v. Rennick, 1999 MT 155, ¶ 7, 295 Mont. 97,

¶ 7, 983 P.2d 907, ¶ 7; State v. Graves (1995), 272 Mont. 451, 463, 901 P.2d 549, 557. The standard of review of the legality of a sentence is whether the sentencing court abused its discretion. Rennick, ¶ 7. 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. Hilgers, ¶ 6 (citing State v. Perry (1997), 283 Mont. 34, 36, 938 P.2d 1325, 1327).

Issue 1.

¶ 18 Whether the District Court exceeded its statutory authority by ordering Horton to pay restitution for a dismissed count.

¶ 19 Horton argues that the District Court abused its discretion and exceeded statutory mandates when it ordered him to pay restitution—the child support arrearage—for an offense which was dismissed and for which he was never convicted—the felony nonsupport charge. Horton maintains that through the handwritten addendum to the plea agreement, he reserved his right to object to any award of restitution for the dismissed count. Hence, he argues that there was no agreement between himself and the State obligating him to pay such restitution.

¶ 20 Horton also argues that under State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098, restitution is statutorily limited to the "victim" of the crime. Thus, Horton maintains that Montana's statutory mandates would allow the District Court to order restitution for any victim who sustained pecuniary or economic loss as a result of the crimes for which he was convicted. But, since he was convicted of felony DUI and driving without a valid license and there were no victims sustaining pecuniary or economic loss as a result of those crimes, Horton argues that restitution was inappropriate in this case.

¶ 21 The State argues on the other hand that, as a result of the...