State v. K. Bray ( 2023 )

12/12/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0168 DA 22-0168 _________________ STATE OF MONTANA, Plaintiff and Appellee, v. ORDER KEVIN BRAY, Defendant and Appellant. _________________ Appellant Kevin Bray appeals from the Sentencing Order and Judgment of the Eighth Judicial District Court, Cascade County, in its Cause No. DDC-20-020(b). Bray argues the District Court erred by illegally imposing certain conditions and by failing to order that his restitution order offset the civil judgment to recover the same funds. The State has filed a Notice of Concession that this matter should be remanded to the District Court for the purpose of entering an amended sentence and judgment. The State agrees that in this case sentencing conditions 21 and 22, which prohibit Bray from entering bars and casinos, have no nexus with his offense of theft by common scheme and thus are not properly imposed. The State further agrees that any amounts Bray pays in restitution to his victims must be offset by any payments the victims receive in their corresponding civil judgment and that the Sentencing Order and Judgment in this case should be amended to reflect the same. Based on Bray’s opening brief and the State’s concession, and good cause appearing, IT IS HEREBY ORDERED that this case is REMANDED to the Eighth Judicial District Court, Cascade County, with instructions for the District Court to amend its Sentencing Order and Judgment to STRIKE the conditions noted above. IT IS FURTHER ORDERED that the District Court shall AMEND its Sentencing Order and Judgment to provide the restitution offset as described above. IT IS FURTHER ORDERED that the remainder of this appeal is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that REMITTITUR shall issue IMMEDIATELY UPON REMAND. The Clerk is directed to provide copies of this Order to all counsel of record and to presiding judge Honorable Elizabeth A. Best. DATED this 12th day of December, 2023. For the Court, /S/ DIRK M. SANDEFUR Acting Chief Justice 2 Electronically signed by: Dirk Sandefur Justice, Montana Supreme Court December 12 2023